NimkarTek Business Terms & Conditions

Last Updated: March 2021

1. Terms and Conditions – Testing

NimkarTek, its subsidiaries, and its affiliates (collectively, “NimkarTek”) will provide its testing services (“Services”) subject to the terms and conditions herein contained (“Terms”). The Terms are the only conditions upon which NimkarTek is prepared to deal with the Client, and they shall govern this contract to the entire exclusion of any other expressed or implied conditions.

The Terms may only be modified by a variation expressed specifically in writing signed by a duly authorized representative of NimkarTek.

1. ACCEPTANCE OF SERVICES

All orders for any Services are subject to acceptance by NimkarTek, and a binding commitment shall not be made unless NimkarTek accepts the order by writing or the issuance of a written test report (“Report”). The risk and property of the goods shall remain with the Client at all times. Samples are required to be sent with the relevant Test Request Form (TRF). In the event that a TRF is not sent and the sample is accepted by NimkarTek in writing, or by issuance of a Proforma Invoice and/or a Test Report, these Terms shall govern the contract. NimkarTek ‘s acceptance of a sample submitted with an unsigned TRF shall in no way be treated as a waiver of the Terms, and the Client agrees that any Services provided by NimkarTek shall be subject to the Terms.

NimkarTek may refuse to accept a sample if the quantity, form and condition do not conform to our acceptance criteria for analysis.

2. EMAIL TRANSMISSIONS

Reports will be sent by Soft Copy (Email communication) unless requested otherwise. NimkarTek acknowledges that the Client may request to access the Reports by means of e-mail. If the Client requests to access its Reports by e-mail, the Client acknowledges that such transmissions will not be encrypted and will no longer be confidential. The Client further acknowledges that such transmissions may be intercepted by third parties and modified inadvertently. NimkarTek disclaims any and all liability arising out of or in connection with e-mail of Reports.

Hard copy of the report will be sent on customer’s request (in writing). NimkarTek may issue additional printing, stationary and courier charges for all hard copies of Test Reports.

3. REPRODUCTION OF REPORTS AND PUBLICITY

Reports shall not be reproduced in full unless prior written authorization from NimkarTek has been attained. Reports prepared by NimkarTek are issued subject to the condition that they are not to be made public or used in connection with or for the purpose of any advertising, promotional, or publicity undertaking or material whatsoever without the prior expressed consent in writing of NimkarTek thereto.

4. CONFIDENTIALITY

NimkarTek shall notify Client in advance before placing any Client information in the public domain, except for information that Client makes publicly available or when NimkarTek and Client has agreed to make the disclosure. All other information is considered proprietary information and shall be regarded as confidential. When NimkarTek is required by law or authorized by contractual arrangements to release confidential information, Client shall, unless prohibited by law, be notified of the disclosure of information. NimkarTek may release confidential information to accreditation bodies for assessment purposes.

5. DISCLAIMER

Any testing is carried out to the best of the knowledge and capability of NimkarTek. The Report reflects the findings of NimkarTek at the time and place of testing and does not relieve sellers or manufacturers from their contractual liabilities or prejudice buyers’ right for compensation for any apparent and/or hidden defects during the testing carried out by NimkarTek or occurring thereafter. Any Report results are not a recommendation for any specific course of action.

It shall be the responsibility of the Client to ascertain and notify NimkarTek of the standards with which any sample submitted must comply in any country or territory in which such sample is intended to be sold. In absence of specific instructions, NimkarTek will adopt the test methods and standards, which in its sole and absolute discretion, are considered appropriate.

A Report issued by NimkarTek shall refer only to the sample actually tested and shall not refer or be deemed to refer to the bulk from which such sample may be said to have been obtained. In no circumstances shall NimkarTek’s responsibility extend beyond testing and reporting upon the samples tested by NimkarTek and any inference to be drawn from the result of such testing shall be entirely in the discretion and the responsibility of the Client. NimkarTek shall have no obligation to update the Reports after its issuance.

NimkarTek will, subject to the Client’s requirements, test any sample submitted to it to ascertain its conformity or otherwise with contract description or sample (such contract description or sample are to be provided by the client). In no circumstances will NimkarTek render any opinion as to the description, quantity, or the fitness of any sample for the purpose of which it is said to be intended unless in any specific case NimkarTek is required to do so and agrees to do so in writing.

