DEED OF AGREEMENT (To be furnished on Non-Judicial Stamp Paper worth Rs. 100/-)

Transcription

1 DEED OF AGREEMENT (To be furnished on Non-Judicial Stamp Paper worth Rs. 100/-) THIS DEED OF AGREEMENT made this day of 2012 BETWEEN BUREAU OF INDIAN STAUDARDS (BIS), a Statutory Body having its Head Office situated at Manak Bhavan, 9, Bahadur Shah Zafar Marg, New Delhi through its Regional Office situated at hereinafter referred to as the BIS (which terms or expression shall, unless excluded by or repugnant to the context, be deemed to include its successor-in-office, representatives, attorneys or assignees) AND M/s having its office at hereinafter referred to as the AGENT (which terms or expression shall, unless excluded by or repugnant to the context, be deemed to include its successor-in-office, representatives, attorneys or assignees). WHEREAS the BIS invited Expression of Interest from companies possessing the requisite technical expertise and infrastructure to carry out Inspections at the Licensees of the BIS under its Product Certification Scheme as empowered under the BIS Act, 1986 and the Rules & Regulations framed thereunder at the charges to be settled by the BIS. AND WHEREAS the AGENT, in response to the above invitation, has expressed its interest confirming possession of the requisite infrastructure, competence and proven expertise in certification related activities. AND WHEREAS the BIS, considering the facts submitted by the AGENT, has agreed to engage the AGENT to undertake inspection related work to be allotted by the BIS. AND WHEREAS the BIS and the Agent hereto have mutually agreed to put the Terms & Conditions in writing to avoid disputes, misunderstanding, litigations between themselves in future. NOW THIS DEED OF AGREEMENT, SIGNED and hereby WITTNESED by and between the BIS and the AGENT, is as follows: 1. For the purpose of this Agreement, the following definitions shall apply: 1.1 Inspection: Shall mean surveillance inspection and/or inspection done for verification of stop marking, deferment of renewal, non-renewal / cancellation at the licensee units of the BIS. 1.2 Inspector: Shall mean technical personnel of the appointed Agent, having requisite qualification and experience, employed by the Agent and approved by BIS for carrying out inspections on behalf of the BIS.

2 1.3 Agent: Shall mean an organization appointed by BIS in India as their Agent to act on their behalf for carrying out inspection. 2. The Agent shall conduct the inspections allotted to it by the BIS. The Agent shall arrange for inspections to be done by its employees with prescribed qualification and experience and not engage any sub-contractor to perform the work assigned by BIS. 3. Inspections at the premises of the licensees of the BIS under its Product Certification Scheme will be allotted by its controlling Branch Office. The work shall be allotted to the Agent only for the area and the discipline for which the Agent has been appointed by the BIS. For such inspections, the Agent shall be Rs. 3000/-* per day for visits within 200* km Rs. 4000/-* per day for visits beyond 200* km from the location of the Branch Office of the BIS, subject to the conditions laid down in this Agreement. The BIS shall also pay to the Rs. 3000/-* for one day s visit in a month to the Branch Office of the BIS, allocating the job of inspections to the Agent for studying the files and preparation of inspection brief. 4. The Agent and its inspectors shall maintain full confidentiality in respect of any information including production technology, market strategy, etc., gained during the inspections and shall, under no circumstances, divulge the information so gathered / acquired to any other person or organization. The Agent shall ensure that its inspector also signs a confidentiality statement (one time) before being given the responsibility of carrying out inspections on behalf of BIS and submit the same to the controlling Branch and Regional Office of BIS. 5. The BIS shall have full rights to supervise, witness and monitor the audits, assess the reports and to reject any report, as submitted by the Agent and the Agent shall not have any claim for payment for such inspection. 6. In case, at any point of time, it is established that an inspector engaged by the Agent has indulged in any practice which is not ethical, or has behaved in a manner uncalled for, the BIS shall direct the Agent to discontinue the use of the services of such inspector for the BIS. In case such or similar incidence is repeated, the BIS shall have the right to terminate the agreement with the Agent after giving fifteen days notice. 7. Such inspector(s) of the Agent, who has / have been found by the BIS to have indulged in unethical practice(s) or have behaved in a manner uncalled for, and in respect of whom the BIS has directed the Agent to discontinue their services, shall also not be used by the Agent for carrying out inspections for the BIS in any other Region / Branch Office of the BIS. In case such an incidence comes to the notice of the BIS, the BIS shall have the right to terminate the Agreement with the Agent after giving fifteen days notice. 8. Payment will be released on production of monthly bills to be submitted by the Agent to respective Branch Offices of the BIS along with the details of the inspections done during the month and subject to compliance to all other conditions. * Revision of rates is under consideration

