Certification Terms & Conditions
NOTE: These Terms & Conditions below are a baseline example and are not be regarded as the latest version as they are continually reviewed for legal accuracy and fairness. Current Terms and Conditions can be obtained by prospective clients upon request to: firstname.lastname@example.org
Unless otherwise agreed in writing all offers or services provided by MSS Global Ltd and all resulting contractual relationships shall be governed by these General Terms and Conditions.
These Terms and the Proposal constitute the entire agreement between the Client and MSS Global with respect to the subject matter ("the Contract"). No variation to the Contract shall be valid unless it is in writing and signed by the Client and MSS Global.
Where a Certificate is issued to the Client, MSS Global will provide the Services using reasonable care and skill.
Accreditation Body (AB)
means the United Kingdom Accreditation Service, BRCGS, CMMC Accreditation Body, or other Accreditation Bodies overseeing the delivery of certification for approved schemes.
means an assessment of the Client's quality management system, or security management system;
means the certificate issued by MSS Global;
means the client identified in the Proposal and references to "you" or "your" in the Contract are to the Client;
Codes of Practice
means those codes of practice issued by MSS Global in accordance with the relevant Standards;
means fulfilment of a requirement in the appropriate scheme;
Duration & Days
means a period of time as specified on the quotation and audit proposal. An auditor day is classed as 8 working hours; travel (en-route or between sites) and any breaks are not included in the duration of management system certification audits.
means the action of signing MSS Global's Proposal as confirmation of the Client's desire to engage the services of MSS Global and confirmation that the Client agrees to MSS Global's Agreement for Certification;
mean any cause whatsoever outside of a party’s control, including, but not limited to, acts of god, war, terrorist activity or industrial action; illness, death or resignation of significant senior personnel;
means non-fulfilment of a requirement in the appropriate scheme. Grades:
Critical nonconformities (BRCGS only) - Where there is a critical failure in the site's scheme related management system, either because of identification of an illegal and/or mortally dangerous activity, or failure to comply with a statement of intent of a fundamental requirement of the BRCGS Standard.
Major nonconformities – Where the failure affects the capability of the scheme related system to achieve its intended results (e.g. where there is a substantial failure to meet a clause of the Standard). If there is a significant doubt that effective process control is in place, or that products or services will meet specified requirements, or where a number of minor nonconformities associated with the same requirement or issue demonstrate a systemic failure and thus constitute a major nonconformity.
Minor nonconformities – Where a failure does not affect the capacity of the scheme related system to achieve the intended results (e.g. where a requirement has not been met but, based on objective evidence, the conformity of the system is not in doubt). A group of minor nonconformities against the same requirement of the management system which have not been closed may be considered by MSS Global as representing a major nonconformity.
means the outline of services to be rendered by MSS Global to the Client as referred to in clause 4.2;
means a report issued by MSS Global to the Client indicating findings including whether or not a recommendation to issue a Certificate is to be made if relevant;
means the services to be provided by MSS Global as set out in clause 3 below.
Including one or more of: ISO 9001, ISO 28000, ISO 28007-1, ANSI/ASIS PSC.1, ISO 18788, ISO 14001, ISO 27001, ISO 37001, ISO 45001, BRCGS Ethical trade and responsible sourcing, ISO 37001, Anti-human trafficking, or any other agreed audit Criteria against which conformance or compliance is assessed.
means the meeting(s) after Engagement (including annual surveillances) undertaken by MSS Global and/or the relevant Accreditation Body on the Client's premises. The auditor may be accompanied by other personnel for training, assessment or calibration purposes for which no charge will be levied on the Client.
3.1 Subject to the requirements of the Client, MSS Global shall provide the Client with certification services, in accordance with international or national standards, or client specified standards ("the Services").
3.2 The Client acknowledges that MSS Global, either by entering into the Contract or by providing the Services, neither takes the place of the Client or any third party, nor releases them from any of their obligations, whether legal, regulatory or otherwise, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of the Client, whether legal, regulatory or otherwise to any third party or that of any third party to Client or under any relevant laws, regulations or codes of practice.
3.3 Certification, suspension, withdrawal or cancellation of a Certificate shall be in accordance with the applicable Codes of Practice.
3.4 MSS Global may delegate the performance of all or part of the Services to an agent or a subcontractor and the Client authorises MSS Global to disclose all information necessary for such performance to the agent or subcontractor, and confirms that such disclosure shall not be a breach of clause 16.
