Terms and Conditions
1. MEANINGS AND INTERPRETATION
1.1 In these Terms the following definitions apply:
Certificate: a certificate of registration that is issued by ECAAS to record Certification.
Certification or Certified: an organisation holding current and valid certification of registration, issued by ECAAS.
Certification Procedures: the procedures we use in assessing management systems and/or processes for the purpose of determining whether Certification requirements are met.
Contract: the Contract between us and you, based on the combination of these Terms, our Quotation and our Mark Licence Terms.
Authorised ECAAS Mark: a Mark of which the use has been authorised in writing by ECAAS.
Authorised ECAAS representative: Client Relations Manager, Client Services Manager or Director of ECAAS Pty Ltd
Person: includes a body politic or corporate, an individual and a partnership.
Services: services provided by ECAAS as part of a contract.
Terms: ECAAS Terms & Conditions
Standard: the Standard that specifies the requirements for Certification
OHS: Occupational Health and Safety
you: the organisation who has engaged us to provide the Services.
ECAAS, we or use: ECAAS Pty Ltd (ACN 104 429 898) and divisions (West Coast Certification, Queensland Certification and Kiwi Certification) and its subsidiary, Kaizendo International Ltd. Registered Company Number 0100 –01-197817.
1.2 In these terms singular includes plural and vice versa and headings are for ease of reference only.
2.1 These Terms & Conditions:
(a) apply to each Contract for Services between ECAAS and another party;
(b) together with the Quotation, Mark Licence Terms and/or any special terms agreed (if any) are the sole terms and conditions of a Contract;
(c) do not apply to the extent they are inconsistent with any special terms agreed (if any) for a Contract; and
(d) prevail over any terms put out by you unless an authorised representative of ECAAS has agreed to those terms in writing.
2.2 We may accept or reject any request for Services.
2.3 None of our employees, agents or contractors may add to or vary these Terms & Conditions without the prior written approval of an authorised representative of ECAAS.
2.4 We may vary these Terms at any time by notice to you, including any variation necessary for us to satisfy any requirement of an accreditation authority we subscribe to.
2.5 If and to the extent that there is any inconsistency between any of these Terms & Conditions and any Certification Procedures these terms will prevail.
3. PROVISION OF SERVICES
3.1 We agree to provide you with the Services specified in a Contract.
3.2 You accept responsibility for the safety of our employees, agents and contractors in activities required under the applicable Certification Procedures, including the provision of all relevant safety or protective clothing and/or equipment and advising us appropriately of any safety hazards or special training requirements.
3.3 You agree to comply with the applicable Certification Procedures and to provide our employees, agents and contractors with all co-operation and assistance required to enable us to provide the Services, including reasonable access to your premises, facilities, documents, records and personnel and where applicable, cooperate in arranging reasonable access to the same with your contractors and agents.
3.4 You warrant that all information you provide or make available to us is, to the best of your knowledge and belief, complete and accurate.
3.5 Occasionally an observer, either from an accreditation authority that we subscribe to or another ECAAS representative may be present to observe the Services being provided.
3.6 Where we have been engaged by you to conduct an independent assessment of another party, you will ensure that all parties co-operate with us fully, such that we can provide the Services.
3.7 Services may be provided remotely through the use of technology in accordance with the requirements of the International Accreditation Forum (IAF MD 4 ICT) for the use of information and communication technology for auditing/assessment purposes.
3.8 Where remote services are provided, both parties agree that they shall at a minimum be in accordance with the ECAAS approved methodology, information security, data protection measures and applicable regulations.
3.9 Where the client ICT and/or Cyber Security requirements exceed those defined by ECAAS, they will be adopted by ECAAS for delivery of remote services to that client.
4.1 You must pay our fees for the Services we provided as set out in this clause.
4.2 Unless otherwise agreed in writing the fees payable by you will be as set out in our quote
4.3 We may change our fees at any time without notice to you.
4.4 We may require you to pay our fees in advance.
4.5 We will invoice you for our fees from time to time and you must pay such amounts in the currency specified within 14 days of the date of our invoice. You must pay all invoiced amounts in full and must not seek to deduct or offset any amounts from the same.
