This User Agreement (this “Agreement”) describes the terms and conditions applicable to Your access to, and use of, the SGS Société Générale de Surveillance SA (“SGS”) web site located at http://sgsonsite.sgs.com. We may amend this Agreement at any time by posting the amended terms on our site. Except as stated below, all amended terms shall automatically become effective 7 days after they are initially posted on our site. This Agreement may not be otherwise amended except in a writing signed by You and SGS. This Agreement is effective as of February 26, 2004 for new registering users and is otherwise effective on March 1, 2004 for all users registered prior to February 25, 2004.
1. Definitions and Interpretations
1.1 In this Agreement the following words will have the following meanings unless the context otherwise requires:
"Client" means those persons or entities (private, public or governmental) which place orders for Services through SGSonSITE.
"Confidential Information" means all confidential information, know-how and data of a technical, commercial, financial or other nature which is disclosed by either SGS or You to the other.
“Database” means an on-line file hosted by SGS and created for or by You for the purpose of storing records, creating order requests and viewing status reports.
"Direct Online Payment" means when You pay SGS directly for Download Services with a credit card (Visa, Master Card, Discover and AMEX) via SGSonSITE.
"Direct Offline Payment" means when You pay SGS directly for Download Services by bank transfer or check.
“Download Services” means those products or other services which are available to You upon payment of the corresponding subscription fees.
"Force Majeure" means any cause beyond the reasonable control of the affected party which shall include (but not be limited to) acts of God, perils of the sea or air, fire, flood, explosion, sabotage, accident, embargo, acts of terrorism or riots, labour strikes, failure or shortage of power supplies, civil commotion or civil authority, acts or omissions by any telecommunications or cable carrier, operator or administration or other competent authority, the act or omission of any Internet service provider, war, delay or failure in manufacture, production or supply by third parties of equipment or services.
"Services" means the Download Services, inspection, testing, sampling, analysis and certification services which may be accessed or ordered through SGSonSITE and which are subject to the Service specific terms and conditions available at www.sgs.com/Terms-and-Conditions (to be referred to individually as the “Service” and collectively as the “Services”).
“SGS DigiTr@de” is a Download Service allowing for the electronic transfer of commercial and administrative data to You and which is further subject to those terms and conditions found at www.sgs.com/Terms-e-Documents.
"SGSonSITE" means the Web Site "www.sgsonsite.com" owned and operated by or on behalf of SGS.
“SGS Group” means any company controlling, controlled by or under joint control with, SGS.
"SGS Trade Marks" means any and all trade marks whether registered or not and including any applications which may now or in the future be from time to time owned by or licensed to SGS including those depicted in SGS' Trade Mark Use Guidelines from time to time.
"URL" means Uniform Resource Locator.
"Web Site" means pages or a related group of pages which are linked together using the hypertext transfer protocol.
"You" and "Your" means the Client which orders Services under these and any Service Specific Terms and Conditions.
1.2 Capitalised terms used but not defined herein shall have the meanings provided in the Service specific terms and conditions available at www.sgs.com/Terms-and-Conditions.
SGS is committed to protecting the privacy and information of its customers. Please review our Privacy Notice available at www.sgs.com/Privacy-Policy which also governs Your relationship with SGS, to understand our practices.
3. Fees and Services
Unless You are registering for Download Services, opening an account with SGSonSITE is free. Our fee and payment policy regarding the provision of all Services other than Download Services is set forth in the applicable Service specific terms and conditions or is otherwise notified to the Client at the time an order confirmation is issued. The fee, payment and renewal policy for Download Services is set forth below:
3.1 Subscription Fees: The subscription fees for each Download Services are set out on the relevant webpage describing such Download Service. All subscription fees are for an annual period unless otherwise stated on the relevant webpage. No refunds or fraction refunds of subscription fees will be allowed.
3.2 Payment of Fees: You may make payment using either the Direct Online Payment or Direct Offline Payment method. If payment is made by the Direct Online Payment method then the Download Service will not be accessible until notice of credit card authorisation has been received by SGS and further in accordance with any additional conditions as SGS may impose from time to time. If payment is made by the Direct Offline Payment method then the Download Service will not be accessible until payment is physically received by SGS. In those cases in which the transfer of funds must be done in local currency, SGS will convert the US Dollar quotation into the local currency amount using the relevant exchange rate as notified to You by SGS from time to time.