3.5 MSS Global will screen agents when appropriate. This process includes interview, review of criminal records where appropriate and available, gathering of references, passports, driving licenses and any relevant work permits and licenses, including human rights background checks.
3.6 During the course of this Agreement, Client may request or MSS Global may recommend a change in the scope of the Services or Deliverables, to include changes that impact the time or cost of performance or delivery of the Services or Deliverables. Changes to the scope of the Services or Deliverables shall be made only in a writing executed by an authorized representative of both parties. MSS Global shall have no obligation to commence work in connection with any change until the fee and/or schedule impact of the change is agreed upon by the parties in writing.
4.1 Following your enquiry to MSS Global, you will be requested to supply MSS Global with such information as MSS Global reasonably requires to assess your enquiry, and to provide a quotation for Services and a Proposal. This may include company and site address, company lead contact details, scale (geographic and personnel – employees, subcontractors, migrant, seasonal, ethnic and gender split, children (regarded as those under the age of 18)), services, key suppliers, prior legal or human rights action, site hazards and required PPE, and any licenses or permits required to operate.
4.2 Following the provision of this information by the Client, MSS Global shall provide you with a written quotation for MSS Global services specifying the duration and cost involved, and detailing the Services to be provided.
4.3 Once agreed, the Proposal may only be amended with the written agreement of MSS Global.
5. Initial Assessments
5.1 In order to enable MSS Global to adequately assess the Client's standards and compliance to determine whether certification can be awarded, the Client undertakes to:
Provide MSS Global with any pre-assessment self-assessment questionnaires required to support the scheme;
Allow MSS Global full access to all work areas, personnel, records and documentation relevant to the application/enquiry;
Demonstrate conformance to the specified standard, to MSS Global's reasonable satisfaction;
Comply with the provisions of clause 6; and
Nominate a management representative to liaise with MSS Global and advise MSS Global of this nomination.
5.2 The auditor is to be in a fit condition to assess, therefore if air travel is over 4 hours, they require 12 hours’ rest prior to commencement of assessment in country, or business class air travel to/from the place of assessment, and access to an airport lounge. Direct flights are to be used where available and of a class commensurate with the client company’s management lead.
5.3 If MSS Global is not satisfied in its absolute sole direction that conformance can be adequately demonstrated during the Assessment, it may be necessary to undertake further assessment; additional time is chargeable (See Clause 10). Should this be the case, they will be arranged in advance and a written quotation provided. This written quotation and extension of the Services shall form part of the Proposal.
5.4 Initial assessments should be completed within 3 months unless at the sole discretion and acceptance of MSS Global, client operational circumstances force a delay. The first stage of the audit will normally require repeating if the second stage is delayed beyond 3 months, and will be repeated if the delay extends beyond 6 months. This agreement will be considered to have expired unless delivery of any service occurs within 12 months of the agreement unless an extension is mutually agreed between parties.
5.5 Following the Initial Assessment, and any subsequent assessments, MSS Global shall prepare a Report. Any recommendation given in the Report is not binding on MSS Global, and the decision to issue a Certificate is at the sole discretion of MSS Global.
6. Obligations of the Client
6.1 The Client shall ensure that MSS Global is provided with all up to date, accurate and relevant information and accepts that the certification will be immediately withdrawn and/or terminated should MSS Global become aware of any incorrect, out of date or misleading information being provided to MSS Global in relation to the Services.
6.2 The Client shall ensure that all product samples, access, assistance, information, records, documentation and facilities are made available to MSS Global when required by MSS Global, including the assistance of properly qualified, briefed and authorised personnel of the Client. The Client shall ensure that the company is adequately prepared as portrayed in the pre-audit review process; should the company prove not adequately prepared and additional auditor time is required to conclude the task due to delayed presentation of evidence during the audit, or the findings raised, including reviews of the RCA/CAP and any supplementary evidence, the Client accepts that this additional time may be chargeable as set out in clause 10.2. In addition, the Client shall without charge, provide MSS Global with suitable space for conducting meetings in confidence for the duration of the Services.
6.3 So far as it is permitted by law, the Client acknowledges that, it has not been induced to enter into the Contract in reliance upon, nor has it been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Contract and, to the extent that it has been it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto. Any conditions or stipulations included in the Client standard form documents which are inconsistent with, or which purport to modify or add to, this Contract shall have no effect unless expressly accepted in writing by MSS Global.
