1 Use of Marks
On you being successfully issued with a Certificate by BSI, BSI licenses you to use the BSI Logos on a non-exclusive, royalty-free basis. The licence is personal to you. You may not sub-licence the use of the BSI Logos to any third party. You may not tamper with or change the appearance of the BSI Logos. You may only display the BSI Logos in accordance with the instructions of BSI.
If the Contract is terminated, a Certificate expires or is withdrawn or cancelled by BSI, your licence to use the BSI Logos shall immediately terminate. Further, BSI may cancel a licence granted to you to use the BSI Logos at any time for any or no reason with immediate effect. Upon cancellation of the licence you will immediately cease to use the BSI Logos and discontinue any reference to the BSI Logos in any materials.
2 Fees and Payment
(Payment terms) You will pay every invoice submitted to you by BSI within the number of days stated on the Proposal (or, in the case of training services, at least 10 working days before the start of the relevant training course) in full and in cleared funds to a bank account nominated by BSI.
(Fees and Expenses) The fees for the Services will be set out in the Proposal. In addition, BSI will be entitled to charge you for any out-of-pocket expenses reasonably incurred in providing the Services (such as travel, accommodation, subsistence and other costs and other expenses).
(Increase in fees) BSI may increase its fees at any time by giving you notice. If we increase our fees and you do not accept the increase, you may terminate the Contract by notifying BSI in writing not more than 45 days following the date of BSI’s notice to you regarding the fee increase. If you terminate, you will be liable for all fees and expenses up to the effective date of termination which shall be the date on which BSI receives your notice to terminate. If you do not notify BSI of your intention to terminate the Contract within 45 days following the date of BSI’s notice to you regarding the fee increase, then you will be deemed to have accepted the fee increase, which shall take effect 45 days from the date of BSI’s notice to you.
(VAT or general sales tax) All amounts set out in the Proposal or payable by you under the Contract are exclusive of sales or value added tax or other tax that may be applicable at the time of invoice. If applicable, you will, on receipt of a valid tax invoice from BSI, pay to BSI such additional amounts in respect of tax as may be chargeable at the same time as payment is due for the supply of the Services.
(Interest on overdue amounts) If you fail to make a payment due to BSI under the Contract by its due date as set out in the Proposal, BSI may charge interest on the overdue amount at the rate of 2.5 per cent a year above the then current base rate of BSI’s bankers, accruing on a daily basis from the due date until the date of actual payment, which will be compounded quarterly.
(If a third party is to pay) If you arrange for a third party to pay any of BSI’s fees or charges, you remain liable to the extent that the third party does not pay in full by the due date.
3 Remedies, Waiver and Rights of Third Parties
A waiver of any right or remedy under this Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.No single or partial exercise of any right or remedy provided under this Contract or by law shall preclude or restrict the further exercise of any such right or remedy.
The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law governing the Contract.
A person who is not a party to this agreement shall not have any rights under or in connection with it.
If you wish to appeal a decision made by BSI, you must serve written notice of your intention to appeal within 21 days of receipt of the BSI decision. Your notice must be addressed to the Compliance and Risk Director at BSI.
Once your notice of appeal has been received, the Compliance and Risk Director at BSI will notify you of the procedure under which your appeal will be heard. All appeals are heard by an independent appeals panel, established under the accreditation rules governing BSI. The decision of BSI will remain in force pending the decision of the appeals panel. A decision made pursuant to the appeals procedure shall be final and you and BSI each agree to adhere to that decision.
5 Limitation of BSI’s Liability
Notwithstanding any other provision of this Contract, neither party’s liability under or in connection with this Contract shall be excluded or limited to the extent that such exclusion or limitation is not otherwise permitted by law.
Subject to this, BSI will not be liable to you for any loss of profit or any indirect or consequential loss arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise; and the total liability of BSI to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not exceed an amount equal to the annual fees payable by you under the Contract in relation to the Services giving rise to the liability. This limitation of BSI’s liability will survive termination of the Contract.
