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In these General Conditions for the SGS Verification of Legal Timber Services (the “Services”) the following terms shall have the following meanings:
“Application”: shall mean the request for Services submitted by a Client.
“Client”: means any person or entity applying for systems, services or product verification under the Services.
“Client Assessments”: means assessments of the Client performed by the Company using the Standard.
“Company”: means any of the affiliated companies of SGS SA or any of their agents (each a “Company”).
“Deliverable”: means the assessment results (report and public summary, if applicable) and related certificate that will be provided to the Client upon completion of the Services.
“Proposal”: shall mean the outline of Services to be rendered by SGS to the Client.
“Standard”: means the principles and criteria of legality related to forestry management and timber production procedures and systems, and the associated assessment guidelines, known as the VLTP Standard and against which the Company will perform the Services and issue its findings.
Unless otherwise agreed in writing, all offers or services and all resulting contractual relationship(s) between Company and Client shall be governed by these General Conditions for the Services and, as applicable, the Proposal and the Standard (the “Contractual Relationship(s)”). Save as otherwise provided no variation to the Contractual Relationship(s) shall be valid unless it is in writing and signed by or on behalf of the Client and the Company.
(a) The Company will provide the Services using reasonable care and skill and in accordance with the Standard.
(b) The contents of the Deliverable represent the Company’s review of facts and documents in existence at the time of performance of the Services only and within the limits of the instructions received and are solely for the benefit of the Client which is responsible for acting as it sees fit on the basis of such Deliverable.
(c) The Company may delegate the performance of all or part of the Services to an agent or subcontractor and Client authorises Company to disclose all information necessary for such performance to the agent or subcontractor.
(d) Client acknowledges that the Company, by providing the Services, neither takes the place of Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of Client to any third party or that of any third party to Client.
The Client will:
(a) establish and maintain a system of policies and controls in line with the Standard against which the Client desires to be assessed;
(b) prepare and implement a system of procedures and monitoring plan consistent with the Standard which will allow for the gathering of the necessary data and the reporting of the necessary data in a complete, transparent and accurate manner (the “Report”);
(c) notify the Standard and request the Services by submitting an Application to the Company;
(d) ensure that sufficient information, instructions and documents are given in due time to enable the required Services to be performed;
(e) provide the Company with all necessary and requested access to Client books, records, information systems and facilities such that the Company may verify the contents of the Client Report;
(f) comply with the Company’s requests to conduct interviews, meetings or discussions with the Client’s employees and agents on any matters relating to the Services, within such deadlines as the Company shall establish;
(g) supply, if required, any special equipment and personnel as well as local transportation, subsistence and accommodation facilities necessary for the performance of the Services;
(h) ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services and will not rely, in this respect, on the Company's advice whether required or not; and
(i) inform Company in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing including, for example, presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons.
(a) Fees not established between the Company and Client at the time the order is placed or a contract is negotiated shall be at the Company’s standard rates (which are subject to change) and all applicable taxes (including VAT) , the resulting costs shall be born by SGS (including costs for the immobilisation of staff and transportation not included in the rates shall be payable by Client.
(b) Unless a shorter period is established in the invoice, Client will promptly pay all fees due to the Company not later than 30 days from the relevant invoice date or within such other period as may be established by the Company in the invoice (the “Due Date”), failing which interest will become due at a rate of 1.5% per month (or such other rate as may be established in the invoice) from the Due Date up to and including the date payment is actually received.
(c) Client shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, counter claim or set off which it may allege against the Company.
(d) Notwithstanding any jurisdiction election set forth herein, Company may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
(e) Client shall pay all of the Company's collection costs, including attorney's fees and related costs.
(f) In the event any unforeseen problems or expenses arise in the course of carrying out the services the Company shall endeavour to inform Client and shall be entitled to charge additional fees to cover extra time and cost necessarily incurred to complete the services.
(g) If the Company is unable to perform all or part of the services for any cause whatsoever outside the Company’s control including failure by Client to comply with any of its obligations provided for in Article 4 above the Company shall nevertheless be entitled to payment of:
(h) Additional fees shall be charged for operations that are not included in the Proposal and for work required due to non-conformances being identified. These will include, without limitation, costs resulting from:
(i) Any use by the Client of the Deliverable or the information contained therein is conditional upon the timely payment of all fees and charges. In addition to the remedies set out in these General Conditions for SGS Verification of Legal Timber Services, SGS reserves the right to cease or suspend all work and/or cause the suspension or withdrawal of any Deliverable for a Client who fails to pay an invoice when due.