6.4 The Client shall take all necessary steps to eliminate or remedy any obstacles to or interruptions in the performance of the Services by MSS Global.
6.5 The Client may only reproduce or publish extracts of any Report if the Client has obtained the prior written authorisation of MSS Global. MSS Global reserves its rights to lodge a complaint in case of disclosure in breach of this clause or disclosure which MSS Global considers in its sole discretion is abusive or detrimental to MSS Global. The Client shall not publicise details of the way in which MSS Global performs, conducts or executes its operations.
6.6 The Client shall immediately inform MSS Global of any and all changes in their premises, personnel and systems which relate to the Services which may affect the Client's management system, service, products, process or skills. Any breach of this obligation to inform may lead to the withdrawal of the Certificate. Furthermore, the Client is bound to inform MSS Global of any critical or major nonconformity identified during internal audits undertaken by the Client, its Clients and its partners or public authorities.
6.7 The Client shall inform MSS Global of any material change in circumstances or significant incidents (which shall include serious complaints, public safety issues, legal action against the Client, significant site damage, press releases involving the site or substantial change in procedures) following the issue of a Certificate. The Client is also required to inform MSS Global, without delay, of the occurrence of a serious incident breach of regulation within the scope of certification necessitating the involvement of the competent regulatory authority.
6.8 Immediately upon the withdrawal or expiry of a certificate for any reason, the Client shall no longer refer to having the benefit of the certificate, shall remove the certificate as soon as reasonably practicable from all materials including marketing materials and websites, and shall inform any third party who contracts with the Client on the requirement that the Client has such a certificate, that the certificate is no longer held by the Client. It is normally expected that these actions take no more than 10 working days.
6.9 Certain countries may require licenses, visa or other third party approval to perform the Services. The Client is responsible for obtaining all such required visas, licenses or other third party approval, including site access permissions to MSS Global and its employees and contractors to ensure MSS Global is fully compliant with all required laws, including local laws of countries where MSS Global is required to enter to perform the Services. The Client will obtain all such required documentation in accordance with all laws and regulations. Where the Client is unable to obtain a visa, or it requires personal application from the MSS Global agent, then the Client is to ensure sufficient time is included prior to deployment. Costs, including time visiting Consulates and Embassies will be charged as per Section 10 and will be in addition to any audit time.
7.1 Following a satisfactory Assessment, or if necessary, additional subsequent assessment by MSS Global to the Client and submission of an adequate corrective action response (where necessary) an independent review of the Report will be conducted by the MSS Global Decision Makers. If MSS Global in its sole absolute discretion determines that the results of the report are satisfactory, MSS Global shall then grant certification explicitly covering each certified site or scope. As evidence of certification the Client will be issued with a Certificate, valid for up to 3 years, detailing the scope of assessed activities and location(s).
7.2 MSS Global may at any time refuse certification or revoke, suspend or terminate certification where, in MSS Global's reasonable opinion, compliance with the specified standards or this agreement have not been met. The certificate may remain suspended for a maximum of 6 months, after which time it shall be withdrawn if issues remain unresolved.
7.2.1 Specific for BRCGS schemes, where a critical non-conformity is identified, the site will be ungraded. MSS Global in its sole discretion shall determine if a site requires a new initial certification audit (Stage 1 and Stage 2) or a Stage 2 only. Once the non-conformity has been resolved, the site may apply to MSS Global to conduct a repeat initial certification audit (both stages or Stage 2 only). In these circumstances the site shall immediately inform its customers and make them fully aware of the circumstances. Information on the corrective and preventive actions to be taken to address the nonconformities shall also be provided to the customers where required by MSS Global.
7.3 The Client may promote its certification. Use of MSS Global’s corporate name and that of any associated Accreditation Body or oversight organization, or any other registered trademarks for advertising purposes is not permitted without MSS Global’s prior written consent.
8. Surveillance, Recertification & Operational Changes
8.1 It is a condition of this agreement that you advise MSS Global in writing, if at any time you no longer comply with this Contract or the specified standard, or make significant changes to your management system or certified services, including both during the Assessment, or after the issue of the Certificate. You should advise your designated MSS Global contact immediately. This includes:
Legal, commercial, organisational status or ownership;
Change of control;
Organisation and management (e.g. key managerial, decision making, or technical staff);
Contact address and sites;
Scope of operations under the certification scope;
Enforcement action by relevant regulatory authorities;
Major changes to the management system and processes;
Major changes to the services and products provided;
Evidence of a significant public safety issue, including product recalls where appropriate to the scheme.
