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The provisions of this General Terms and Conditions of Service (GTCS) shall govern all services provided by the Pro QC group of companies, including Pro QC International Limited, Hong Kong, Pro QC International North America Incorporated and their subsidiaries (hereafter collectively referred to as “Pro QC”) unless otherwise expressly agreed to, in writing and signed by Pro QC and the beneficiary of the services provided (hereafter the Client). By accepting the services of Pro QC, Client agrees to be bound by the terms and conditions set out herein. Pro QC reserves the right to make changes to these GTCS at any time. Such change shall be valid and binding from the time they are posted on this website, proqc.com/ terms-of-service, which shall be considered the only valid source of the GTCS.
The GTCS were originally drafted in English. Clients engaging Pro QC for the provision of services agree to be bound by the English version. In the event of any uncertainty regarding the meaning of a translation, or discrepancy between the English and a translated version, the English version shall prevail.
Pro QC reserves the right to refuse any request for service provision on any grounds. No agreement for services between Pro QC and a Client shall create any obligation on the part of Pro QC to provide a particular service unless this obligation is expressly created under such an agreement for service provision and signed by both parties. Where such an obligation is considered to have been created, Pro QC shall be held to such an obligation, only to a reasonable extent given its available resources. Pro QC shall at no time, unless otherwise separately and expressly agreed to, accept any terms and conditions of service other than those herein contained.
The overall Service Cost for any service, due to Pro QC upon completion, consists of a Service Fee and Expenses.
The Service Fee is the base fee for service provision. Service Fees may vary by service, location, and over time. Pro QC may, but is not required to, provide a schedule of standard Service Fees. Any provision of Service Fee estimates, such as a schedule of standard Service Fees, shall not be deemed a quotation, and subject to change without notice. Client is advised to request from Pro QC the most up-to-date Service Fee for the particular service and respective service location.
Service Fees may be defined and quoted for in terms of Man-days (“Man-day Rate”), Man-hours (“Hourly Rate”), or for the entire service package (“Package Rate”). A Man-day shall consist of eight Man-hours inclusive of travel time, time-on-site and reporting. For Quotations providing a Man-day Rate, the minimum out of office charge shall be for one Man-day. Overtime rates are applicable at 1.5 times the Hourly Rate after 8 hours. Sundays and public holidays are charged at 2 times the Man-day or Hourly Rate as may apply.
Additional to the Service Fee are any Expenses incurred by Pro QC in the performance of the service, including but not limited to travel expenses and/or any other expenses which may necessarily arise in the course of service provision. Where such expenses may be incurred, Pro QC shall, prior to performance and where possible, inform Client. Client hereby agrees to reimburse Pro QC for any and all reasonable Expenses Pro QC may incur, unless an All-inclusive Service Fee has been quoted. All-inclusive Service Fees are inclusive of Expenses and no further service-related charges shall be payable by Client.
Service Costs, Service Fees, All-inclusive Service Fees and Expenses are exclusive of any Taxes which may be applicable and vary by service location. Applicable Taxes shall be indicated on Quotations and payable by Client.
Upon request for a particular service (“Service Request”) and once client had provided sufficient detail of the project required for service performance (“Client Requirements”), Pro QC shall provide Client with a Quotation indicating the Service Fee, Expenses for the performance of a service and applicable Taxes. Quotations may be in email format, a separate document or may, for Long Term Services, be included in a “Project Proposal”.
Quotations are valid for services performed on the date(s), at the location(s) quoted for (“Service Details”), and according to Client Requirements for the respective Quotation and, prior to acceptance of the Quotation by Client, subject to change without notice due to any scheduling or resource changes experienced by Pro QC. Any changes to Client Requirements or Service Details may invalidate a Quotation and result in the issue of a new one.
Pro QC may for certain projects, particularly Long Term Services, issue a Project Proposal listing information with regard to the nature of individual services including project goals and objectives, deliverables, schedules, timelines, man-days required, Service Costs or other information (“Project Details”). Such information shall, unless otherwise stated in writing, be deemed non-binding and subject to change throughout the project lifecycle.
Acceptance of a Quotation and booking of the service by Pro QC (“Service Booking”) occurs upon receipt of a signed Quotation from Client by Pro QC or email confirmation from Client that the Quotation has been accepted and that the service should proceed as quoted, providing the quotation remains valid, as determined by Pro QC. Once Service Booking has occurred, confirmation of the Service Booking shall be communicated to Client.