(a) Upon completion by Company, the Deliverable shall be presented to the Client in its entirety. The Client may, at its sole discretion, or the Company may, subject to Client acceptance, publish or submit said Deliverable to any government or other appropriate agency or otherwise to any third party to which such submission may be of interest.
(b) The ownership of the Deliverable provided to the Client by the Company in connection with the Services shall remain vested in the Company. Company has the right to make and retain copies of said Deliverable for the purposes of Company’s own records subject to the provisions of Article 9 below. Company has the right to suspend or withdraw the Deliverable if Client fails to comply with any of its obligations under the Contractual Relationship(s).
(c) Receipt of the Deliverable does not mean that any government or any other third party will validate Client’s timber and forestry management procedures and systems nor that Client will be listed as a participating company in any government or third party timber program, nor that Client will be selected or approved as a service provider by any other company.
(a) The Company shall be entitled to resign from its duties for any reason and without cause by written notice served upon the Client at least 30 days prior to the proposed effective date of such resignation.
(b) The Client may remove the Company for any reason and without cause by written notice served upon the Company at least 30 days prior to the proposed effective date of such removal.
(c) Upon resignation or removal, all fees than due and payable shall be paid to Company. Client acknowledges that, should Company resign or be removed prior to delivery of the Deliverable, no portion of said Deliverable which may be in the possession of Client may be used for any reason, including as the basis for any work performed by any substitute service provider and Client shall indemnify and hold Company harmless from and against any claims which may be brought against Company by any such misuse.
(a) Limitation of Liability:
(b) Indemnification: Client shall guarantee, hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against all claims (actual or threatened), liabilities, demands, penalties, forfeitures, suits, judgments and the associated costs and expenses (including attorneys’ fees) which the Company may hereafter incur, become responsible for or pay out as a result of (1) Client’s breach of any term or provision of the Contractual Relationship; (2) Client’s failure to comply with any regulatory provisions to which it is subject due to the nature of its business and the products it sells; (3) any negligent or willful acts, errors or omissions by Client, its employees, officers, agents, representatives, subcontractors and Related Third Parties; or (4) Client’s products and/or services.
(a) As used herein, “Confidential Information” shall include any and all oral and written information provided to SGS by the Client (the “Client Information”) and to the Client by SGS (the “Company Information”) as well as the Deliverable , however, that Confidential Information shall not include any information which (1) is or hereafter becomes generally known to the public; (2) was available to the receiving party on a non-confidential basis prior to the time of its disclosure by the disclosing party; (3) is disclosed by an independent third party with a right to make such disclosure. Unless required by law, neither party shall disclose the other’s Confidential Information to any person nor entity except as expressly provided for herein.
(b) In the event a receiving party becomes legally compelled to disclose any of the Confidential Information (the “Compelled Party”), the Compelled Party shall provide the other party with prompt notice so that such party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Article. In the event that such protective order or other remedy is not obtained or the party waives compliance, the Compelled Party shallonly furnish that portion of the Confidential Information which the Compelled Party is legally required to disclose and will seek to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
(a) If any one or more provisions of these General Conditions are found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(b) During the course of providing the Services and for a period of one year thereafter Client shall not directly or indirectly entice, encourage or make any offer to Company’s employees to leave their employment with the Company.
(c) Use of the Company’s corporate name, logo or registered marks for advertising purposes is not permitted without the Company’s prior written authorisation.
(d) Except as expressly provided for herein, the Client may not assign any of its rights or obligations hereunder without the Company’s prior written consent.
(e) These terms and the order confirmation form, which together reflect the Contractual Relationship(s), shall constitute the entire agreement between the parties with respect to the subject matter with all other prior contracts, proposals, representations, negotiations and understandings, either oral or in writing, being hereby superseded. Any amendment or modification hereof shall only be binding if it is made in writing and signed by the authorised representatives of each party.
Unless specifically agreed otherwise, all disputes arising out of, or in connection with, the Contractual Relationship(s) hereunder shall be governed by the substantive laws of Switzerland exclusive of any rules with respect to conflicts of laws and be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall take place in Paris (France)and be conducted in the English language.
May 2006 – Published online on February 4th 2008