8.2 MSS Global shall make regular visits to the Client’s premises to ascertain the continuing effectiveness of the management system. The duration and frequency shall be at the reasonable discretion of MSS Global. This will be no less than annually, and in the sole discretion of MSS Global, based on conformance risk (performance, location, scheme, and views of wider stakeholders), can be more frequent.
8.3 Should the Client no longer comply with the certification standards at any time, MSS Global may in its absolute sole discretion, revoke the Certificate, and/or impose requirements on the Client to retain or regain certification.
8.4 At the end of the certified period, following initial certification and surveillance cycles, your Certificate will cease to be valid and you will be due for recertification.
8.5 At the end of the term of the Certificate, the Client shall no longer hold itself out as having the Certificate and will remove references to the Certificate from its website, marketing materials and literature.
8.6 Relevant Accreditation Bodies reserve the right to conduct their own visits to certificated sites in response to complaints or as part of routine Accreditation Body compliance activity to ensure the integrity of the scheme. For BRCGS, such visits may be announced or unannounced.
8.7 From time to time additional visitors may accompany MSS Global auditors; this activity is not chargeable to the Client, and may include:
training of new auditors by MSS Global;
routine Certification Body shadow audit programmes;
witness audits by Accreditation Bodies;
witness audits by relevant scheme owners (for example, BRCGS);
witness audits by a specifier where a specifier specific additional audit module is included.
9. Scheme Requirements Product Conformity
It is a requirement of all product conformity schemes that you advise MSS Global in writing of any knowledge of non-conforming products/services. The Client undertakes to inform MSS Global upon becoming aware of any non-conforming products/services within 48 hours.
10. Charges and Payment
10.1 The Client shall pay the fees of MSS Global in respect of the Services, in accordance with the Proposal, within 14 days of the date of the invoice or prior to Certificate issue (as detailed in the Proposal). The fees shall be in accordance with the following terms:
fees will be agreed in advance with the Client; this includes any potential need for adjustment of work estimate due to changes in client readiness for audit.
the daily rate will be that which is in force at the time the work is carried out; these are reviewed periodically and up to date rates can be sought from MSS Global at any time prior to work delivery
Between 33% and 50%% of the initial audit fee will be paid upfront upon agreement of the Proposal. Under 5 days will be charged at 50%; similarly, in the sole discretion of MSS Global if international bank payments are likely to prove challenging for the client.
Up to 100% for surveillance and special audits during the life of the Certification (issued on the lead up to each individual surveillance audit).
the balance of the audit fee shall be paid by the Client within 14 days of delivery of the requested Services and prior to any Certificate issue, and MSS Global shall issue the Client with an appropriate invoice.
where there is greater than 1 month (30 calendar days) between service delivery elements, settlement may be requested for services delivered to date, with the final balance on completion of all services delivered, and prior to Certificate issue where appropriate.
fees will be exclusive of but subject to VAT where appropriate.
For travel to/from the auditor’s place of domesticity, 50% day rates will be charged for the initial travel day of departure from, and day of return to, the auditor’s place of domesticity. Other travel time to get to/between/within theatres will be charged at full rate as the audit team will be dedicated solely to the client.
Auditor’s home rates apply for departures leaving auditor’s home after 1200hrs their local time, or arriving back in to their home before 1200hrs their local time.
Deployed rates apply for departures leaving the auditor’s home before 1200hrs UK local time, or arriving back in to their home after 1200hrs their local time.
Once deployed, audit team travel days within the audit (e.g. to, from, intra and inter theatre moves) are charged at full day rate as the audit team is solely dedicated to the client.
MSS Global reserve the right to charge interest on overdue invoices from the date when payment is due until the date payment is made at the United Kingdom Statutory Interest rate above the Bank of England base rate at the time of invoice settlement.
travel, accommodation and subsistence costs directly incurred by MSS Global in support of the Client will be reimbursed by the Client at cost plus a 5% administration fee.
