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General Terms and Conditions of Business of iCertifi

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1. Scope

  1. These General Terms and Conditions of Business of ICertifi is made between the client Americas Compliance Consulting LLC dba iCertifi.
  2. The following terms and conditions apply to agreed services including consultancy services, information, deliveries and similar services as well as ancillary services and other secondary obligations provided within the scope of contract performance.
  3. Any standard terms and conditions of the client of any nature shall not apply and shall hereby be expressly excluded. No standard contractual terms and conditions of the client shall form part of the contract even if iCertifi does not explicitly object to them.


2. Quotations

  1. Unless otherwise agreed, all quotations submitted by iCertifi can be changed by iCertifi without notice prior to its acceptance and confirmation by the other party.


3. Coming into effect and duration of contracts

  1. The contract shall come into effect for the agreed terms upon the quotation letter of iCertifi or a separate contractual document being signed by both contracting parties, or upon the works requested by the client being carried out by iCertifi. If the client instructs iCertifi without receiving a quotation from  iCertifi (quotation), iCertifi is, in its sole discretion, entitled to accept the order by giving written notice of such acceptance (including notice sent via electronic means) or by performing the requested services.
  2. The contract term starts upon the coming into effect of the contract in accordance with article 3.1 and shall continue for the term agreed in the contract.
  3. If the contract provides for an extension of the  contract term,  the contract term will be extended by the term provided for in the contract unless terminated in writing by either party with a six-week notice prior to the end of the contractual term.


4. Scope of services

  1. The scope of the services shall be decided solely by a  unanimous  declaration issued by both parties. If no such declaration exists, then the written confirmation of order by iCertifi shall be decisive.
  2. The agreed services shall be performed in compliance with the regulations in force at the time the contract is entered into.
  3. iCertifi is entitled to determine, in its sole discretion, the method and nature of the assessment unless otherwise agreed in writing or if mandatory provisions require a specific procedure to be followed.
  4. On execution of the work there shall be no simultaneous assumption of any guarantee of the correctness (proper quality) and working order of either tested or examined parts nor of the installation as a whole and its upstream and/or downstream processes, organizations, use and application in accordance with regulations, nor of the systems on which the installation is based. In particular, iCertifi shall assume no responsibility for the construction, selection of materials and assembly of installations examined, nor for their use and application in accordance with regulations unless these questions are expressly covered by the contract.


5. Performance periods/dates

  1. The contractually agreed periods/dates of performance are based on estimates of the work involved which are prepared in line with the details provided by the client. They shall only be binding if being  confirmed  as binding by iCertifi in writing.
  2. If binding periods of performance have been agreed, these periods shall not commence until the client has submitted all required documents to iCertifi.
  3. Articles 5.1  and 5.2 also apply, even  without express approval by the client, to all extensions of agreed periods/dates of performance not caused by iCertifi.


6. The client’s obligation to cooperate

  1. The client shall guarantee that all cooperation required on its part, its agents or third parties will be provided in good time and at no cost to  iCertifi.
  2. Design documents, supplies, auxiliary  staff, etc. necessary for performance  of the services shall be made available free of charge by  the  client. Moreover, collaborative action of the client must be undertaken  in  accordance with legal provisions, standards, safety regulations and accident prevention instructions.
  3. The client shall bear any additional cost  incurred on account of  work having to be redone or being delayed as a result of late, incorrect or incomplete information provided by or lack of proper cooperation from the client. Even where a fixed or maximum price is agreed, iCertifi shall be entitled   to charge extra fees for such additional expense.

7. Invoicing of work

  1. If the scope of performance is not laid down in writing when the order is placed, invoicing shall be based on costs actually incurred. If no price is agreed in writing, invoicing shall be made in accordance with the price list of iCertifi valid at the time of performance.
  2. Unless otherwise agreed, work shall be invoiced according to the progress of the work.
  3. If the execution of an order extends over more than one month and the value of the contract or the agreed fixed price exceeds USD$2500  or equivalent value in local currency, iCertifi may demand payments  on  account or in instalments.


