1. The applicant (hereinafter referred to as the "Client") applies to Ever Sincerity Test & Service Co., Ltd. (hereinafter referred to as the "E.S.T") for relevant services on a voluntary basis.
2.1 Test Reports and/or Inspection Certificates are issued by the E.S.T with reasonable care and appropriate skill on the basis of relevant documents, and where and when applicable, samples provided by the Client and in accordance with Client's specific instructions. Reports and/or Certificates will reflect the facts as recorded by the E.S.T at the time and site location of inspection. For the same commodity, different inspection results issued by the E.S.T or other inspection companies at different time, location or using different inspection methods, technology or instruments, does not in any circumstances whatsoever constitute any legal excuse or reason for lodging a claim against the E.S.T.
2.2 In case the Client requests the E.S.T to perform the services using specific testing methods or technology, the Client shall expressly inform these requirements to the E.S.T. After the E.S.T performs any test(s), inspection and/or surveying and issues Test Reports and/or Inspection Certificates using inspection methods or technology specifically requested by the Client, the Client shall not lodge any claim based on different results obtained by using other testing methods or technology.
2.3. The issuing of Test Reports and Inspection Certificates by the E.S.T does not release the Client from any rights, interests and/or obligations stipulated in the relevant contract. The E.S.T is not subject to or bound by any opposing
stipulations.
2.4 Test Reports and/or Inspection Certificates issued by the E.S.T, according to samples provided by the Client, do not express any conclusion of the E.S.T upon the lot from which the samples were drawn. The Client shall otherwise inform the E.S.T in advance expressly for the arrangement of sampling the whole lot if necessary.
2.5 Should the Client request the E.S.T to witnesses any third party intervention, the Client agrees that the E.S.T's sole responsibility is to be present at the time of the third party's intervention and to forward the results, or confirm the process of events occurring, for such an intervention. The Client agrees that the E.S.T is not responsible for the calibration or accuracy of instruments and measuring devices used, the analysis methods applied nor the qualifications of third party personnel and/or their analysis results.
3.1 The E.S.T is only liable for inspection results that are seriously inconsistent with the facts. The liability of the E.S.T for such a situation shall, under no circumstances, exceed a total aggregate sum equal to ten times the amount of the fee or commission paid for the service provided. The E.S.T shall have no liability for any indirect or consequential loss including any loss of expected profits in the contract with the third party, loss of future business and clients or loss of production and non-fulfillment of contract. As where and when several part-payment of inspection fees or commissions are involved, the fees or commission are to be calculated separately in compensating the Client for those inspection results seriously inconsistent with the facts, i.e. only one or several items of inspection fees (not all the fees or commission due or paid to the E.S.T) covering serious mistakes shall be calculated as the basis of compensation.
3.2 In the event of any claim due to serious mistakes in the Test Reports and/or Inspection Certificates of the E.S.T, the Client must lodge the claim against the E.S.T within 12 months from the date of contract-signing with the E.S.T. The method of claim may include requesting the E.S.T directly for compensation, suing at a court of law or applying for arbitration. The E.S.T shall be discharged from all liability for claims lodged out-side of the stipulated period.
3.3 The E.S.T performs the inspection, the issuing of the Test Reports and/or Inspection Certificates at the mutually agreed date, exclusive of the cases in which situations and conditions beyond the E.S.T prevent it to do so.
4.1 Should the E.S.T receive documents reflecting contractual arrangements between the Client and third parties or third party documents, such as copies of sale contracts, letters of credit, bills of lading, etc., they are considered to be for information only, and do not extend or restrict the scope of the services or the obligations accepted by the E.S.T.
4.2 The Client will ensure that sufficient information, instructions and documents are given in due time to enable the required services to be performed. The E.S.T shall not be regarded as breaching any contract and will be released from all liability due to the delayed submitting of sufficient information by the Client, that may result in delayed testing, inspection, surveying or issuing of Test Reports and/or Inspection Certificates.
4.3 The E.S.T is not liable for or due to any consequences resulting from incorrect, omitted or false documents and/or information provided by the Client.
4.4 For the E.S.T's service validity, the Client shall provide the E.S.T with accurate, valid telephone/fax numbers, e-mail and location address details to ensure the E.S.T personnel receive fax, e-mail or correspondence etc from Client in a correct and vice versa manner. The Client shall inform the E.S.T of any changes in such contact details. Otherwise, the E.S.T is not responsible for any delayed delivery thereof.
5.1 All samples provided by the Client shall be retained by the E.S.T for 30 days from the date of issuing the Test. Reports and/or Inspection Certificates except if otherwise agreed in writing, the E.S.T may, at its discretion, dispose of those samples retained for more than the 30 days or over any other prior mutually agreed period. The E.S.T may return samples to and at the prior request of the Client with all relevant expense to do being borne by the Client. Storage of samples for more than 2 weeks out of the agreed period shall incur a storage charge payable by the Client.