10.2 Additional fees shall be charged for operations that are not included in the enquiry and for work required due to non-conformances being identified. These will include, without limitation, costs resulting from:
10.2.1 repeats of any part, or all, of the assessment programme or operations due to the registration procedures and rules not being met;
10.2.2 additional work due to suspension, withdrawal and/or reinstatement of a certificate;
10.2.3 additional work due to the Client proving not to be as prepared as portrayed in the pre-audit review process;
10.2.4 reassessment due to changes in the management system or products, process or services; or
10.2.5 compliance with any subpoena for documents or testimony relating to work performed by MSS Global.
10.3 Additional fees will be payable at MSS Global’s charging rates in force from time to time in respect of rush orders, cancellation or rescheduling of services or any partial or full repeats of the assessment programme or operations which are required as set out in the Codes of Practice.
10.4 A copy of MSS Global’s prevailing charging rates are available on request from MSS Global.
10.5 Unless otherwise stated all fees quoted are exclusive of travelling and subsistence costs (which will be charged to the Client in accordance with clause 10.1 above). All fees and additional charges are exclusive of any applicable Value Added Tax, Sales Tax, Withholding Tax or similar tax in the country concerned.
10.6 Invoices for additional and further work will be issued on completion of the relevant task. Unless advance payment has been agreed upon, all invoices are payable within fourteen (14) days of the date of each invoice (the “Due Date”) regardless of whether the Client’s system or products qualify for certification failing which interest will become due at the United Kingdom Statutory Interest rate at the time of invoice settlement above the Bank of England base rate from the Due Date up to including the date payment is actually received. Interest shall accrue daily and be payable monthly.
10.7 Any use by the Client of any Report or Certificate or the information contained therein is conditional upon the timely payment of all fees and charges. In addition to the remedies set out in the Codes of Practice, MSS Global reserves the right to cease or suspend all work and/or cause the suspension or withdrawal of any Certificate for the Client who fails to pay an invoice in accordance with this clause 10.
10.8 The Client shall not be entitled to retain or defer payment of any sums due to MSS Global on account of any dispute, counter claim or set off which it may allege against MSS Global.
10.9 MSS Global may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
10.10 The Client shall pay all MSS Global’s collection costs including reasonable legal fees and related costs.
10.11 Additionally, in the event MSS Global is required to respond to a subpoena (e.g. producing documents in our possession, providing testimony, cooperating with your legal counsel, etc.) related to this engagement (regardless of whether such subpoena is served during or subsequent to the completion of our work), MSS Global will invoice you at its standard hourly rates applicable at the time such services are rendered.
11. Cancellation or Postponement
11.1 If the proposed Services are cancelled or postponed at short notice by the Client, MSS Global reserves the right in its absolute sole discretion to charge the Client a cancellation fee based on the estimated costs of the service, as follows:
Number of working days before commencement and maximum charge:
30 or more working days
0% - except for any activity that has already taken place (100% of planning time is then chargeable)
10-29 working days
60% of the estimated costs
9 working days or less
100% of the estimated costs
11.2 The cancellation fee may not apply in the following exceptional circumstances and the same shall be determined by MSS Global in its absolute sole discretion:
the announcement of major redundancies;
the announcement of a take-over/buy out; or
exceptional personal circumstances.
12.1 Subject to payment of the fees to MSS Global, the Contract will terminate automatically upon delivery of the requested Services.
12.2 MSS Global shall not be required to fulfil its duties and obligations under the Contract if MSS Global is prevented from fulfilling its duties and obligations by any acts or omissions of the Client.
12.3 Notwithstanding termination of the Contract, the provisions of clauses 6, 8, 9 and 16 shall continue to apply.
12.4 MSS Global is entitled, at any time prior to the issue of a Certificate, to terminate the Contract if the Client is in material breach of its obligations and, following receipt of notice of such breach, the Client fails to remedy to the satisfaction of MSS Global such breach within 30 days.
12.5 Either party shall be entitled to terminate immediately the provision of the Services in the event of any arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by the other party.
12.6 In the event that the Client transfers its activities to another organisation, the transfer of the Certificate shall be subject to the certification body’s prior written consent. Where such consent is given, the Client shall procure that the use of the Certificate by such transferee shall be governed by the Contract.
13. Ownership of MSS Global Certification, Logo and Mark Usage
13.1 The Certificate and the logo of MSS Global and any associated use of Accreditation Body logos shall remain the property of MSS Global and/or the associated Accreditation Body, and you agree not to assign, charge, licence, transfer or otherwise deal with either of them in any way.