A copy of all Test Reports will be stored by NimkarTek for a period of one year, from the date of the Test Report only.

6. TURNOVER TIMES

Unless otherwise agreed in writing with the Client, any time periods specified by NimkarTek on the face hereof for performing the Services are business estimates only and NimkarTek will not be liable to the Client for any loss or damage whatsoever sustained by the Client as a result of NimkarTek’s failure to comply with such times.

7. DISCLOSURE OF REPORT

In the event that any Report issued by NimkarTek is required for use in connection with or for evidence in any Court or Arbitration proceeding by the Client, NimkarTek will render all assistance and explanations reasonably required in connection therewith but all costs and expenses incurred by NimkarTek in giving such assistance, including court appearance, expert testimony, or explanations shall be charged to the account of the Client.

8. RELATIONSHIP OF PARTIES

Nothing herein shall be construed to create a partnership, joint venture, or agency between the parties. Neither party has the authority to bind the other or incur any obligation on the other party’s behalf.

9. WARRANTY

NimkarTek warrants solely to the Client that the Report will be free of any material error or omission caused by the negligence of NimkarTek or its employees. Any claim for breach of such warranty shall be made in writing to NimkarTek within Thirty (30) days after the date of issuance of the Report. In the event that a timely written claim has been made by the Client, NimkarTek, at its sole discretion, may either redo the testing to fix the deficiency without charge to the Client or refund the Client in the amount of the fee paid, free of interest.

10. INDEMNIFICATION

In the event that NimkarTek shall suffer any loss or damage as a result of NimkarTek and/or its employees and /or its agents carrying out or providing the Services to the Client or on goods supplied by or at the direction of the Client other than as a result of its error, negligence or wilful default, then the Client shall indemnify NimkarTek and compensate NimkarTek for such amount of loss or damage suffered.

NimkarTek provides reports, recommendations, and advice relying on the information provided by the client. NimkarTek shall not be held liable for any claims directly or indirectly arising out of services performed in consideration of the incorrect or incomplete information and instructions received from the client. In any event that NimkarTek is held liable for any claims directly or indirectly arising out of services performed in consideration of the incorrect or incomplete information and instructions received from the client or its affiliates, the client shall fully guarantee and indemnify NimkarTek for any losses, damages, or expenses suffered from such claims, including but not limited to attorney’s fees.

11. LIMITED LIABILITY

To the fullest extent permitted by law, in no event shall NimkarTek, employees and subcontractors and licensors be liable for (a): any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, revenue, goodwill, use or content) however caused, under any theory of liability, even if NimkarTek has been advised as to the possibility of such damages.

To the maximum extent permitted by applicable law, the aggregate liability of NimkarTek shall be limited to an amount equal to the testing cost of the particular service performed which gives rise to such liability. The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose.

In the event that NimkarTek is found liable for any loss, damage, or destruction of the goods that are subject to be tested by NimkarTek caused by the error, negligence, or willful default or act of NimkarTek or its employees and subcontractors, then, in any such case, the liability of NimkarTek shall be limited to the invoice price of the Services provided by NimkarTek, free of any interest.

12. DISPOSAL OF SAMPLES

All samples will be stored for a period of 90 days from the date of the Test Report. After this period, the samples will be suitably destroyed by NimkarTek unless special arrangements have been made in advance with the Client in writing in regards to the disposal thereof.

13. PAYMENT

In the event that the payment terms are not established or negotiated between NimkarTek and the Client, NimkarTek’s standard rates (which are subject to change) and all applicable taxes shall govern as the payment terms for NimkarTek’s services.

Client agrees to make prompt payment immediately (in advance) or within thirty (30) days from the invoice date or within such other period as may be established by NimkarTek as the “Due Date.” In the event that the Client owes payment under any overdue invoices, NimkarTek reserves the right to suspend all further performance of its Services and withhold the issuance of any Test Reports and Certificates until payment of all sums owing to NimkarTek under the aforesaid invoice(s) together with interest at the rate of 1.5% per month thereon. Until the contract sums together with interest has been received, NimkarTek is entitled to be paid reasonable storage charges for samples retained in NimkarTek’s custody. The Client agrees to reimburse NimkarTek for any costs it incurs in collecting overdue payment, including but not limited to court costs and fees and attorney expenses and collection agencies. Client shall not be entitled to retain or defer payment of any sums due to NimkarTek on account of dispute, counterclaim, or set off which it may allege against NimkarTek.