5.2 The E.S.T only provides the place for retaining samples and is not liable for any damage, reduction or loss of samples.
5.3 Client shall expressly inform the E.S.T of the characteristics, methods and duration of storage for samples and any known hazards or dangers etc.. In case of highly noxious or dangerous samples being involved, the E.S.T is entitled to request the Client to provide a relevant place for storage.
5.4 Should any law-enforcement department seal, detain or take away the samples or any other lawful measure taken relevant to samples, the E.S.T will no longer be liable for keeping samples, and Client shall not be entitled to claim for any compensation thereof.
6.1 The Client will pay the agreed amount of fees in the appropriate time period. In case the relevant clause period is unclear, the Client shall pay the fees within 30 days upon the E.S.T issuing the Payment Notice. Should the Client have objections regarding the Payment Notice, it must inform the E.S.T within 10 days upon receiving the Payment Notice. Otherwise, the amount notified is to be regarded as accepted by Client. In case of failing to pay the amount due in time, a penalty for breach of contract will be incurred on the part of the Client at a rate of 0.1% per day from the due date up to the date payment is actually received.
6.2 The Client shall not be entitled to retain or defer payment of any amounts due to the E.S.T on account of any financial dispute, or delay to compensate the E.S.T.
6.3 During the course of testing, inspection, surveying or other services, the E.S.T shall be entitled to immediately and without liability either suspend or terminate service provisions in the event of any suspension of payment, insolvency, cessation of business or bankruptcy by the Client. If the E.S.T is unable to perform all or part of the services due to any such afore-described situation, the E.S.T shall take no responsibility for violation of contract and nevertheless be entitled to payment of all fees and expenses equal to the proportion of the services actually carried out.
6.4 Client shall pay all fees and expenses actually incurred by the E.S.T for suspension of services as result of the Client's own reasons
6.5 In the event any unforeseen problems or expenses arising from and during the course of carrying out the required services, the E.S.T shall endeavor to inform the Client accordingly and shall be entitled to charge additional fees to cover extra time and cost incurred by necessity to complete the services unless the Client gives notice to the E.S.T in writing to suspend or terminate the service.
7. Any affiliate companies, representative offices or testing, inspection companies having Cooperation Agreement with the E.S.T may perform the whole or part of the service contract on the E.S.T's behalf.
8.1 Client will take all necessary steps to eliminate any obstacles to the performance of the required services. The Client will ensure that all necessary measures are taken with reasonable care for safety and security at working locations and conditions prevailing during the performance of services and will not rely, in this respect, on the E.S.T's advice whether required or not. In case of failing to do so, the E.S.T and its staff are entitled to refuse work at the said locations. The Client shall be liable for compensation from any damage of losses to the E.S.T in case of insufficient safety protections.
8.2 The Client will inform the E.S.T in writing in advance of any known hazards of dangers, actual or potential, associated with any lot of goods or samples or testing/inspection including, for example, presence or risk of radiation, toxic or noxious elements or materials, environmental pollution or poisons. The Client will take full responsibility for personnel injury, damage or loss of property owned by the E.S.T due to non-performance of such notice.
9.1 The Clients application paper for services will be invalid without the seal of the lawful entity or the signature of its agents.
9.2 The Client guarantees the authenticity and correctness of the contents in the application form for the services required and takes all responsibilities for any wrong inspection results or other losses resulting from false and/or wrong information provided.
9.3 Once a written application form for services is signed, it becomes a binding contract between both parties. The contents of all the relevant documents cannot be altered, modified or abandoned without mutual written consent.
10. Should the Client request the samples provided by them (having been tested at the E.S.T's laboratory) to be tested at the laboratory of any third party, the E.S.T shall not be responsible for the results of the third party. Upon request, the E.S.T can only issue certificate indicating the origin of samples and the fact of sending the samples to the third party laboratory.
11. The E.S.T is neither an insurer nor a guarantor and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should otherwise obtain appropriate insurance.
12. The Client should not, under any circumstances, alter, adjust or hinder the contents and appearance of the E.S.T's reports or certificates. The E.S.T reserves the copyright for the whole or part of Test Reports and/or Inspection Certificates. Client shall not use them for commercial purposes, such as business promotion without the consent of the E.S.T.
13. The E.S.T takes no responsibility in case the Client, in violation of the relevant regulations of China or abroad, purposely imports/exports or undertakes business covering restricted or banned goods.
14. These terms shall be governed by, and interpreted in accordance with the laws of the People's Republic of China. All disputes arising in connection herewith shall be settled according to the specific jurisdiction stipulations between the Client and the E.S.T.
15. These terms are drafted in the Chinese and English languages. In the event of any discrepancy in interpreting, the Chinese version shall prevail.