13.2 As the Client you will not use the Certificate in a way that undermines MSS Global’s status as a competent and impartial auditor. You will not undertake declarations highlighting MSS Global without direct and clear authority of MSS Global.
13.3 Once granted you are not to intimate or show that a product or service is approved by MSS Global.
13.4 Conditions for the use of the MSS Global certification logo are captured in an appendix to this Contract, as updated from time to time. It is also publicly available on our website.
13.5 Any document including, but not limited to any Report or any Certificate, provided by MSS Global and the copyright contained therein shall be and remain the property of MSS Global and the Client shall not alter or misrepresent the contents of such documents in any way. The Client shall be entitled to make copies for its internal purposes only. Duplicates of Certificates are available upon request and at a charge, for external communication purposes.
13.6 MSS Global grants the Client a revocable, royalty free, non-exclusive licence to use the MSS Global logo in accordance with this Contract. The MSS Global certificate and logo are specific and exclusive to the Client and can be traced to each individual Client to minimise the risk of logo plagiarism.
14.1 The Client is responsible for ensuring that when MSS Global or any associated Accreditation Body visits your site MSS Global and the Accreditation Body has adequate protective equipment for the working environment to be assessed. Where specialist training is required this shall be disclosed to MSS Global at the outset. Please raise these issues with your MSS Global contact in advance of a visit.
14.2 In order to allow MSS Global to comply with the applicable health and safety legislation the Client shall provide MSS Global with all available information regarding known or potential hazards likely to be encountered by MSS Global personnel during their visits. MSS Global shall take all reasonable steps to ensure that whilst on the Client’s premises, its personnel comply with all health and safety regulations of the Client, provided that the Client makes MSS Global aware of the same.
15. Limitation of Liability and Warranties
15.1 IN NO EVENT SHALL MSS GLOBAL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES (INCLUDING BUSINESS INTERRUPTION), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE WHICH MAY BE SUFFERED BY A PARTY, EVEN IF MSS GLOBAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMIT OF MSS GLOBAL’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO THE CLIENT OR TO ANY THIRD PARTY CONCERNING ANY MATTER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS, SHALL NOT IN THE AGGREGATE EXCEED THE FEES AND EXPENSES PAID BY CLIENT TO MSS GLOBAL HEREUNDER. CLIENT'S EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF THESE ARRANGEMENTS SHALL BE FOR MSS GLOBAL, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS EXPENSE, AND FAILING THAT, THE RETURN OF FEES PAID TO MSS GLOBAL FOR THE WORK RELATED TO THE BREACH, OR PAYMENT UNDER AN INSURANCE CLAIM. The allocations of liability in this Section 15.1 represent the agreed and bargained‑for understanding of the parties and MSS Global's compensation for the Services reflects such allocations. The Client agrees further that it will look only to the assets of MSS Global in connection with any liabilities hereunder and in no event shall the Client have any claim against any affiliate, shareholder, partner or holder of an ownership interest in MSS Global in connection with this Agreement.
15.2 All warranties and conditions and other terms implied by statute or common law on MSS Global, are to the fullest extent permitted by law, excluded by this Contract, including but not limited to ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
15.3 The Client acknowledges and accepts that where Services are required to change to comply with Accreditation Body guidelines or any other legal requirements, MSS Global shall not be liable for breach under this Contract.
15.4 Nothing in this agreement limits or excludes the liability of MSS Global for:
death or personal injury resulting from negligence; or
any damage or liability incurred by the Client as a result of fraud, or fraudulent misinterpretation by MSS Global.
15.5 [intentionally left blank]
15.6 MSS Global shall not be liable to the Client nor to any third party:
15.6.1 for any loss, damage or expense arising from (i) a failure by Client to comply with any of its obligations herein (ii) any actions taken or not taken on the basis of the Reports or the Certificates; and (iii) any incorrect results, Reports or Certificates arising from unclear, erroneous, incomplete, misleading or false information provided to MSS Global;
15.6.2 for loss of profits, loss of production, loss of business or costs incurred from business interruption, loss of revenue, loss of opportunity, loss of contracts, loss of expectation, loss of use, loss of goodwill or damage to reputation, loss of anticipated savings, cost or expenses incurred in relation to making product recall, cost or expenses incurred in mitigating loss and loss or damage arising from the claims of any third party (including without limitation product liability claims) that may be suffered by the Client; and
15.6.3 any indirect or consequential loss or damage of any kind (whether or not falling within the types of loss or damage identified in 15.6.2 above).
