Unless otherwise specified in section11below, the following General Terms and Conditions shall apply:
1. General obligations
1.1. DNV GL’s performance of the Work requires DNV GL to be granted access and right to inspection of all relevant sites and facilities and provision of all relevant documents and information. To this purpose, Customer shall in a timely manner make all necessary decisions and provide DNV GL with all reasonably necessary access to Customer’s sites and facilities and provide DNV GL with any and all relevant and correct and complete documentation and information required for the Work. Unless it is explicitly agreed as part of the Work that DNV GL shall identify discrepancies, errors, inconsistencies or omissions in the information provided by Customer, the Customer is responsible for all aspects of the information it provides and DNV GL is entitled to rely on the accuracy and completeness of such information in the performance of the Work.
2.1. Customer may cancel or reschedule execution of audits as communicated in the time of schedule planning, upon prior written notice to DNV GL (Notice of Postponement). DNV GL shall if the Notice of Postponement is received later than 30 (thirty) days prior to the agreed date of audit, be entitled to 100% (one hundred percent) of the agreed fee as compensations for the postponement.
2.2. DNV GL shall have the right to subcontract the performance of work under this Agreement to DNV GL Business Assurance Group AS or any of the group’s subsidiaries or to any duly qualified third parties.
3. Issuance and maintenance of the certificate of conformity
3.1 Upon completion of the certification process, DNV GL shall issue the certificate of conformity on behalf of the Accredited Body, to the Customer, provided DNV GL finds that there is conformity with the relevant management system certification scheme. Subject to payment being made by Customer in accordance with this Agreement, Customer shall have the right to use the valid certificate and certification marks in standard size and design as provided by DNV GL for the purposes for which such certificates are generally intended and used, including on letters, documents and other promotional material.
3.2. In case of incorrect reference to certification status or misleading use of certification documents or marks or other breach of the applicable requirements for the maintenance and use of the certificates and the certification mark as submitted by DNV GL together with the certificate of conformity, DNV GL or the Accredited Body may decide corrective actions as well as suspension or withdrawal of certificate and publication of the transgression. Customer shall immediately implement such corrective actions.
3.3. Customer must undergo all scheduled audits and visits. Customer must report all changes in its operations and management systems (hereunder changes in organisation, ownership, new products and services, location, number of employees, major incidents or stakeholder disputes etc.), which may reasonably affect the certificate of conformity, to DNV GL without undue delay and preferably before execution of such change. Based on this, and provided that the Customer wants to maintain the certificate of conformity, DNV GL may request to carry out unscheduled audits.
3.4. Customer must at all times ensure that the requirements of the relevant management system certification scheme(s) are complied with, and take necessary action in accordance with the reported non-conformities, observations, improvement opportunities and noteworthy efforts.
3.5. DNV GL or the Accredited Body may at its discretion suspend or withdraw any certificate of conformity issued with immediate effect, if the requirements stipulated in 3.1 -3.4 above are no longer satisfied or if payment by the Customer is not made in accordance with this Agreement.
3.6. If the certificate of conformity is suspended or withdrawn, the Customer shall not use or refer to the certificate of conformity. In case of withdrawal, the original certificate of conformity shall be returned to DNV GL within 14 days from the date of withdrawal. The Customer may appeal the DNV GL’s decision not to issue or to suspend or withdraw the certificate of conformity in accordance with the requirements set out in the applicable certification or accreditation scheme.
4. Intellectual Property
4.1. For the purpose of this Agreement, each party shall remain the sole owner of any of its intellectual property and rights thereto existing prior to the date of this Agreement , including, but not limited to, DNV GL templates for certificates, reports and checklists. DNV GL shall be entitled to use, for the purpose of its own certification activities, the know-how that DNV GL acquires in the course of the performance of the Work.
4.2. DNV GL shall hold all intellectual property rights to the reports and certificates issued to Customer under this Agreement (the Deliverables), including the copyright. Customer shall hold a restricted, global and royalty free license to use the valid certificates in accordance with the applicable requirements, and a global, royalty free license to use the reports for its own internal purposes. The reports shall not be disclosed to third parties without DNV GL’s prior written consent.
4.3. The Customer shall only make available the Deliverables or parts thereof to third parties without altering the content, context or original language of the Deliverable.
5.1. Each party agrees to keep any information it receives from the other party in course of the Agreement which by denotation or reasonable circumstances is considered confidential to the disclosing party, in confidentiality. The recipient party shall treat such received information with reasonable care and diligence, not disseminating or disclosing it to third parties without the other party’s prior written consent, provided however that DNV GL may share such information with its officers, employees, subsidiaries, affiliates or subcontractors who are subject to confidentiality obligations reflecting the principles herein.
5.2. The obligations hereinabove shall not apply to and each party shall be free to disclose, any information which: (i) was known to the recipient prior to the information being disclosed by the other party, or becomes known to the recipient through a third party without any confidentiality obligation; (ii) is or becomes generally available in the public domain through no act or failure to act on the part of the recipient; and (iii) is required to be disclosed by any relevant accreditation body, any competent court, governmental agency, or other relevant public authority in accordance with applicable law, court order or other public regulation.