In the event of a cancellation of any service, including the cancellation of an entire Project or single service provided as part thereof, due to cancellation by Client or the supplier of Client whose facility or product is the subject of the Service (“Supplier”), due in no part to any fault of Pro QC, Client shall be invoiced only for Expenses already incurred and not redeemable by Pro QC, such as non-refundable transportation or accommodation costs. For cancellations by Client within 24 hours of performance (“Late Cancellation”), a Late Cancellation Fee equal to the base Service Fee shall apply in addition to any Expenses already incurred. Cancellations shall also include a change in Client Requirements or Service Details, or failure on the part of Client or Supplier to provide necessary information, documentation or samples, requiring a change in the Quotation or Service Booking. In the event that Pro QC personnel arrive at a Client or Supplier facility to perform a service and the facility or products are deemed unprepared, as determined by Pro QC, for the performance of the Service according to Client Requirements, the service shall be deemed canceled by the Supplier for which a Late Cancellation Fee shall apply. Pro QC reserves the right to cancel any Service Booking, at any time. No Service Costs shall be payable by Client for cancellation by Pro QC.
Pro QC may issue invoices for services rendered on a per-service basis for “Short Term Services” requiring one or more man-days performed within one calendar month or monthly for “Long Term Services” forming part of a project or program, requiring multiple man-days spread over two or more, consecutive months.
Where not otherwise specified on the Quotation: For Short Term Services, invoices shall be issued within 5 days of completion of the service; For Long Term Services, invoices shall be issued on or before the 10th day of each month for services rendered in the preceding calendar month. All invoices are payable upon receipt.
Notwithstanding the above, Service Provider may require prepayment of Service Costs. If prepayment is required, Client shall provide Service Provider with proof of payment in the form of a bank slip. Service scheduling shall commence upon receipt of satisfactory proof of payment however, Service Reports may not be released until payment has been received by Service Provider in full.
The amount invoiced is the net amount due to Pro QC. Any transaction, exchange and other charges levied by either bank or any intermediary shall be borne by Client.
A 10% Late Payment Fee may be applied to all payments not completed within 30 days of issue of the respective invoice. A 30% Late Payment Fee may be applied to all payments not completed within 90 days of issue of the respective invoice. Pro QC reserves the right to withhold service provision or the products of service provision to any Client with Outstanding Payments. In the event of a failure to complete any Outstanding Payments, Pro QC may without notice, place the Client’s account with a collection agency.
Payment methods accepted by Pro QC vary by region but may include payment by wire transfer, cheque, credit card or Paypal. Clients should refer to the payment details provided on Invoices. All international payments should be made with the ‘details of charges’ of OUR.
For purposes of these GTCS, “confidential information” shall mean any and all non-public information, including, without limitation, technical, developmental, marketing, sales, operating, performance, cost, pricing, know-how, business plans, business methods, and process information, disclosed to the Receiving Party. For convenience, the Disclosing Party may, but is not required to, mark written confidential information with the legend “confidential” or an equivalent designation.
All confidential information disclosed to the Receiving Party will be used solely for the business purpose foreseen in relation to these GTCS and for no other purpose whatsoever. The Receiving Party agrees to keep the Disclosing Party’s confidential information confidential and to protect the confidentiality of such confidential information with the same degree of care with which it protects the confidentiality of its own confidential information, but in no event with less than a reasonable degree of care. The Receiving Party may disclose confidential information only to its employees, agents, consultants and contractors on a need-to-know basis, and only if such employees, agents, consultants and contractors have appropriate agreements with Receiving Party sufficient to enable the Receiving Party to enforce all the provisions of this agreement. The Receiving Party shall not make any copies of the Disclosing Party’s confidential information except as needed for the business purpose. At the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party all confidential information of the Disclosing Party (including any copies thereof) or certify the destruction thereof.
All right title and interest in and to the confidential information shall remain with the Disclosing Party or its licensors. Nothing in this agreement is intended to grant any rights to the Receiving Party under any patents, copyrights, trademarks, or trade secrets of the Disclosing Party. All confidential information is provided “as is”. The disclosing party makes no warranties, express, implied or otherwise, regarding non-infringement of third-party rights or its accuracy, completeness or performance.