In any event that the Client requests invoices for Services to be issued to third parties, including but not limited to, agents, vendors, and factories, the invoiced third party must meet local credit requirements for the country where the invoice is issued, which may include partial or full prepayment. Payment of invoices issued to the requested third parties shall remain the responsibility of the Client and shall be reissued to the Client in any event that the invoices remain unpaid for longer than Thirty (30) days. NimkarTek reserves the right to suspend Services and/or change payment terms to full prepayment for Clients with overdue invoices of Sixty (60) days or more.

14. ARBITRATION AND CHOICE OF LAW

Any dispute, difference or claim arising out of or in connection with the Terms, or the breach, terminations or invalidity thereof if not settled between the parties shall be settled by arbitration. The arbitration award shall be given in writing and shall be final and binding on the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters thereto. The place of arbitration shall be in District and Sessions court, Thane, India. There shall be only one arbitrator. The language to be used in the arbitral proceedings shall be English.

15. FORCE MAJEURE

NimkarTek shall not be liable for any loss or damage caused by delay in the performance or non-performance of any of its obligations hereunder where the same is occasioned by any cause whatsoever that is beyond NimkarTek’s control including but not limited to an Act of God, war, civil disturbance, requisitioning, governmental or parliamentary restrictions of any kind, import or export regulations, strike lockout or trade dispute (whether involving its own employees or those of any other persons), difficulties in obtaining workmen, breakdown of machinery, and fire or accident. Should any such events occur, NimkarTek may cancel or suspend the contract in question without incurring any liability whatsoever for any loss or damage thereby occasioned.

In the event that NimkarTek is prevented by any reason whatsoever outside NimkarTek’s control from performing and completing its Services for an order made by the Client, the Client agrees to pay NimkarTek the amount of all abortive expenditures incurred and a percentage of the agreed fee equal to the percentage of the service actually performed. In such event NimkarTek shall be discharged from all responsibility for any and all non-performance of the ordered Services.

In the event that any unforeseeable time or costs are incurred in the course of performing its services, NimkarTek shall be entitled to render the additional charges to the Client to reasonably reflect the extra time and costs incurred.

17. DELEGATION OF PERFORMANCE

NimkarTek, shall be entitled to delegate the performance of the whole or any part of the Services contracted for with the Client to any agent or subcontractor.

18. SEVERABILITY AND ENTIRETY

These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, NimkarTek and Client will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between NimkarTek and the Client regarding the Services. The Terms supersede any prior contract or oral or written statements regarding the Services.

19. WAIVER

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

2. Terms and Conditions – Training

General

This chapter refers to the Terms and Conditions of NimkarTek’s Training services – In-Person, Online Training and Hybrid Training programs

Training Program Bookings and purchases of Online Training Modules are processed on the understanding that these Terms and Conditions have been read and accepted by the delegate.

For detailed Terms and Conditions on Online Training, please refer to the NOTES Platform.

Payment and Fees

Full payment must be received before commencement of the course otherwise NimkarTek may refuse attendance on such course. All course fees are exclusive of value added tax, unless otherwise stated.

Delegates may be substituted at any time at no extra cost provided the delegate or substitute has informed NimkarTek prior to the commencement of the course. If a delegate wishes to transfer a booking to a later course an administration fee of USD 50 will be charged. Normal cancellation fees apply thereafter (see below). Only one transfer will be permitted per course booking.

Cancelling courses - All cancellations by the delegate will incur a minimum administration charge of USD 50. NimkarTek reserves the right to cancel a course at any time without liability. In these circumstances, delegates will be offered an alternative date, a credit note or a full refund.

Travel and accommodation is not included in the course fees (for in-person workshops) and is the responsibility of the delegate. Course fees shall include [course materials and refreshments only].

Data Protection

NimkarTek will comply with all applicable requirements of the Data Protection Legislation. Please read the Privacy Policy of the NOTES Training Platform (https://notes.nimkartek.com/Policy.aspx) for more information

Copyright

All intellectual property rights (including but not limited to copyright) in any course materials provided by NimkarTek to the delegates belong to and shall remain the sole property of NimkarTek.