4.6 Where discounts are offered, these only apply if the applicable conditions for getting these discounts are met. The applicable conditions will be provided or referred to when the discount is being offered.
4.7 If you do not pay an invoice by the due date, a 10% late fee will be applied.
4.8 If you pay us by credit card you must also pay us a credit card surcharge of 1.5%.
4.9 Payment of invoices is required in full prior to issuance of any certificates.
4.10 In case payment is not received by the invoice due date, we will send you a courtesy reminder. If payment is not received from you within 2 weeks of the due date, we have the right to review and suspend or terminate your certification. If payment is not received from you, we may engage an external debt collection agency of our choice to recover the fees. Any charges incurred by ECAAS for the provision of their services can and will be on-charged to you.
4.11 If we agree to provide Services and you have provided us with incomplete or misleading information, then on our request you must pay us an additional amount for any extra work we perform as a result.
5.1.1 Neither Provision of Services nor a Contract warrants the granting of Certification.
Certification can only be granted after assessment of your management system, processes, activities, products and/or services in accordance with the applicable Certification Procedures and if sufficient evidence of compliance with the requirements of the nominated Standard has been provided and if there are no known reasons that would obstruct the granting of Certification.
5.1.2 Additional requirements for Certification include that:
(a) you are not in breach of any of these terms; and
(b) you have no overdue account with us;
5.1.3 If all requirements are met and there are no known obstructions for Certification, we will:
(a) grant Certification;
(b) issue you a Certificate; and
(c) where applicable grant you a licence to use an applicable Authorised Mark.
5.1.4 If we are not satisfied that Certification is appropriate you will be notified, explaining the reasons for our decision.
5.2 Duration of Certification
5.2.1 Subject to your continued compliance with all applicable requirements, whether specified in the Contract or in the applicable Standard, Certification continues until any expiry date specified in the Certificate is reached.
5.3 Maintenance of Certification
5.3.1 You must at all times maintain the management system and/or processes Certified and comply with all reasonable requirements including the payment of fees that we consider necessary to ensure that Certification continues to be appropriate, including any requirements listed or referred to in the Certificate and the additional mandatory system requirements listed below:
(a) maintain registers of complaints and incidents, which will be periodically reviewed by ECAAS;
(b) investigate each complaint received/incident and take action as appropriate, including;
(i) notification of authorities;
(ii) evaluation, mitigation and reduction of any adverse impacts;
(iii) timely restoration of conformity;
(iv) implementation of measures and/or improvements aimed at preventing recurrence; and
(v) verification of effectiveness of those measures and/or improvements.
(c) at least once annually conduct a Management Review, in accordance with the requirements specified in the applicable Standard; and
(d) plan and conduct Internal Audits of the entire system at least once annually in accordance with the requirements specified in the applicable Standard; and
(e) ensure that a senior member of management is present at the Opening and Closing Meetings of the Certification and Re-Certification Audits.
5.3.2 You will be subjected to regular, planned surveillance and re-certification audits during which continued compliance with relevant requirements is assessed.
5.3.3 In addition to regular and planned surveillance and re-certification audits, you may be subjected to short-notice audits to investigate complaints, significant changes that may affect the continued suitability and/or compliance of the Certified Management System or to verify the implementation of corrective actions taken to address suspension conditions or major non-compliances.
5.4.1 You must promptly inform us of any change in relation to the nominated management system where that change is likely to affect the compliance of the system with nominated requirements. This includes but is not limited to: change of address of any site that is part of the Scope of Certification; changes in ownership and significant personnel; or equipment changes.
5.5 Use of Certificate and/or Authorised Marks
5.5.1 Use of ECAAS Certificates and Authorised Marks, as well as making any reference to the status of Certification of your management system is governed by the Mark Licence Terms and the requirements for use of the ECAAS Marks. All requirements and conditions for use specified therein must be adhered to.
5.6 Suspension, Cancellation or Expiry of Certification
5.6.1 We may suspend your Certification with immediate effect if there are legitimate reasons to do so.
5.6.2 Legitimate reasons can be breaches of the Contract, serious non-conformities found within your certified Management System or parts thereof or the failure to sufficiently address those non-conformities within a reasonable timeframe.