5.3. Notwithstanding the above, DNV GL shall have the right to (i) use for statistical and analytical purposes any information generated in the course of the Work, provided that such is kept internal or published only in aggregated anonymous forms; (ii) make reference to the Customer in DNV GL’s marketing; and (iii) extend the audit teamwith third parties as set out in this Agreement.
5.4. The obligations in this section shall survive the completion of the Work or termination of this Certification Agreement and remain in effect for as long as the relevant information is confidential.
6.1. This Agreement shall remain in full force and effect until terminated by any one of the parties as set out in this Agreement.
6.2. Each party may terminate this Agreement by written notice to the other party under the following circumstances: (i) if the other party commits a material breach of this Agreement and fail to rectify such within 10 working days after the other party’s written notice; (ii) if the other party becomes insolvent, unable to pay its debts as they fall due, or subject to bankruptcy proceedings, receivership, dissolution, liquidation, wind-up or otherwise discontinue business; (iii) for convenience after serving the other party a written notice 60 days prior to termination.
6.3. If the Customer terminates this Agreement pursuant to Article 7.2(iii) or DNV GL terminates pursuant to Article 7.2(i) or 7.2(ii), DNV GL shall be entitled to full remuneration for the Work carried out prior to the termination and for all documented incurred unrecoverable costs as well as a standardised administrative termination fee of [GBP / one man-day].
7. Health, Safety and Environment (HSE)
7.1. Both parties shall employ reasonable standards for promoting health, safety and environmental sound working environments for their respective personnel and work sites.
7.2. The Customer shall inform DNV GL without undue delay of any (i) actual or potential HSE risk which Customer is aware of and which is reasonably relevant to the performance of the Work, and (ii) any of Customer’s implemented or planned measures against such risks that Customer require DNV GL’s personnel to adhere to.
7.3. Whenever DNV GL’s performance of the Works involves visits or work on Customer’s controlled facility or site, the Customer is responsible for the adequacy, stability, safety and legal compliance of the working environment, including reasonable measures to mitigate or control relevant risks. Whenever DNV GL’s personnel is present on Customer’s facilities or sites, DNV GL’s personnel will adhere to Customer’s HSE instructions provided according to this article. DNV GL and/or its personnel, including also its subcontractors, may refuse to carry out any activity, or visit any area or site, if DNV GL or its personnel in their sole discretion consider that relevant risks are unacceptable or not adequately addressed, contained or otherwise mitigated. Any such decision shall suspend both parties’ obligations without any liability or penalty until the parties have agreed on how to proceed.
8. Indemnification and liabilities
8.1. DNV GL and its parent companies, subsidiaries and affiliates, including the Accredited Body, as well as its and their respective employees, representatives, directors and subcontractors (collectively, “DNV GL Group”) shall not in any way be held liable for any of Customer’s and/or any of its subsidiaries, parent companies or affiliates, or its and their respective employees, representatives, directors and contractors’ (collectively, “Customer Group”) consequential or indirect loss arising from or in connection with this Agreement, including but not limited to loss of profit, use or goodwill, howsoever such may arise, whether in contract, tort, strict liability or otherwise.
8.2. Except in case of breach of the obligations under Article 5, Confidentiality, or in case of willful misconduct or other similar circumstance for which a party may not lawfully limits its liability under this Agreement’s applicable law, the maximum cumulative liability of DNV GL Group arising from or in connection with this Agreement, whether in contract or in tort, shall be limited to the lesser of (i) a sum equal to five times the remuneration paid to DNV GL under this Agreement, or (ii) USD 200,000 (twohundredthousand).
8.3. The Customer shall indemnify and hold harmless DNV GL Group from:
8.3.1. any liabilities, losses, damages, costs (including legal costs), claims and expenses incurred as a consequence of a failure of the Customer to fulfil its obligations regarding the provision of accurate and timely information, material or data and access to sites, as well as a consequence of the use of the certificate of conformity in breach of the applicable requirements.
8.3.2. any claims from other companies in Customer Group, whether in contract or in tort, arising from or in connection with this Agreement.
9. Force majeure
9.1. Delay in or failure of performance of either party hereto shall not constitute a default hereunder or give rise to any claim for damage if and to the extent such delay or failure is caused by any event beyond the control of the party affected which the party had no reasonable way of preventing or grounds to anticipate, including but not limited to an act of war, natural disaster, fire, explosion, labour dispute or any international sanctions or restrictions on trade. The affected party shall immediately notify the other party in writing of the causes and expected duration of any such occurrence.
10. Law and jurisdiction
10.1. This Agreement shall be governed and construed in accordance with the laws of United Kingdom.
10.2. Any dispute arising in relation to or as a consequence of this Agreement, which cannot be settled amicably through negotiations between the parties, shall be subject to the courts of London.