NimkarTek shall grant the delegate a non-exclusive licence to use such intellectual property rights in the materials.

Any tape recordings or copies of course materials made will be an infringement of NimkarTek’s copyright, unless otherwise agreed by NimkarTek.

Liability

NimkarTek shall not accept liability for anyone acting as a result of information or views expressed by NimkarTek or its employees on any training course or in any course materials.

Opinions expressed are those of the trainers and may not necessarily be those of NimkarTek. Delegates should take professional advice (where possible) when dealing with specific issues. Liability shall be limited to twice the course fee.

Changes

Changes to this Document NimkarTek reserves the right to change the Terms and Conditions from time to time at its sole discretion, and will post the updated document on the Website(s) and Changes are effective immediately upon posting. Your continued use of the Website/s following changes to the Terms and Conditions document will indicate your acceptance of them.

3. Terms and Conditions – Consultancy

General

These Conditions apply to all contracts for the supply of Consultancy Services by NimkarTek. In the event of a conflict between these Conditions and a contract proposal the terms of the contract proposal will prevail.

NimkarTek reserves the right to make minor alterations to the design specification or construction of the type of Services supplied without prior notification to the Customer.

Quotation and Orders

For all consultancy services, NimkarTek will send a written proposal or a quotation. If the customer agrees to the Project Scope and the price, this should be communicated to NimkarTek in writing. The Project / contract will commence once NimkarTek acknowledges the order in writing.

Where any order is based upon any Standard pricelist provided by NimkarTek, then, the price shall be valid provided that provision of the Services is to take place within 30 days from the date of order.

NimkarTek reserves the right to increase the price quoted per contract for Services entered into if the Customer subsequently requests Additional Items.

The Customer must ensure that when required sufficient quantities of Sample are submitted to the Supplier to permit the Services to be performed accurately and to their full extent. NimkarTek reserves the right to request further Samples from the Customer if deemed appropriate and necessary.

If any process is to be applied to the Samples by NimkarTek in accordance with a specification submitted by the Customer, the Customer shall indemnify the Supplier against all loss, damages, costs and expenses awarded against or incurred by NimkarTek in connection with or paid or agreed to be paid by NimkarTek in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from NimkarTek’s use of the Customer's specification and/or Samples.

NimkarTek will undertake to hold and retain any and all Samples submitted by the Customer for a period of at least 30 days after the date of the Report. After this 30 day period the Samples will be destroyed unless specific written instruction is received from the Customer to indicate otherwise and NimkarTek acknowledges receipt of such instructions in writing. Samples are returned at the Customers cost and expense.

NimkarTek confirms and the Customer acknowledges that the Report shall be produced and the Services carried out solely on the basis of the information, documents and Samples provided by the Customer. NimkarTek does not provide any guarantee or warranty that the Report will be a representation of any bulk of any of the Customer's goods or products which any Samples represent and the Customer acknowledges that the Report is based solely on the information, documents and Samples and is not a representation of any bulk of the Customer's goods or products. The Customer further acknowledges that the Report is based on NimkarTek’s reasonable assessment of the matter that is the subject of the Contract and while NimkarTek has used its reasonable skill and care in preparing the Report the Customer acknowledges that the nature of the Report is such that differing views may be held on the same subject matter.

NimkarTek can rely on all information and documentation provided by the Customer which is supplied with the Samples, the order or in response to a request for information and documentation as being true, accurate and complete.

Payment Terms

Unless otherwise stated any Additional Items shall be added to the price and all quoted prices in USD are exclusive of Tax, if applicable. All Prices quoted in INR have additional 18% GST as applicable.

Payment in full for the Services shall be due and payable in within 30 days of the date of the invoice. Where payment requested is not received within 30 days of demand, NimkarTek reserves the right to suspend all further Services for the Customer and to recover any additional loss from the Customer.

NimkarTek reserves the right to recover from the Customer all direct expenses reasonably incurred by the Supplier in the collection of any overdue sums and/or any bank costs, expenses or charges which may be incurred by NimkarTek (including but not limited to, short falls arising from foreign currency conversion) as a result of any payment by the Customer to NimkarTek, pursuant to the Contract.