8. Payment terms

  1. All invoice amounts shall be due for payment without deduction on receipt of the invoice. No discounts shall be granted.
  2. Payments shall be made to the bank account of Americas Compliance Consulting dba iCertifi as indicated on the invoice, stating the invoice and customer numbers.
  3. In cases of default of payment, iCertifi shall be entitled to claim default interest at the applicable short term loan interest rate publicly announced by a reputable commercial bank in the country where iCertifi is located. At the same time, iCertifi reserves the right to claim further damages.
  4. Should the client default in payment of the invoice despite being granted a reasonable grace period, iCertifi shall be entitled to cancel the contract, withdraw the certificate, claim damages for non-performance and refuse to continue performance of the contract.
  5. The provisions set forth in article 8.4 shall also apply in cases involving returned cheques, cessation of payment, commencement of insolvency proceedings against the client’s assets or cases  in  which  the commencement of insolvency proceedings has been dismissed due to lack    of assets.
  6. Objections to the invoices of iCertifi shall be submitted in writing within two weeks of receipt of the invoice.
  7. iCertifi shall be entitled to demand appropriate advance payments.
  8. iCertifi shall be entitled to raise its fees at the beginning of a month   if overheads and/or purchase costs have increased. In this case, iCertifi  shall notify the client in writing of the rise in fees. This notification shall be issued one month prior to the date on which the rise in fees shall come into effect (period of notice of changes in fees). If the rise in fees remains under 5% per contractual year, the client shall not have the right to terminate the contract. If the rise in  fees exceeds 5% per contractual year,  the client shall be  entitled  to  terminate the  contract by the end of the period of notice of changes in fees. If the contract is not terminated, the changed  fees shall be deemed to have been agreed upon by the time of the expiry of the notice period.
  9. Only legally established and undisputed claims may be offset against claims by iCertifi.


9. Acceptance

  1. Any part of the work ordered which is complete in itself may be presented by iCertifi for acceptance as an instalment. The client shall be obliged  to accept it immediately.
  2. If the client fails to fulfil its acceptance obligation immediately, acceptance shall be deemed to have taken place 4  calendar weeks after completion of the work provided that iCertifi has specifically made the client aware of the aforementioned deadline upon completion of the work.


10. Confidentiality

  1. For the purpose of these terms and conditions, “confidential information” means all information, documents, images, drawings, know-how, data, samples and project documentation which one  party  (the  “disclosing party”) hands over, transfers or otherwise discloses to the other party (the “receiving party”). Confidential information also includes paper copies and electronic copies of such information.
  2. The disclosing party shall mark all confidential information disclosed in written form  as confidential before passing  it onto the receiving party. The same applies to confidential information transmitted by e-mail. If confidential information is disclosed orally, the receiving party shall be appropriately informed  in  advance and the  disclosing party shall confirm in writing the confidentiality nature of the information within five working days of oral disclosure. Where the disclosing party fails to do so within the stipulated period, the receiving party shall not take any confidentiality obligations hereunder towards such information.
  3. All confidential information which the disclosing party  transmits  or otherwise discloses to the receiving party during performance of work by iCertifi:
  4. may only be used by the receiving party for the purposes  of  performing the contract, unless expressly otherwise agreed in  writing by  the disclosing party;
  5. may not be copied, distributed, published  or otherwise  disclosed by the receiving party, unless this is necessary for fulfilling the purpose of the contract or iCertifi is required to pass on confidential information, inspection reports or documentation to the government authorities, judicial court, accreditation bodies or third parties that are involved in the performance of the contract;
  6. must be treated by the receiving party with the same level of confidentiality as the receiving party uses to protect its own confidential information, but never with a lesser level of confidentiality than  that which  is reasonably required.
  7. The receiving party may disclose any confidential  information  received from the disclosing party only to those of its employees who need this information to perform the services required for the contract. The receiving party undertakes to oblige these employees to observe the same level of secrecy as set forth in this confidentiality clause.
  8. Information for which the receiving party can furnish proof that:
  9. it was generally known at the time of disclosure or has become  general knowledge without violation of this confidentiality clause by the receiving party; or
  10. it was disclosed to the receiving party by a third party entitled to disclose this information; or
  11. the receiving party already possessed this information prior to disclosure by the disclosing party; or
  12. the receiving party developed it itself, irrespective of disclosure by the disclosing party, shall not be deemed to constitute  “confidential  information” as defined in this confidentiality clause.
  13. All confidential information shall remain the property of  the  disclosing party. The receiving party hereby agrees to immediately (i) return all confidential information, including all copies, to the disclosing party,  and/or (ii) on request by the disclosing party, to  destroy  all  confidential information, including all copies, and confirm the destruction of this confidential information to the disclosing party in writing, at any time if so requested by the disclosing party but at the latest and without special request after termination or expiry of the contract. This does not extend to include reports and certificates prepared for the client solely for  the  purpose of fulfilling the obligations under the contract, which shall remain with the client. However, iCertifi is entitled to make file copies of such reports, certificates and confidential information that forms the basis for preparing these reports and certificates in order to evidence the correctness of its results and for general documentation purposes required by laws, regulations and the requirements of working procedures of iCertifi.
  14. From the start of the contract and for a period of three years after termination or expiry of the contract, the receiving  party  shall  maintain strict secrecy of all confidential information and shall not disclose this information to any third parties or use it for itself.