3.3 Renewals: One month prior to the end of any subscription period, SGS will advise You via email that Your subscription is up for renewal. Any subscription not renewed within ten (10) business days prior to termination of a subscription period will be deemed cancelled and Your access to Download Services will be suspended.
4. Intellectual Property Rights
You acknowledge that the domain names (including www.sgs.com, sgsonsite.sgs.com and all related country specific sites), configurations, displays, screens, software, code, algorithms, scripts, inventions, trade secrets, images, graphics, text, and all information appearing on or displayed in connection with or contained by SGS on its Web Site, including without limitation the SGS Trade Marks (collectively, the "SGS Intellectual Property"), are covered by various intellectual property right protections, including domestic and international copyright, trademark, and trade secrecy laws. You acknowledge that SGS and/or third-party content providers remain the owners of the information on this Web Site, and that You do not acquire any of those ownership rights by printing or downloading any of the information or making use of the Service. You shall take no action to decompile, reverse-engineer, infringe, or misappropriate any of the SGS Intellectual Property, nor shall You register or attempt to register in Your own name anywhere in the world any of the SGS Intellectual Property or elements thereof.
5. License and Site Access
SGS grants You a limited license to access and make personal use of SGSonSITE and not to download (other than page caching) or modify it, or any portion of it, except with the express written consent of SGS. This license does not include any resale or commercial use of SGSonSITE or its contents; any collection and use of any product listings, descriptions or prices; any derivative use of SGSonSITE or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots or similar data gathering and extraction tools. SGSonSITE or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any commercial purpose without the express written consent of SGS. You may not frame or utilise framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) of SGS without express written consent. You may not use any meta tags or other “hidden text” utilising SGS Intellectual Property without the express written consent of SGS. Any unauthorised use terminates the permission or license granted by SGS.
6. Your Account
6.1 Your Information: “Your Information” includes any information data, text, software, photographs, graphics, video, messages or other materials You provide to SGS or other users during the registration or ordering processes, in any public message area, through any email feature or by uploading to Your private access area(s). You are solely responsible for the accuracy and security of Your Information. SGS may take any action, however, with respect to Your Information that SGS deems necessary or appropriate in its sole discretion if it believes it may create liability for the SGS Group or may cause the SGS Group to lose (in whole or in part) the services of its ISPs or other service partners. You hereby warrant that You have all rights, including copyrights, necessary to submit Your Information to SGS. You acknowledge that SGS does not have any responsibility to determine what information that is submitted to SGS is protected, nor will SGS be responsible for the use of Your Information by other users of SGSonSITE.
6.2 Registration Obligations: If You register with SGSonSITE You agree to: (a) provide true, accurate, current and complete information about yourself or company as prompted by the customer account form and (b) maintain and promptly update the customer information to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or if SGS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SGS has the right to suspend or terminate Your registration and refuse any and all current or future use of SGSonSITE. If You have registered with us on behalf of a company or other entity then You represent and warrant that You have the authority to bind such company or other entity to this Agreement.
6.3 User ID, Password and Security: During the registration process You will select a User ID and password. Your SGSonSITE account and User ID may not be transferred or sold to another party and You are solely responsible for maintaining the confidentiality of Your User ID and password and for all activities that occur under Your User ID and password. You agree to (a) immediately notify SGS of any unauthorised use of Your User ID or password or any other breach of security and (b) ensure that You properly exit SGSonSITE at the end of each session. SGS cannot and will not be liable for any loss or damage arising from Your failure to comply with this clause 6.3.
6.4 Rules about Your Account: You represent and warrant that Your Information and the products or services which may be the subject of orders for Services (a) will not be fraudulent or involve counterfeit, stolen or banned goods; (b) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) will not violate any law, statute, ordinance or regulation (including, without limitation, those governing export controls, trade quotas, consumer protection, unfair competition, anti-discrimination or false advertising); (d) will not be defamatory, trade libellous, unlawfully threatening or harassing; (e) will not be obscene or contain child pornography; (f) will not contain any viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (g) will not link directly or indirectly to or include descriptions of goods or services that (i) are prohibited under the terms of this Agreement and/or any Service specific terms and conditions or (ii) You do not have a right to link to or include. You also agree not to use SGSonSITE (x) in connection with chain letters, junk e-mail, spamming or any duplicative or unsolicited messages; (y) to collect e-mail addresses and other information about others without their consent or (z) to create false e-mail addresses or otherwise attempt to mislead others as to the identity of the sender or the origin of a message.
