1. Scope and Definitions
1.1. Unless otherwise specifically agreed in writing, Schutter Argentina S.A. (hereinafter referred to as the “Company”) undertakes to provide services in accordance with these general conditions (hereinafter referred to as “General Conditions”), and accordingly all offers or tenders of service are made subject to the same.
1.2. All resulting contracts, agreements or other arrangements shall in all respects be governed by these conditions.
1.3. The Company is a legally constituted business engaged in the trade of inspection, sampling, analysis, testing and monitoring. As such it:
- 1.3.1. Carries out inspection, verifications, examinations, tests, samplings, measurements and similar operations;
- 1.3.2. Render services as referred to in item 2.2. of these General Conditions;
- 1.3.3. Issues reports and certificates related to the aforementioned operations as referred to in item 3 of these General Conditions;
1.4. The Company acts for the persons or bodies from whom the instructions to act have originated (hereinafter referred to as the “Principal”). No other party may normally give instructions regarding the services ordered unless so authorized by the Principal.
2. Rendering of services
2.1. The Company shall perform its work with due care and skill and shall apply appropriate technical and professional standards to all aspects of its work. No other or further warranties, express or implied shall be made and the Company’s exposure to damages may be limited by reasonable express conditions.
2.2. The standard services that the Company shall provide are illustratively not exhaustively:
- 2.2.1. Quantity and/or quality inspection;
- 2.2.2. Inspection of condition of goods, packing, equipment, tanks, containers, carriers and means of transport;
- 2.2.3. Supervision of loading or discharging of goods;
- 2.2.4. Sampling and sample preparation;
- 2.2.5. Survey and audits;
- 2.2.6. Laboratory analysis or other testing services;
- 2.2.7. Weight verification or certification;
- 2.2.8. Supervision and monitoring of goods.
2.3. The Company shall only provide special services other than the standard services mentioned in item 2.2. of these General Conditions through a written agreement with the Principal.
2.4. The Company shall provide services in accordance with the Principal's specific instructions that shall be confirmed by the Company or, if not specified by the Principal, according to any relevant trade, custom, usage or practice such methods as the Company shall consider suitable on technical and/or financial ground.
2.5. The Company shall be entitled at its discretion to delegate the performance of the whole or any part of the services contracted for with the Principal to any agent or subcontractor.
3. Issuance of certificates
3.1. Unless otherwise specified, certificates and reports shall be issued to the order of the Principal and pursuant to its instructions. Certificates and reports shall only record facts ascertained by the Company. Any data or material obtained from third parties shall be so indicated and shall be reproduced for information purposes only.
3.2. The findings and observations of the Company shall be valid for time and place of inspection only.
3.3. All results and data contained in e-mail or fax shall be valid only when supported by the original document on the Company's file.
3.4. The Company shall under no obligation refer to or report upon any facts or circumstances which are outside the specific instructions received.
3.5. The Company shall however be deemed irrevocably authorised to deliver at its discretion the report or the certificate to a third party if following instructions by the Principal; or when implicitly following customary previous circumstances, trade custom, usage or practice.
3.6. Reports or certificates issued following testing or analysis of samples contain the Company's specific opinion on those samples only but do not express any opinion upon the bulk from which the samples were drawn. If an opinion on the bulk is requested special arrangements must be made in advance with the Company for the inspection and sampling of the bulk.
3.7. Once the Company has issued analysis results, if any doubts arise regarding the accuracy of the results either on the part of the Company or the Principal, the Company reserves the right to re-check and amend as they see fit.
4. The Company’s Obligations
4.1. The methods, procedures, and standards to be applied by the Company while rendering services shall be those agreed upon between the Principal and the Company, provided such instructions are considered appropriate on technical and financial grounds by the Company at the time and place of performance.
- 4.1.1. In the event that no method, procedure or standard is specified, the Company shall be free to perform the inspection according to relevant international or trade standards, if any, otherwise inspection shall be performed according to such customs, usages or practices of the trade as the Company deems relevant at the time and the place of inspection.
4.2. The Company shall perform the services agreed upon with its Principal in an independent and impartial manner.
4.3. The Company shall keep records of the inspection, samples or portions of samples on behalf of Principal for a period of three months from receipt of samples unless principal instructs the Company in writing to retain them for a longer period of time. If the Principal requests that reserve samples be forwarded by the Company the cost of forwarding will be for Principal's account.
4.4. The Company will not be responsible for samples lost in transit by courier services, Postal Services and the like whether going to or from the Company's offices.
4.5. Where the Company is called upon to seal tanks, containers, storage areas etc., such sealing shall be considered as proof of the Company's attendance, but shall not be considered as proof of inviolability.
4.6. The Company shall not render services upon functions normally belonging to or provided by national or governmental authorities. The Company may be requested to provide samples so as to permit performance of tests or analyses by national or governmental authorities. If called upon to reproduce findings of the national or governmental authorities, such reproduction shall be for information purposes only and without responsibility of the Company.
4.7. Services requested by the Principal by fax or e-mail shall be confirmed by the Company.
5. Principal’s Obligations
5.1. The Principal agrees that he shall:
- 5.1.1 Ensure that written instructions to the Company are given in due time to enable the required services to be performed effectively, as to the type of service to be performed, relevant details of the particular assignment and the procedure, methods or standards the Principal wishes to see applied to the inspection;
- 5.1.2 The instructions for each inspection assignment should include sufficient details to enable the Company to perform the inspections including, but not limited to commodity or product descriptions, quantity, quality specifications, time and place of inspections, vessel or other means of transportation, packing, stowage, contract partners, documentary details, contact persons.