6 Force Majeure
Save with respect to your obligation to pay all fees and expenses pursuant to Section 6 of Part 2 of this Contract, neither you nor BSI will be in breach of the Contract if it is not reasonably possible to perform an obligation under the Contract due to circumstances beyond that party’s reasonable control. In such circumstances the affected party will be entitled to a reasonable extension of the time for performing such obligations. If the period of non-performance continues for eight weeks, the party not affected may terminate the Contract by giving 14 days' advance written notice to the other party.
7 No Partnership or Agency
Nothing in this Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
8 No Assignment
Unless specifically permitted in any of the Appendices attached, the Contract is personal to the parties and neither party may assign, transfer, charge, mortgage, subcontract, or deal in any other manner with any or all of its rights and obligations under the Contract. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Notwithstanding the preceding paragraph, BSI may assign, transfer or subcontract any or all of its rights and obligations under the Contract to a BSI Affiliate.
(On notice) Either party may terminate the Contract at any time by giving the other party not less than 60 days’ notice of its intention to end the Contract. In the event of termination of this Contract for any reason any annual management fee paid (if applicable to you) and the application fee are non-refundable.
(Immediately by BSI on notice) Without prejudice to any rights that have accrued under the Contract, BSI may terminate the Contract:
a) with immediate effect if you fail to pay any amount under the Contract on the due date for payment and it remains unpaid 7 days after BSI has notified you to make such payment; or
b) if you breach any material obligation of the Contract and such breach remains unremedied, if such breach is capable of remedy, after thirty (30) days from the date of notification to you by BSI of such breach, or immediately upon notice by to you by BSI if such breach is incapable of remedy; or
c) with immediate effect if, in the reasonable opinion of BSI, you act in such a manner that may bring the reputation of BSI into disrepute; or
d) with immediate effect if you are unable to pay your debts as they fall due, or you suspend the payment of your debts, or you make a proposal to your creditors to reschedule any of your debts; or you take any action in connection with your winding up or suffer the appointment of an administrator or an administrative receiver; or someone takes action to attach or take possession of any of your assets; or you stop the business you were doing at the time of entering into the Contract; or you become insolvent or are wound up; or any event occurs, or proceeding is taken, in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in this paragraph
(Payment of outstanding amounts) All amounts payable by you to BSI under the Contract will become due immediately upon termination of the Contract for whatever reason.
10 Non Disclosure of Confidential Information
Confidential Information means all information of a confidential nature relating to your business that is disclosed to BSI in connection with the Services, but does not include information that:
a) is or becomes generally available to the public (other than as a result of its disclosure by BSI in breach of the Contract); or
b) was known to BSI before you disclosed it; or
c) you have not treated as confidential or have agreed with BSI is not confidential or may be disclosed.
BSI will keep Confidential Information confidential for a period of 6 years after it has received it and will not use or disclose it except:
a) for the purpose of exercising or performing its rights and obligations under the Contract; or
b) to the extent required by law, or by any governmental or other regulatory authority or accreditation authority, or by a court or other authority of competent jurisdiction
In these cases, BSI will not be required to notify you of such disclosure and will not be required to oppose any demand made by such entities.
11 Entire Agreement
The Contract constitutes the entire agreement between you and BSI and supersedes and extinguishes all previous drafts, agreements, warranties, arrangements and understandings, whether written or oral, relating to its subject matter. Each party acknowledges that, in entering this Contract it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding that is not set out in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
If there is an inconsistency between any of the provisions of the Contract and the provisions of any master services agreement, purchase Proposal, your standard conditions of purchase or any other document stated to be produced relating to the Services or the Contract, the provisions of this Contract will prevail.
No variation of or amendment to the Contract will be effective unless it is in writing and signed by an authorized representative of each party.
If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.
If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.13 NoticesA notice required to be given to a party under or in connection with the Contract must be in writing and sent to the party at its address on the Proposal. Unless expressly prohibited by the Proposal, notices may be sent by email.
14 Governing law and Jurisdiction
The law governing the Contract shall be that of New South Wales and the courts of New South Wales shall have non-exclusive jurisdiction in connection with it.
The Contract has been entered into on the date of your signature of the Proposal.