NimkarTek reserves the right to require payment in full before delivering or performing any Services whatsoever for the Customer

Performance and Force Majeure

NimkarTek shall take all reasonable steps to perform its obligations and perform the Services within the Delivery Period, but such times are estimates only. NimkarTek shall not be liable for expenses losses or damages caused by late performance or delay in delivery and delays shall not entitle the Customer to rescind the Contract.

Estimates provided by NimkarTek to the Customer for delivering the Report are made in good faith and every effort will be made to comply with the date provided. Such estimates are subject to unforeseen circumstances and as such late delivery of a report cannot give rise to a claim from the Customer.

NimkarTek shall have no liability for any expenses losses or damages caused by delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of plant or machinery, failure of raw material or supply of raw material, inability to obtain sufficient labour or sufficient skilled labour or any other cause or causes beyond the reasonable control of NimkarTek. If such cause or causes prevent provision of the Services within the Delivery Period either party may cancel the order on giving written notice to the other at least 30 days before NimkarTek may reasonably expect to complete the order without liability to compensate the other party for any loss or damage whatsoever sustained by reason of the non-performance of the Services.

NimkarTek reserves the right to make part deliveries and to submit invoices for the Services supplied as part of an order.

NimkarTek reserves the right to subcontract or assign all or part of its rights or obligations pursuant to this Contract to any third party as determined by NimkarTek from time to time.

Payment Terms

Once the Services are ready to be provided, NimkarTek shall be entitled to invoice and be paid for the Services as if they had been delivered and provided respectively if for any reason the Customer does not arrange for or allow provision of the Services.

Where the Services are to be delivered in instalments, each delivery shall constitute a separate contract. If for some reason NimkarTek is unable to deliver any one or more of the instalments in accordance with these Conditions shall not entitle the Customer to treat the Contract as a whole as repudiated.

Where the Services involve the provision of advice in connection with statutes, bye-laws, regulations, orders, delegated legislation, non-governmental statements and the like the Customer acknowledges that such advice is based on publicly available information, the accuracy of which has not been verified NimkarTek.

While NimkarTek has used all reasonable skill and care when compiling such advice to ensure its accuracy, NimkarTek makes no representations or give any warranties regarding the accuracy of such advice. The Customer further acknowledges that, subject to the above, such advice can only be correct at the time it is given and it is the Customer's sole responsibility to request that the Supplier update the advice given on a regular and timely basis before using such advice in the course of the Customer's trade or business.

Confidentiality

The Customer and NimkarTek undertake that both parties shall not disclose confidential information concerning the business, affairs, customers, clients or suppliers to a third party.

The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause

Customer Property

If any property (including but not limited to Test Samples etc.) of whatsoever nature of the Customer is used in connection with the Services, the Customer shall indemnify NimkarTek for any loss or claim suffered by NimkarTek as a result of using such property. If such property has not been removed within 30 days from the date of the Report, NimkarTek reserves the right to destroy the Samples.

Termination

NimkarTek shall, at its option, be entitled by notice to terminate all or any of its contracts with the Customer forthwith and recover all expenses, losses and damage resulting to NimkarTek if (but not limited to): the Customer has a bankruptcy petition presented against him or a bankruptcy order is made; the Customer makes or seeks to make any composition or arrangement with his creditors; (an encumbrancer takes possession of any of the Customer's assets, or any of the Customer's property is taken in execution or process of law; a petition is presented or an order is made or a resolution is passed for the winding-up of the Customer; the Customer fails to make any payment owed to NimkarTek on the due date; or the Customer is in breach of the terms and conditions of any contract with NimkarTek (including breach of these Conditions).

Notices

Any notice, consent, notification, acknowledgement, authority or agreement required or referred to in the Contract shall be in writing and given to the party for whom it is intended.

Changes

Changes to this Document NimkarTek reserves the right to change the Terms and Conditions from time to time at its sole discretion, and will post the updated document on the Website(s) and Changes are effective immediately upon posting. Your continued use of the Website/s following changes to the Terms and Conditions document will indicate your acceptance of them.

Contact Details

Got Questions:
If you have questions or concerns regarding this document, please contact us in writing:
E-Mail:info@nimkartek.com
Mailing Address: NimkarTek, 3rd Floor, Narmada, Laxmi Industrial Complex, Vartak Nagar, Pokhran Road 1, Thane (West), 400606, India
Phone: +91 22 25888463