5.6.3 If your Certification is suspended:
(a) we will notify you of the reason for suspension, the actions to be taken by you, your right to appeal and the relevant timeframes;
(b) we may provide information regarding your suspension to the accreditation authority we subscribe to;
(c) you must notify us within 2 weeks of the actions planned to address the issues that have led to the suspension. This must include a due date for completion which, as a maximum, shall be 6 months after the date of suspension;
(d) you must take all actions reasonably required by us to prevent the public being misled or otherwise harmed; and
(e) you are required to continue paying the applicable fees.
5.6.4 If your actions have sufficiently addressed the issue that led to your suspension and sufficient evidence thereof has been obtained by us, we will reinstate Certification.
5.7 Termination of Contract and Cancellation
5.7.1 You may terminate a Contract at any time by giving us 30 days’ prior notice.
5.7.2 We may terminate a Contract with immediate effect by giving you notice if:
(a) you fail to take sufficient action to meet the conditions outlined in your suspension notification within a period of six months;
(b) you breach any of these terms (other than in a manner we determine allows a suspension under clause 5.6); or
(c) you breach a material provision of these terms where that breach is not capable of remedy.
5.7.3 Either party may terminate a Contract by giving notice if an event specified in clause 17 continues for more than 60 days.
5.7.4 Notice can only be in writing and be given to a party either:
(a) by registered post to the addressee’s last known principal place of business (notice by post is deemed to be received at the time at which the letter would be delivered in the ordinary course of post);
(b) by email to the addressee’s last known email address (notice by email is deemed to be received if the sender does not receive an error delivery message within 24 hours of sending the email); or
(c) as permitted by the Corporations Act (2001).
5.7.5 If your Certification is cancelled or the Contract is otherwise terminated, you must immediately:
(a) pay the final invoice that we will send to you;
(b) cease using any Authorised Mark, Certificate or reference to Certification of your system under the applicable program by ECAAS, as specified in the Mark Licence Terms;
5.8.1 You have the right to appeal any Certification Decision made by us wherever you feel that:
(a) the Certification decision is incorrect;
(b) the Certification decision is not based on all available evidence (at the time of the assessment);
(c) the correct procedure for evidence gathering has not been followed; or
(d) there are special circumstances that should have been taken into consideration during assessment or decision making.
5.8.2 This includes decisions on granting or expanding certification, upgrading certification to the requirements of a new or upgraded Standard, renewing certification, suspension of certification, cancellation of certification or re-instatement of certification.
6.1 Subject to this clause 6, a party must keep confidential all information provided by one party to the other party (in any form) in connection with the Contract and provision of Services. This includes intellectual property, technical, commercial, financial and personal information about a party and its processes, products, contractors and staff members.
6.2 Excluded from confidentiality under clause 6.1 is information which:
(a) is or becomes a matter of public record; or
(b) a party certifies in writing as not being Confidential Information;
6.3 A party must not disclose Confidential Information to third parties unless:
(a) the disclosure is necessary to perform parts of a Contract (for example where an assignment is made as per clause 13)
(b) the disclosure is specifically authorised by the other party;
(c) the third party is a related body corporate of a party within the meaning of section 9 of the Corporations Act (2001) and provided the disclosure is on a need to know basis;
(d) the disclosure is made on a confidential basis and the other party consents in writing to the fact and contents of the disclosure; or
(e) the disclosure is required by applicable law or by any government or government agency having jurisdiction over the party concerned or by an accreditation authority we subscribe to.
6.4 This clause does not prevent us from disclosing Confidential Information to any government or regulatory body where we reasonably believe the health or safety of any person may be compromised if such disclosure is not made.
6.5 We have the right to disclose your company name, relevant Standard, Scope of Certification and Geographical location and the status, issue date and expiry date of your Certification to any member of the public, either on request or in a publicly available directory.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 You acknowledge that:
(a) we are the owner or licensee of all copyright, know-how and other intellectual property rights in the Certification Procedures and any associated documentation; and
(b) no right, title or interest in the Certification Procedures or any related documentation is transferred to you under the Contract.
7.2 Client’s Material
(a) All your materials, documents and information owned by you prior to and during this Agreement remain your property.