15.7 Each party shall take out adequate insurance to cover its liabilities under the Contract.
15.8 Except for cases of proven gross negligence or fraud by MSS Global and subject to the other provisions of the Contract, the Client further agrees to hold harmless and indemnify MSS Global and its officers, employees, agents or subcontractors against all claims (actual or threatened) for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising (i) relating to the performance, purported performance or non-performance, of the Services or (ii) out of or in connection with the Client's product, process or service the subject of the certification (including, without limitation, product liability claims).
15.9 MSS Global shall have no liability to the Client for any claim for loss, damage or expense unless arbitral proceedings are commenced within one year after the date of the performance by MSS Global of the service which gives rise to the claim or in the event of any alleged non-performance within one year of the date when such service should have been completed.
15.10 Except as otherwise specified in this Contract, Client agrees to indemnify, defend and hold harmless MSS Global (as well as its agents, employees, principals, partners, shareholders, or holders of an ownership interest, as the case may be), from and against any third party claims, demands, losses, damages or expenses relating to (i) bodily injury or death of any person or damage to real and/or tangible personal property or (ii) related to this Contract.
16.1 For the purposes of the Contract, "Confidential Information" shall mean any oral or written proprietary information that a party may acquire from the other party pursuant to the Contract or information as to the business of the other party provided, 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 to a party by an independent third party with a right to make such disclosure.
16.2 Unless required by law or by a judicial, governmental or other regulatory body, neither party nor their agents or subcontractors shall use the Confidential Information other than for the purpose of the Contract nor disclose the other’s Confidential Information to any person or entity without the prior written approval of the other party except as expressly provided for herein.
16.3 Each party may disclose the other party’s Confidential Information to its employees, officers, representatives, advisers, or relevant Accreditation Bodies who need to know such information solely for the purposes of carrying out the party’s obligations under this agreement provided that the relevant party shall ensure that its employees, officers, representatives, or relevant Accreditation Bodies advisers to whom it discloses the other party’s Confidential Information comply with this clause 16, and shall be responsible for the same.
16.4 MSS Global as a UK registered company is required to comply with the General Data Protection Regulations, introduced in May 2018. Clients are required to ensure any personal information regarding MSS Global personnel, and associated Accreditation Bodies based in the European Union or UK is treated in accordance with those regulations, and the privacy of those people is maintained subject to legitimate, direct business-related need.
17. Force Majeure
17.1 If either party is prevented from performing or completing its obligations under the Contract as a direct result of Force Majeure it shall promptly notify the other party of the nature and extent of the circumstance in question.
17.2 Neither party shall be deemed to be in breach of this agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
17.3 In the event of a Force Majeure affecting the Client and the Services not being able to be provided by MSS Global, the Client will pay to MSS Global:
17.3.1 the amount of all abortive expenditures actually made or incurred by MSS Global; and
17.3.2 a proportion of the agreed fees equal to the proportion (if any) of the Service actually carried out,
and MSS Global shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required Services.
18.1 If MSS Global receives a complaint about your organisation, within the scope of your certification, MSS Global will carry out an investigation. The terms of such investigation shall be determined by MSS Global in its absolute sole discretion. MSS Global shall notify the Client of the results of the investigation.
18.2 If the investigation reveals fault by the Client, MSS Global will require immediate action within a specified time. Failure to take adequate action may lead to withdrawal or suspension of certification. Additional work (head office and audit) may also be required to investigate and resolve the issue, which shall be charged to you as per Clause 10.3.
18.3 If the Client has cause to complain about the provision of MSS Global service, the complaint should be made in writing to the Operations Manager at MSS Global's registered office. Should the Client consider it inappropriate to deal with the Company directly, they have opportunity to raise their concerns with the independent Impartiality Committee who provide oversight of MSS Global to avoid compromise to its position as an impartial and competent Certification Body. The committee’s details are:
Steve Van Niekerk: email@example.com
Karen Lupson: firstname.lastname@example.org
Shaun Sayers: email@example.com
18.4 Further, if the Client has cause to complain about the provision of MSS Global service, they have the opportunity to raise their concerns with the relevant Accreditation Body for the scheme. For BRCGS, this can include a confidential reporting through tellus@BRCGS.com, or enquiries@BRCGS.com.