All Service Reports be deemed the property of Pro QC subject to the requirements on confidentiality listed in these GTCS.
The obligations and limitations set forth herein regarding confidential information shall not apply to information which is: (a) at any time in the public domain, other than by a breach on the part of the Receiving Party; or (b) at any time rightfully received from a third party which had the right to and transmits it to the Receiving Party without any obligation of confidentiality. If the confidential information is sought by any third party, including by way of subpoena or other court processes, the Receiving Party shall inform the disclosing party of the request, where reasonably practicable, with sufficient time to permit the Disclosing Party to object to and, if necessary, seek court intervention to prevent the disclosure.
Obligations of the parties with regard to non-disclosure of confidential and proprietary information as outlined in this agreement shall continue to remain in force following the termination of the business relationship between Disclosing and Receiving Party.
Client agrees that at no time during the term of this Agreement, and for a period of 2 years following the termination date of this agreement, will Client or any employee, officer, director, shareholder, agent or affiliate of Client attempt to circumvent Service Provider and solicit, as an employee, subcontractor or otherwise, the services of current employees or subcontractors of Service Provider without prior approval of Service Provider, or otherwise entice employees of Service Provider to terminate their employment with Service Provider in order to enter into an employment or subcontractor relationship with Client.
Limitation of Liability
Pro QC hereby warrants that it shall make every reasonable effort to exercise due care and diligence in the performance of services and that the Services shall be performed in a good and workmanlike manner, consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances. In this regard, Pro QC represents and warrants that it and its employees assigned to perform services retain the requisite skills, experience, qualifications, permits and licenses necessary to perform the service outlined in this agreement and that services will be performed in compliance with laws, regulations and policies applicable to the services in the regions where such services are performed. Furthermore, Pro QC shall take any and all reasonable measures to ensure that any specialized or technical equipment required for the performance of a Service, provided by Pro QC or obtained from a third party other than a Supplier, is calibrated and calibration has been verified.
Pro QC shall not be held liable with respect to any claim for loss or damage of whatever nature arising from any circumstance or event not within the reasonable control of Service Provider, if and to the extent that (i) such circumstance or event materially and adversely affects the ability of Service Provider to perform any Service subject to these GTCS, (ii) Service Provider has exercised all reasonable diligence and taken all reasonable precautions, due care and reasonable alternative measures, or had been directed by Client not to take such precautions and measures, in order to avoid the effect of such circumstance or event on its ability to perform the obligations arising under this Agreement and to mitigate the consequences thereof, and (iii) despite the exercise of reasonable diligence the circumstance or event cannot be, or be caused to be, prevented, avoided or removed.
Where the products of a service performed by Pro QC are relied upon in the pursuit of certification and/or verification by authorized third-party auditors to local or international standards or for legal compliance, the accuracy of the information supplied to Client is the Pro QC’s responsibility but the overall success of Client’s pursuit of such of certification and/or verification is the responsibility of Client. Pro QC cannot be held liable for the failure of Client, its employees, agents or other third parties on whom Client relies, to properly and accurately implement the system designed, recommendations, including Corrective Actions, proposed, follow any training provided, or generally make use, in the manner intended, of any of the products of the Service(s) performed by Pro QC. Pro QC, furthermore, makes no warranty as to the actual attainment of any performance improvements or achievement of performance targets sought by Client as part of Service(s).
The services provided by Pro QC and any memoranda, laboratory data, calculations, measurements, estimates, notes and other material prepared by Pro QC in the course of providing the services to Client, together with status summaries, any other communication in any form describing the results of any work or services performed or other product of a service (“Service Reports”) are issued based on the Services as requested by Client or its Affiliates. Pro QC recommends the use of Service Reports for purposes its creation was intended only.
For the purpose of performance of a service, information provided by Client shall be assumed to be complete, correct and up to date. Pro QC shall not be liable for any error resulting from reliance on such data. Where information is provided by a third party and relied upon for the performance of a service, Pro QC shall exercise reasonable efforts to verify the quality of such information including its truthfulness but do not make any guarantees as to the quality of such information. All recommendations made by Pro QC based on information from Client or a third party are subject to the limitations of the data upon which they are based including accuracy, precision, completeness, currency, and warranties of the data sources, or any other limitations which may exist. Where data is derived from Supplier provided equipment, calibration information from Supplier may be provided to Client.