3 9. In normal situation, this Agreement may be terminated from either side by giving one month s notice in advance. 10. In case of any dispute between the Agent and / or its inspector and the licensee of the BIS, the BIS shall have the exclusive right to decide the matter, which shall be binding on the Agent and /or its inspector. 11. All matters of jurisdiction shall be referred to the relevant courts of law located at the stations where the concerned Branch Office of the BIS is located and where the Agent has been providing services to the BIS. 12. The Agent also agrees to comply with the Terms and Conditions and the amendments thereto issued / to be issued from time to time by the BIS, which are annexed herewith and are / shall remain an integral part of this Agreement. 13. This Agreement shall be valid for one year from the date of signing and may be renewed by the BIS on the basis of the requirement of the BIS, the performance of the Agent in the preceding one year and in conformity to the agreed terms and conditions. However, the Agreement can be renewed in this manner only twice or for a maximum duration of three years, whichever is earlier. 14. The Agent shall, at the time of signing of the agreement, furnish a performance guarantee of Rs. /= (2% of the estimated amount of the total business expected from the BIS during the year, say, 1 st April 2013 to 31 st March 2014), with the BIS through a demand draft or bank guarantee in favour of the Bureau of Indian Standards and payable at the station of the Regional Office of the BIS. No interest shall be payable on the performance guarantee money and it would remain with the BIS for the period of validity of the Agreement. 15. For violation of any provision of the Agreement and / or any of the terms and conditions of the Agreement, which are necessary adjunct to the Agreement, and / or non-performance of services according to the Agreement, the BIS shall be at liberty to make suitable deductions from the bill submitted by the Agent without prejudice to its right under other provisions of the Agreement. The penalty imposed by the BIS shall be binding on the Agent. The BIS shall also have the right to forfeit the performance guarantee and/or en-cash the bank guarantee and get the services performed, in full or in part, from some other source at the cost and risk of the Agent. The decision of the BIS in this regard shall be final and binding on the Agent. IN WITNESS WHEREOF the BIS and the AGENT have set and subscribed their respective hands and seal this the Day, Month and Year first above written. SIGNED, SEALED AND DELIVERED at. Name of Authorized Representative of the Agent: Name and Address of the Agent: Seal of the Agent:

4 Name: Designation: Sc.-F / G & Deputy Director General Region Office of BIS: Region Office Seal: Witnesses: 1. 2.

5 Annex TERMS AND CONDITIONS FOR THE AGENT APPOINTED BY THE BIS FOR CARRYING OUT INSPECTIONS UNDER THE PRODUCT CERTIFICATION SCHEME OF THE BIS (Mandatory Annexure to the Deed of Agreement) General 1. On appointment, the Agent shall sign an Agreement with the concerned Regional Office of the BIS. The Agreement shall be valid for one year from the date of signing and may be renewed on the basis of the requirement of the BIS, the performance of the Agent in the preceding one year and in conformity to the agreed terms and conditions. However, the Agreement can be renewed in this manner only twice or for a maximum duration of three years, whichever is earlier. 2. The Agent shall inform the location of its office and provide bio-data (including photograph) of its inspectors proposed to be deployed for each Branch Office of the BIS for the inspections with details of their qualification and experience. The information, thus received, will be scrutinized by the BIS for compliance to the terms and conditions before an inspector of the Agent is allowed to undertake inspections on behalf of the BIS. The decision of the BIS, in this regard, shall be binding on the Agent and its proposed inspector. 3. Whenever there is any change in the inspectors of the Agent, the Agent shall ensure to inform the change to the concerned Regional and Branch Office(s) of the BIS within seven days of effecting the change. The Agent shall also ensure that its new inspector(s) meet(s) the requisite qualifications and experience as per this Agreement and shall submit the required documents in support thereof. The services of such new inspectors can be used by the Agent only after prior approval from the concerned Regional Office of the BIS. 4. The Agent shall not conduct inspections where the Agent or its inspectors has / have provided consultancy (including training, consultancy, audits, etc., for Management Systems Certification). A consolidated list of all such clients of the Agent with monthly update thereof shall be provided by the Agent to the BIS. 5. The Agent shall not depute the same inspector successively for carrying out inspections for the same licence and / or at the same licensee. 6. The Agent shall establish, document, review and maintain a well-defined system for compliance to the agreed terms and conditions of the Agreement and confirm the same in writing to the BIS. The agent shall arrange to get its inspectors trained periodically, preferably, once in six months, and for this purpose, they shall contact the National Institute of Training for Standardization of BIS. The Agent shall facilitate any audit of his office that the BIS may warrant from time to time.