SGS may provide, or third parties may provide, links to other World Wide Web sites or resources. Because SGS has no control over such sites and resources, You acknowledge and agree that SGS is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that SGS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any such content, goods or services available on or through any such site or resource.
8. On-Line Services
8.1 General:SGSonSITE provides You with the ability to order the Services on-line, receive electronic documents using the SGS DigiTr@de service and access Service status reports. Certain Accounts also provide You with access to a personalised Database, the contents of which are defined between You and the SGS Group company which provides You with the Services.
8.2 Database Contents:All information contained in the Database belongs to You unless otherwise agreed between You and the SGS Group company which provides You with the Services. Some Databases may allow You to modify information, establish inspection schedules, upload documents generated by You or otherwise access Reports of Findings.
9.1 SGS hereby warrants to You that:
a) its issuance of this Agreement does not and will not breach any other agreement or terms and conditions to which it is a party; and
b) it has the necessary authority to issue this Agreement.
9.2 You hereby warrant to SGS that:
a) Your acceptance of this Agreement does not breach any other agreement or terms and conditions to which You are a party; and
b) Should You place any order for any Service on behalf of a third party, such action is taken by You pursuant to instructions provided by such third party and You undertake to communicate the terms of this Agreement and the Service specific terms and conditions (as applicable) to such third party and Your acceptance of this Agreement and the Service specific terms and conditions (as applicable) shall also bind such third party as if such third party had placed the order; and
c) You will provide all the answers required for the provision of the Services in good faith and will not knowingly, recklessly or carelessly make any misrepresentations or incorrect statements; and
d) You will comply with any additional terms and conditions published by SGS from time to time.
10. No Warranties
10.1 The information set forth on, and description of Services offered through, this Web Site were believed by SGS to be accurate at the time of preparation or obtained from sources believed to be reliable. SGS makes no warranty concerning the accuracy of the information or of the Service descriptions set forth in the Web Site or the results obtained through their use. In addition, SGS makes no express or implied warranties, either of merchantability, fitness for a particular purpose or of any other nature regarding the information or Service descriptions set forth in the Web Site.
10.2 SGS gives no representation or warranty, express or implied and whether arising by common law or statute that any electronic documents, computer software or data (which shall include without limitation disks, tapes, hard drives, Database access or any other form of programme or file delivery, tangible or intangible and whether delivered to You electronically via a communications network or otherwise) (collectively, the "Data") supplied to You is free from any computer virus or other malicious programming or is accurate or is confidential or is compatible with Your computer systems or that there is no functionality included which is incompatible with Your computer systems. SGS shall not be liable for any disruption in the Data transmission, errors or omissions in the content of the Data, or loss or damage which may arise by the delivery of the Data, save to the extent that such liability cannot by law be limited or excluded.
11. Term and Termination
11.1 This Agreement, unless otherwise notified to You in accordance with clause 11.2 below, shall remain valid and applicable to You for so long as You remain a user in good standing of SGSonSITE.
11.2 SGS reserves the right, at any time and without prior notice to You, to terminate its relationship with You in the event that You are in breach of any of Your warranties or obligations under this Agreement and, in particular, Your undertaking to not misuse or misrepresent the scope and validity of the Services to third parties, particularly where the name and reputation of SGS and/or any of its Affiliates is or is liable to be harmed or tarnished as a result.
11.3 Notwithstanding the above clauses 2, 4 and 9 through 13 will survive termination of this Agreement.
12.1 No Agency or Partnership: Both SGS and You are acting alone and not as an agent, representative or employee of the other. Nothing in this Agreement or any action taken hereunder will create between SGS and You, or be deemed to create between SGS and You, a partnership, association, joint venture or other co-operative entity.
12.2 Assignment: You may not assign or otherwise transfer any of Your rights or obligations under this Agreement.
12.3 Invalidity: If any provision of this Agreement is found to be invalid, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement or any Service specific terms and conditions.
12.4 Waiver: Failure by either party to exercise any right or remedy under this Agreement does not constitute a waiver of such right or remedy.
12.5 Precedence: In the event of any discrepancy or inconsistency between this Agreement and any Service specific terms and conditions, the Service specific terms and conditions shall take precedence.
13.Governing Law and Jurisdiction
This Agreement (and any dispute, controversy, proceeding or claim of whatsoever nature arising out of or in any way relating to it) shall be governed by, and interpreted in accordance with, the substantive laws of Switzerland exclusive of any rules with respect to conflicts of laws and all disputes shall 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. Unless otherwise agreed, the arbitration shall take place in Geneva, Switzerland in English.