Client hereby accepts that inspections of goods based on Acceptable Quality Limits (AQLs) and involving sampling may, by definition, result in non-conforming products forming part of the shipment of goods delivered to Client from Supplier. While Pro QC may make recommendations to Client on the appropriate Acceptable Quality Tolerance Level and thus sample size, the final decision rests with Client. Pro QC accepts no liability for negative effects resulting from Client’s selection of a sample size smaller than that recommended by Pro QC based on AQLs, nor actual conformity of any products supplied by Supplier other than the conformity, to Client requirements included in the scope of the Service, of those goods actually inspected by Pro QC, found to be conforming at the time of inspection and labeled as such. Repacking of goods following inspections is the responsibility of Supplier. Pro QC shall not be liable for any damage to goods inspected after the inspection of the item, including but not limited to that damage occurring during repacking, transport and once received by Client.
Client accepts that ultimate responsibility for any business decisions made by Client lies with Client and any services performed and certificates/reports issued by Pro QC do not relieve Suppliers from their contractual and legal responsibilities to deliver conforming products. Pro QC is not a guarantor nor a provider of insurance and does not guarantee or indemnify Client against, nor shall Pro QC accept and liability for, any liability for costs, damages, or otherwise, arising from reliance by Client on Service Reports or the information and recommendations contained therein, unless it is sufficiently evidenced that such damages are a direct result of gross negligence or wilful misconduct on the part of Pro QC or its employees. The liability of Pro QC shall in no case be greater than that portion attributable to the evidenced negligence or misconduct on the part of Pro QC nor shall such liability exceed a total aggregate sum equal to ten times the amount of the Service Fee for the particular service giving rise to such claim.
Where such a claim arises, client must file said claim with Pro QC within 60 days of receipt, by Client, of the shipment of goods inspected by Pro QC in the case of a claim in relation to inspection services or, in relation to services not related to the inspection of goods, within 60 days of Client becoming aware of the negligence or misconduct of Pro QC or its employees resulting in the claim. Where the claim involves any products inspected by Pro QC, Pro QC reserves the right to re-inspect any products subject to the claim. Where the claim relates to a non-inspection service, Pro QC reserves the right to conduct a root cause investigation of the issue, including any activity deemed necessary by Pro QC to ascertain the root cause or establish the proportion of Pro QCs liability. Such an investigation may be performed by Pro QC or a third party elected by Pro QC. Client and its Suppliers shall not refuse Pro QC or its elected representative access to any information or physical location necessary for the investigation. Any unreasonable refusal shall result in the forfeit of any claim made by Client. Pro QC shall in no case be liable if the client has outstanding payments due to Pro QC.
Client shall indemnify, defend, and hold Service Provider (and any other relation including but not limited to agents, affiliates, employees, directors or shareholders) harmless from any and all Client or third-party claims, demands, costs, liabilities, losses, expenses, and damages arising out of or in connection with i) Misrepresentation, default, misconduct, failure to perform or any other act or omission relating to Client’s obligations and responsibilities under these GTCS or breach thereof, and ii) Service Provider’s performance of its duties under these GTCS unless negligence or wilful misconduct on the part of Service Provider with respect to its duties hereunder is sufficiently evidenced. Where a dispute arises between the parties, the non-prevailing party shall indemnify the prevailing party against any and all attorneys, legal or other fees arising from the dispute.
Reservation of Rights
No forbearance, indulgence or relaxation or inaction by Pro QC at any time to require performance of any of the provisions of these GTCS shall in any way affect, diminish or prejudice the right of that party to require performance of that provision from the other, and any waiver or acquiescence by either party of any breach of any of the provisions of this Agreement shall not be construed as a waiver or acquiescence of any continuing or succeeding breach of such provisions or a waiver of any right under or arising out of this Agreement or acquiescence to or recognition of rights and/or position other than as expressly stipulated in this Agreement.
If any part of these GTCs is unenforceable because of any rule of law, public policy or for any other reason, such unenforceable provision shall be severed and the remaining provisions of the GTCS shall remain in full force and effect.
Governing Law and Jurisdiction
These terms and conditions shall be governed by and construed in accordance with the Law of Hong Kong, the courts of which shall have exclusive jurisdiction over any and all disputes or differences of any kind whatsoever between the parties in connection with or arising out of the Services provided by Pro QC to Client and subject to these GTCS.
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