6 7. In case an inspection has not been carried out or completed to the satisfaction of the BIS, the remaining work shall be again carried out by the Agent on being asked to do so by the BIS, and without any extra cost to the BIS. If the remaining work is not carried out or cannot be completed in time by the Agent, the BIS shall not pay for such inspections. 8. Interpretation of any clause or phrase of the Indian Standards, corresponding scheme of testing and inspection or any other relevant document, shall rest solely with the BIS. The decision of the BIS in this regard shall be final and binding upon the Agent and / or its inspector(s). 9. The Agent and / or its inspector(s) shall maintain strict confidentiality with regard to the information and documents gathered during the inspections. No copies of such information / documents shall be retained either by the Agent or its inspector(s) and all such documents shall be submitted to BIS immediately after the inspection along with the Inspection Report. Use of photocopies / reprints of Indian / International Standards by the Agent and / or its inspector(s) shall be strictly prohibited. 10. The inspectors of the Agent shall carryout inspections in an ethical manner and in conformity to acceptable societal norms of behavior and conduct. The inspections shall focus on ascertaining compliance to the requirements of the relevant Indian Standard and the corresponding Scheme of Testing and Inspection to ascertain that the licensee continues to be competent to manufacture its product as per the Indian Standard and that the licensee continues to abide by the provisions of the BIS Act, 1986 and the Rules & Regulations framed thereunder. Minimum Qualification and Experience of Inspectors 11. The minimum qualification of the inspectors to be deployed by the Agent for carrying out inspections for the BIS shall be at least a Graduation in Engineering / Technology in the relevant discipline(s) and / or Post-Graduation in Chemistry, Biochemistry and Micro-biology from a recognized university / institute. They shall also have minimum five years experience of quality inspection / control / assurance / certification. They shall not be of more than 65 years of age and shall not be employed with any organization. 12. The inspector employed by the Agents shall be clear from vigilance angle from their parent organizations in case they were employee of some organization earlier. The onus in this regard shall rest with the Agent. In case any information or declaration given by the Agent and/or its inspector(s) is found to be incorrect at any stage, BIS shall have the right to terminate the agreement with the Agent after giving fifteen days notice. Responsibilities and Attributes of Inspectors 13. Before proceeding for inspection, the approved inspectors shall: a) thoroughly study the relevant Indian standard and requirements prescribed therein;

7 b) acquaint himself completely with the laboratory procedures that have to be adopted to test the requirements given in the Indian Standard; c) have complete grasp of the STI given in the licence; d) acquaint with the appropriate inspection proformae so that he may be able to carry out the inspection covering all aspects; e) examine conditions, if any, imposed at the time of grant of licence / renewal / inclusion and any other aspect requiring verification during the subsequent visit; f) study at least the last two inspection reports and note down the actions which the licensee had been asked to take, including the types /varieties / grades of samples drawn for independent testing in the previous inspections; g) check-up whether any sample had failed in independent testing and correspondence and actions taken regarding the failure; and h) study the correspondence exchanged with the licensee after the last visit and note down the points on which action by the licensee is pending, such as, dispatch of samples drawn, etc. 14. During the inspection, the inspector shall: a) inspect the factory thoroughly with respect to raw materials; storage; manufacturing process; controls exercised at intermediate stages of production; and examine the results of incoming inspection and / or test certificates of raw material or bought-out components or sub-assemblies; b) check availability of relevant standards, STI, etc., and examine the various test procedures that are being followed to ensure that these procedures are according to those given in the specification; c) check records of production, laboratory testing, calibration of instruments, wherever necessary, for ascertaining compliance to provisions of relevant STI; d) check if there is any change in the manufacturing machinery and / or test equipment declared in the proformae (CM/PF 305 and 306) and whenever there is a change, a fresh declaration shall be obtained; e) check and report hygienic conditions in the premises, wherever applicable; f) sign records with the date of visit and record observations about any improvement needed in maintaining the records. Any discrepancies observed shall also be indicated and a discrepancy/variation report issued and signatures of representative of the firm obtained (CM/PF 260); g) draw samples of the material with the Standard Mark and test it in the factory for important requirements of the Indian Standard. Test results obtained shall be compared with test results recorded by the licensee. In case of wide difference between the two results, an explanation shall be obtained from laboratory personnel. Another sample with the Standard Mark, preferably of different type/ size/grade/lot/control unit, should be drawn for independent testing. One sample, properly sealed and labeled, shall also be left with licensee as counter sample. The inspector shall also note down the test results of the particular control unit from which sample has been drawn, as recorded by the licensee. The inspector shall invariably ensure that at the time of drawl of the sample whether the particular type/ grade/size/brand/variety of the sample drawn is the one which is included in the standard and for which the licence has been granted; h) check that the varieties/grades/sizes, etc., not included in the scope of the licence are not marked by the licensee; i) Where conformity of raw materials / components is specified, samples of the raw materials / components may also be drawn by rotation during the inspection;