(b) We must keep safe and secure all materials and documentation provided by you to us and must ensure that its personnel keep safe and secure all materials and documentation provided by you to us.
8. LIMITATION OF LIABILITY
8.1 Except as required by the mandatory operation of law we exclude from each Contract all implied warranties, terms and conditions.
8.2 Our liability for a breach of a Contract or any warranty, term or condition imposed by and not excludable under the mandatory operation of law is limited at our option, to:
(a) providing the Services again; or
(b) repayment of the Costs of our Services provided, excluding expenses incurred by us in the provision of those Services.
8.3 Except as required by the mandatory operation of law we will not be liable to you for any amount for consequential, special or indirect damages resulting from the loss of business, revenue or profit in respect to claims arising in connection to a Contract including any act or omission by us in performing a Contract or for a breach of a Contract or for negligence.
9.1 You must take out and maintain valid and enforceable public liability insurance to cover your potential liability to us under all Contracts.
10. NON-SOLICITATION OF PERSONNEL
10.1 You must not offer any employment to or otherwise engage any of our officers, employees, agents or contractors during or for a period of 24 months after the termination of a Contract.
11. AFTER TERMINATION
11.1 On termination of a Contract you must immediately comply with all your obligations under clause 5.7
11.2 Clause 6, 7, 8, 10, 11 and 12 continue after termination of a Contract.
11.3 Termination of a Contract under clause 5.7 or clause 17 does not affect any accrued rights or remedies of either party.
12.1 We may assign any of our benefits or obligations under a Contract.
12.2 We may appoint an agent or contractor to provide the Services, including carrying out all or part of the Certification Procedures, with exception of any Certification Decision or Appeal Decision.
12.3 When we assign an auditor or audit team to your organisation, you will be notified of the person(s) assigned.
12.4 You have the right, where you can provide a reasonable justification to do so, to reject the appointment of a specific person or organisation assigned to conduct the audit of your management system. If you wish to do so, you must notify us in writing within 1 week of being informed of the appointment of the auditor.
12.5 You must not assign any of your benefits or obligations under a Contract without our prior written consent.
13.1 If a provision of a Contract would, but for this clause, be unenforceable, the provision must be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of the Contract.
14.1 We only waive a right under a Contract by notice signed by an Authorised representative of ECAAS that we waive that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
15.1 A Contract does not create any fiduciary, employment, agency, joint venture or partnership between us and you.
16.1 You must notify us immediately if:
(a) you are subject to any change in direct or indirect beneficial ownership or control;
(b) you are subject to changes in legal, commercial or organisational status;
(c) significant changes in key managerial areas occur;
(d) you change address and/or sites;
(e) you intend to change the scope of operations under the certified management system;
(f) you intend to make major changes to the management system and/or processes;
(g) any significant OHS-related incidents occur in your organisation, including but not limited to: fatal incidents, serious injuries or occupational disease (OHS clients only);
(h) there is a breach of regulations;
(i) a regulatory authority takes legal action against you (relevant to the scope of your Environmental and/or OHS management system);
(j) any OHS-related findings are made by third parties;
(k) you cease or intend to cease to carry on business;
(l) you cease to be able to pay your debts as they become due;
(m) any step is taken by a mortgagee to take possession or dispose of the whole or any part of your assets, operation or business;
(n) any step is taken to enter into any arrangement between you and your creditors;
(o) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other person of the whole or any part of your assets or business; or
(p) where you are a partnership, any step is taken to dissolve that partnership or a partner dies.
17. FORCE MAJEURE
17.1 We are not liable for failure to perform a Contract to the extent and for so long as its performance is prevented or delayed because of circumstances outside our control and without fault or negligence by us. We will immediately notify you and do everything reasonable to remedy the situation without delay.
18.1 You must pay all costs and expenses in performing any of your obligations under this agreement including any obligation resulting from a request by us.
19. GOVERNING LAW
19.1 The laws in South Australia govern each Contract. The courts of South Australia or the Federal Court of Australia (Adelaide Registry) have exclusive jurisdiction in connection with each Contract.
The parties submit to the jurisdiction of those courts and any courts that have jurisdiction to hear appeals from those courts.