11. Liability of iCertifi

  1. Irrespective of the legal basis, in the event of a breach of contractual obligations or tort, the liability of iCertifi for all damages, losses  and reimbursement of expenses caused by iCertifi, its legal representatives and/or employees shall be limited to: (i) in the case of a contract with a fixed overall fee, three times the overall fee for the entire contract; (ii) in the case of a contract for annually recurring services, the agreed annual fee; (iii) in the case of a contract expressly charged on a  time and material basis, a maximum of 20,000 USD or equivalent amount  in local currency; and (iv) in the case of a framework agreement that provides for the possibility of placing  individual orders, three times  of the fee  for  the  individual  order  under  which  the  damages  or  losses have occurred. Notwithstanding the above, in the event that the total and accumulated liability calculated according to the foregoing provisions exceeds one Million USD or equivalent amount in local currency, the total and accumulated liability of iCertifi shall be only limited  to  and shall not exceed the said one Million USD or equivalent amount in local currency.
  2. The limitation of liability according to article 12.1 above shall not apply to  damages and/or losses caused  by malice, intent  or gross  negligence on the part of iCertifi or its vicarious agents. Such limitation shall not apply to damages for a person’s death, physical injury orillness.
  3. In cases involving  a  fundamental breach  of contract,  iCertifi will be liable even where minor negligence is involved. For this purpose, a “fundamental breach” is breach of a material contractual obligation, the performance of which permits the due performance of the contract. Any claim for damages for a fundamental breach of contract shall be limited to the amount of damages reasonably foreseen  as a possible consequence  of such breach of contract at the time of the breach (reasonably  foreseeable damages), unless any of the circumstances described  in  article 12.2applies.
  4. iCertifi shall not be liable for the acts of the personnel made available by the client to support iCertifi in the performance of its services under the contract, unless such personnel made available is regarded as vicarious agent of iCertifi. If iCertifi is not liable for the acts of the personnel made available by the client under the foregoing provision, the client shall indemnify iCertifi against any claims made by third parties arising from or in connection with such personnel’sacts.
  5. The limitation periods for claims for damages shall be based on statutory provisions.
  6. None of the provisions of this article 12 changes the burden of proof to the disadvantage of the client.


12. Partial invalidity, written form, place of jurisdiction and dispute resolution

  1. All amendments and supplements must be in writing in order to be  effective. This also applies to amendments and supplements to this clause 13.1.
  2. Should one or several of the provisions under the contract and/or these terms and conditions be or become ineffective,  the  contracting  parties shall replace the invalid provision with a legally valid provision that comes closest to the content of the invalid provision in  legal  and  commercial terms.
  3. Any dispute in connection with the contract and these terms  and  conditions or the execution thereof shall be settled friendly through negotiations.
  4. Unless otherwise stipulated in the contract, if no settlement or no agreement in respect of the extension of the negotiation period can be reached within two  months  of the arising of the dispute, the dispute shall be submitted.

Last updated October 2017

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