- 5.1.3 It is also recommended that the Principal inform the Company as to whether he is buyer, seller, receiver, shipper, supplier, etc and also to whom copies of reports should be distributed in addition to the Principal.
- 5.1.4 Procure all necessary access for the Company's Representatives to goods, premises, installations and transport;
- 5.1.5 Supply, if required, any special instrument necessary for the performance of the required services;
- 5.1.6 Inform the Company in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing and ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services regardless in this respect, on the Company's advise whether required or not;
- 5.1.7 Take all necessary steps to eliminate or remedy any obstruction to or interruptions in the performance of the required services;
- 5.1.8 Fully exercise all his rights and discharge all his liabilities under the contract of sale whether or not a report or certificate has been issued by the Company failing which the Company shall be under no obligation to the Principal.
6.1. The Company shall inform the fees of the service that shall be rendered. If the service does not contain a fixed price it shall be deemed to have been agreed between the Principal and the Company that the amount to be paid shall be calculated after completion of the work on the basis of the rates and methods normally adopted by the Company or the rates and methods agreed with the Principal.
7.1. The principal shall punctually pay net cash on presentation of invoice or in such other manner as may have been agreed in writing, all proper charges rendered by the Company failing which interest shall become due, at a rate of 2% per month or part of a month. The payment shall be paid not later than 05 days after the presentation of the Commercial Invoice related to the services provided in the former month or within such other period as may have been agreed in writing by the Company.
7.2. All costs shall be paid in Reais (R$). Prices specified in USD shall be converted by the ‘Ptax’ rate informed by the Brazilian Central Bank the day before the effective payment. If there is any difference between the monies verified and the amount paid by the Principal, the Company shall notify the Principal to pay the difference.
7.3. The Principal shall not be entitled to retain or defer payment of any sums, due to the Company on account of any dispute, cross claim or set off which it may allege against the Company.
7.4. If there is any delay in the payment of the services rendered, the debt is forthwith considered due and payable and the Company may use the appropriate judicial matters to receive it.
8.1. The Company undertakes to exercise due care and skill in the performance of its services and to apply appropriate technical and professional standards to all aspects of its work. The Company accepts responsibility only in cases of proven negligence.
8.2. The liability of the Company in respect of any claims for loss, damage or expense of whatsoever nature and howsoever arising shall in no circumstances exceed a total aggregate sum equal to ten times the amount of the fee or commission payable in respect of the specific services required under the particular contract with the Company which gives rise to such claims. Where the fee or commission payable relates to a number of services and claim arises in respect of one of those services the fee or commission shall be apportioned for the purposes of this paragraph by reference to the estimated time involved in the performance of each service, unless when previously agreed between the Company and Principal.
8.3. The Principal shall guarantee, hold harmless and indemnify the Company and its servants, agents or subcontractors against all claims made by any third party for loss, damage or expense of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance, of any services to the extent that the aggregate of any such claims relating to any one service exceed the limit mentioned in the aforementioned item 8.2..
8.4. Every officer, employee, agent or subcontractor of the Company shall have the benefit of the limitation of liability and indemnity contained in these General Conditions and so far as related to such limitations any contract entered into by the Company is entered into not only on its own behalf but also as agent and trustee for every such person as aforesaid.
8.5. In the event that any unforeseen problems or expenditure arise in the course of carrying out any of the contracted services the Company shall be entitled to make additional charges to cover additional time and cost necessarily incurred to complete the service.
8.6. The Company shall be discharged from all liability to the Principal for all claims for loss, damage or expense unless suit is brought within one year after the date of the performance by the Company of the service which gives rise to the claim or in the event of any alleged non-performance within three months of the date when such services should have been completed.
8.7. In the event that the Principal fails to meet any obligation towards the Company, including failure to pay in time, the liability of the Company shall lapse.
9.1. If the Principal fails to fulfill any of his obligations towards the Company in full or in time or in the event of his being declared bankrupt, applying for suspension of payments, liquidation, being placed in the hands of an administrator or similar, he shall be deemed to be in default without any further notice of default being required and the Company shall be entitled to payment of interest, costs and full damages, or at its discretion, to dissolve the agreement in whole or in part or to suspend its performance without any liability and recourse to judicial review.
10. Force Majeure
10.1. The Company may, pursuant to its sole discretion, suspend the performance of the services in the event of force majeure until the exceptional situation ceases
10.2. The conditions under which the Company may claim force majeure includes, but are not limited to: failure of third parties to supply for whatever reason, strikes, lock-outs, political or economic boycotts, staff illness, fire, business interruption, riots, measures resulting from other government measures, interrupted energy supply and any other event of any nature beyond the control of the Company which may prevent or delay performance of the services ordered or agreement made.
10.3. However, in the event of the Company being prevented by reason of any cause whatsoever outside its control from performing or completing any service for which an order had been given or an agreement made, the Principal shall pay to the Company:
- 10.3.1. The amount or all abortive expenditure actually made or incurred;
- 10.3.2. A proportion of the agreed fee or commission equal to the proportion (if any) of the service actually carried out; and the Company shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required service.
11.1. No alteration, amendment or waiver of any of these General Terms and Conditions shall have any effect unless made in writing and signed by a representative of the Company and Principal.
12. Applicable Law and Jurisdiction
12.1. These General Conditions are governed by the laws of Brazil and any disputes which may arise out of or in connection with the services rendered according to these General Conditions, shall be submitted for judgment to the ordinary courts of São Paulo. The Company, however, has the right to take legal action against the Principal before any other competent judicial court or arbitral tribunal.