8 j) ensure that the quantity of the sample drawn is adequate for testing of all the requirements for which it is desired to be tested. Where a separate test piece has to be cast along with the product and where a material has to be tested before processing, the inspector has to anticipate the same and draw the required samples; k) collect names and complete postal addresses of the consignees to whom the material with the Standard Mark has been supplied in the recent past; l) check how the material not conforming to the Indian Standard is stored and disposed-off; m) ensure that the Standard Mark is removed from the batches or control units, which, on testing by the inspecting officer, do not conform to the standards; n) check whether the licensee has taken all the actions asked for during the previous inspections. If not, find out the reasons for not doing so and report; o) ensure that the samples drawn during the previous visits and left with the licensee, if any, have been dispatched to the desired laboratory and collect proof of dispatch / deposition thereof; p) discuss any recent failure of samples and corrective actions taken by the licensee and report in the inspection report; q) discuss on manufacturing, testing and other technical problems with the licensees to find solutions; and r) discuss on details of improvements made in management/process/quality control with specific reference to the improvements required on non conformities observed during the inspections and testing of samples and specifically report the same in the inspection report. 15. The inspector should possess and exhibit ethical conduct and professional behavior during inspections; be fair, honest, sincere and discreet; and be open minded, diplomatic, perceptive, versatile, decisive, self reliant and tenacious. The inspector should possess good communication skills and writing ability. He should focus on the inspection and avoid indulging in irrelevant discussions and / or activities. Identification of Inspectors 16. The BIS shall issue a letter of appointment to the Agent. The Agent shall, in turn, provide a certified copy of this letter to each of its inspectors along with a letter of authorization on its letter-head and an identity card. The inspectors of the Agent shall show the above-mentioned documents for identification to the licensees of the BIS before conducting inspection(s) assigned to them. A copy each of the authorization letter and the Identity Card, thus issued by the Agent to each of its inspectors, shall also be submitted by the Agent to the concerned Regional and Branch Office of the BIS for information and records. 17. The Agent shall prepare its own Seal for sealing of the samples to be drawn by its inspectors from the premises of the licensees of the BIS. Record of distribution of such Seals shall be maintained by the Agent and copy thereof provided to the BIS. The impression of the seals shall invariably contain the BIS logo. In addition, the following information shall also be suitably included in the seal: a) The inspector s specifically allotted number by the Agent; and b) Name of the Agent in abbreviated form followed by letter in bracket (C/N/E/W/S) designating the Region where the Agent is providing services to the BIS.

9 18. The inspector shall invariably mark an ink impression of the seal in the test request at the time of drawl of sample so as to facilitate easy identification / traceability. Inspection Related 19. Before being allowed to undertake inspections independently, each of the new inspectors (those who do not possess prior experience of carrying out inspections for the BIS) of Agent shall have to accompany an officer from BIS on at least three visits of different products of which there is large concentration in the Branch Office. 20. The Agent shall collect all relevant information for the inspections for which BIS shall provide all necessary assistance. At the same time, it shall be the responsibility of the Agent to collect all relevant information / documents required for conduct of a fruitful inspection. The Agent, where feasible, shall collect information of up to three licensees in the area of the visit of its inspectors from the allocated work so that in situations of no production, factory found closed, etc., some other inspection from the allocated work can be carried out. 21. Work shall be allotted by the concerned Branch Office of the BIS to the Agent only for the area and discipline for which it has been appointed by the BIS. Normally, schedule of inspections will be given in advance. However, in emergent situations, the Agent may also be called upon to undertake inspections on short notice. 22. The Agent shall ensure to submit the reports of inspections with the concerned Branch Office of the BIS within eight working days from the date of the inspection. In case of non-compliance, the BIS shall deduct half of the charges payable to the Agent for such inspections. 23. Relevant documents such as the proformae for submission of inspection reports, etc.; read-only access to the Certification Marks Management System (CMMS) database for preparation of inspection briefs; and information regarding availability of testing facilities or otherwise with the laboratories of the BIS and BIS recognized outside laboratories along with the occupancy status of the BIS or BIS recognized laboratories will be provided by the concerned Branch Office of the BIS to the Agent. 24. The inspector(s) of the Agent shall carry out inspection as per the Indian Standard for which licence has been granted; the corresponding scheme of testing & Inspection; the relevant provisions of the Operating Manual for Product Certification (OMPC, which is available on website of the BIS, and the BIS Act, 1986 and the Rules & Regulations framed thereunder. 25. The sample(s) drawn by the inspector of the Agent shall be packed, sealed and coded strictly in accordance with the guidelines enshrined in the OMPC of the BIS and test requests shall be issued for the same strictly in accordance with the occupancy status of the laboratories of the BIS, as applicable at that point of time, for the products for which testing facilities are available in the laboratories of the BIS. For other situations, preference shall be given to laboratories which accept the BIS testing charges. The Agent shall also ensure that, to the extent possible, sample is not sent to the same BIS recognized laboratory where it was sent during the last inspection. In case of doubt, the Agent shall consult the concerned Branch Office of the BIS, whose decision shall be final and binding on the Agent. The inspector of the Agent shall also ensure that all relevant parameters of the sample are clearly and unambiguously detailed in the test request.