18.5 For BRCGS schemes, they may contact the certificated site directly in relation to its certification status, for feedback on MSS Global certification body performance or during an investigation into reported issues.
We aim to work with the Client to resolve any complaints raised; sites have the right to appeal the audit decision in writing within 7 calendar days of the certification decision. However, in the unlikely event that they are not satisfied with MSS Global’s response they may register an appeal with the Impartiality Committee. This may be further escalated as a complaint with the relevant Accreditation Body for the scheme. In the event of an unsuccessful Appeal, MSS Global reserve the right to charge the costs for conducting the Appeal.
20. Data Protection
The Parties each warrant to the other that they have and will maintain all necessary data protection notifications and, in providing the other or third parties with information under the terms of this Contract, they will not be in breach of any security arrangements or in breach of the General Data Protection Regulation and all subordinate legislation under the General Data Protection Regulation, including all applicable data protection principles. Audit reports and associated documentation (including auditor's/audit team's notes) shall be stored by MSS Global in a safe, secure and retrievable manner for a period of 7 years following service delivery.
21. Specialize Nature of Services
21.1 The Client and MSS Global agree that the information provided by MSS Global (as part of the Services or in any Deliverables) is time sensitive and, based on the nature of the work, should be re-evaluated regularly and upon any change in circumstances because any change in the circumstances may alter the applicability and reliability of the information. In addition, while MSS Global may make recommendations during the course of the engagement, the Client is ultimately responsible for deciding whether to act or refrain from acting on such recommendations. Notwithstanding any other provision of this Agreement, MSS Global shall not be liable for action or inaction on the part of the Client in accepting or refusing any recommendations made by MSS Global.
21.2 For work performed in areas designated as High-Threat or Hostile Environments: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS A HIGH RISK OF PERSONAL INJURY OR DEATH TO CLIENT’S PERSONNEL OR AGENT’S OR DAMAGE TO PERSONAL PROPERTY AND CLIENT AGREES THAT MSS GLOBAL SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY SUCH LOSS.
22. Entire Agreement
22.1 This Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject manner.
22.2 Each Party acknowledges that in entering into this Contract it has not relied upon any representation, inducement promise or agreement, whether oral, written or otherwise made by or on behalf of the other Party and which has not been incorporated within or specifically referred to in this Contract, and that no other agreement, statement or promise not contained in this Contract shall be valid or binding.
23. Governing Law and Jurisdiction
This Contract shall be governed and construed in accordance with the laws of England and Wales. The parties hereby submit to the exclusive jurisdiction and procedure of the courts of England and Wales.
24.1 Any notice to be given under this Contract shall be in writing and shall be deemed to have been duly given if left at or sent by first class post, registered post or other electronic media to a party at the address or relevant telecommunication number for such party or such other address as the party may from time to time designate by written notice to the other.
24.2 Any notice or other document shall be deemed to have been received by the addressee two working days following the date of despatch of the notice or other document by post or, where the notice or other document is sent by hand or is given by electronic media simultaneously with the delivery or transmission.
25.1 If any one or more provisions of this Contract 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.
25.2 Except as expressly provided for herein, the Client may not assign or transfer any of its rights hereunder without MSS Global’s prior written consent.
25.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract.
25.4 The Parties acknowledge that MSS Global provides the Services to the Client as an independent contractor and that the Contract does not create any partnership, agency, employment or fiduciary relationship between MSS Global and the Client.
25.5 Any failure by MSS to require the Client to perform any of its obligations under this Contract shall not constitute a waiver of its right to require performance of that or any other obligation.
25.6 For the purposes of the Contract, working day means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
25.7 MSS Global shall be entitled to assume, without independent verification, the accuracy of all representations, assumptions, information and data that the Client provides to MSS Global. The Client agrees and represents to MSS Global that all assumptions, representations, information and data that the Client supplied to MSS Global will be complete and accurate to the best of the Client’s knowledge.
26. Publicity & Promotion
In order to maintain the integrity of MSS Global service, Client agrees not to make any misleading statements concerning Client’s application or certification to any third party and Client will use its best endeavours to ensure that no-one connected with Client gives misleading information. Sites wishing to be excluded from public listing should contact MSS Global prior to certificate issue and upload on to publicly accessible databases.