10 26. The inspectors of the Agent shall invariably collect, where applicable, information and evidence about the deposition of the sample(s) drawn during the previous two inspections for the licence and submit the same in the inspection report. 27. The inspector of the Agent shall strictly maintain the element of surprise while carrying our inspections for the BIS and in no case any advance intimation shall be given to the licensees of the BIS. Any contravention of this condition shall tantamount to unethical conduct by the inspector and / or the Agent. 28. The Agent shall make its inspector(s) available for any clarification on their report(s) of inspection in person at the concerned Branch office of the BIS. 29. After completion of the inspection, it shall be the responsibility of the Agent to ensure that all relevant information regarding inspections carried out is completely entered in the CMMS of the BIS being maintained by the concerned Branch Office of the BIS within eight working days from date of the inspection. In case of non-compliance, the BIS shall deduct half of the charges payable to the Agent for such inspections. 30. It shall be the responsibility of the Agent to contact and inform the concerned Branch Office of the BIS, immediately by fax or through some other means, within the next one working day, in case the performance of the licence has been assessed as unsatisfactory by its inspector and / or any other abnormal situation is observed in the operation of licence. 31. It shall be ensured by the Agent that none of its inspectors enters the premises of the licensees of the BIS for any work after 1500 h. The inspector of the Agent shall invariably submit a time log-sheet with his / her inspection report, clearly indicating the time spent by him / her in carrying out the allotted inspection. 32. The BIS or the licensees of the BIS shall not pay for any expenses on account of travel, boarding, lodging, etc., incurred by the Agent and / or its inspector. The BIS shall not pay any charges other than the agreed charges subject to the terms and conditions laid down in the Agreement. The Agent and / or any of its inspectors shall not accept any favour of any kind, either in cash or in kind (gifts / privileges such as the cost of travel, accommodation, food, etc.). Any violation of this condition shall tantamount to unethical conduct and attract action as envisaged in this Agreement. 33. The Agent shall ensure that every inspection day has been fully utilized by its inspector. If on a particular day, less than four hours work has been done by the inspector of the Agent and more work in the nearby area was available and could have been done, no payment shall be made by the concerned Branch Office of BIS for such an inspection day. Fees and Payment * 34.The inspections of licensees of the BIS under the Product Certification Scheme of the BIS will be allotted by the concerned Branch Office of the BIS. For such inspections, the BIS shall pay to the Agent consolidated charges at the rate of Rs. 3000/-* (rupees three thousand only) per day for visits within 200* km and at the rate of Rs. 4000/-* (rupees four thousand only) per day for the visits beyond 200* km

11 from the location of the Branch Office of the BIS subject to other conditions laid out in this Agreement. The decision of the BIS in this regard shall be final and binding on the Agent and no representation on this account shall be entertained by the BIS. 35. In addition to the above, the Agent shall also be paid Rs. 3000/-* (rupees three thousand only) for one day s visit in a month to the concerned Branch Office of the BIS for studying the files and collection of data / information for undertaking the allocated work. 36. Payment will be released by the concerned Branch Office of the BIS on submission of monthly bills by the Agent. The Branch Office of the BIS shall also ensure timely submission of all related inspection reports by the inspectors of the Agent before release of the payment. Note: The above-mentioned terms and conditions are part of the Agreement as indicated in Clause 12 of the Deed of Agreement between the BIS and the Agent and any non-compliance thereof shall tantamount to the breach of the Agreement. * Revision of rates is under consideration