Terms & Conditions

The following General Terms & Conditions are based on guidelines set forth by the International Federation of Inspection Agencies (IFIA).

Unless otherwise specifically agreed in writing, Maloney Commodity Services (hereinafter called “the Company”) undertakes services in accordance with these general terms and conditions (hereinafter called “General Terms and Conditions”) and accordingly all offers or tenders of service are made subject to these General Terms and Conditions. All resulting contracts, agreements or other arrangements will in all respects be governed by these General Terms and Conditions, except only to the extent that the law of the place where such arrangements or contracts are made or carried out shall preclude any of the General Terms and Conditions and in such case such local law shall prevail wherever, but only to the extent that, it is at variance with these General Terms and Conditions.

The Company acts for the persons or bodies from whom the instructions to act have originated (hereinafter called “the Client”). No other party is entitled to give instructions, particularly on the scope of inspection or delivery of report or certificate, unless expressly so authorized by the Client in writing and agreed to by the Company in writing.

The Company will provide services in accordance with:

  • the Client’s specific instructions as confirmed by the Company;
  • any relevant trade custom, usage or practice;
  • such methods as the Company shall consider appropriate on technical, operational and/or financial grounds.

The Client will:

  • ensure that instructions to the Company and sufficient information are given in due time to enable the required services to be performed effectively;
  • procure all necessary access for the Company’s representatives to enable the required services to be performed effectively;
  • supply, if required, any special equipment and personnel necessary for the performance of the required services;
  • ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services and will not rely, in this respect, on the Company’s advice whether requested or not;
  • take all necessary steps to eliminate or remedy any obstruction to or interruptions in the performance of the required services;
  • inform the Company in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing including, for example, presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons;
  • fully exercise all its rights and discharge all its liabilities under any related contract whether or not a report or certificate has been issued by the Company failing which the Company shall be under no obligation to the Client.

The information contained in any Report or Certificate is the result of inspection services or weighing and sampling tests performed in accordance with: (1) the written instructions of the Client, (2) generally accepted practices of the trade, and/or (3) such methods as the Company shall consider appropriate on technical, operational and/or financial grounds.

Reports or Certificates issued by the Company are representative of the facts as observed and recorded by the Company at the time of its inspection only and as limited by the instructions received from the Client. The Company has no obligation to report, inform, or in any way communicate to the Client any circumstances or events that are not within the scope of specific, written instructions received by the Company.

All enquiries and orders for the supply of services must be accompanied by sufficient information specifications and instructions to enable the Company to evaluate and/or perform the services required.

Documents reflecting engagements contracted between the Client and third parties, or third parties’ documents, such as copies of contracts of sale, letters of credit, bills of lading, etc., are (if received by the Company) considered to be for information only, and will not constitute a basis or justification for extending or restricting the mission or obligations accepted by the Company.

Subject to the Client’s instructions as accepted by the Company, the Company will issue reports and certificates of inspection which reflect statements of opinion made with due care within the limitation of instructions received but the Company is under no obligation to refer to or report upon any facts or circumstances which are outside the specific instructions received.

Reports or certificates issued following testing or analysis of samples contain the Company’s specific opinion on those samples only but do not express any opinion upon the bulk from which the samples were drawn. If an opinion on the bulk is requested special arrangements must be made in advance with the Company for the inspection and sampling of the bulk.

The Company shall be entitled at its discretion to delegate the performance of the whole or any part of the services contracted for with the Client to any agent or subcontractor.

If the requirements of the Client necessitate the analysis of samples by the Client’s or by any third party’s laboratory, the Company will deliver to the Client the result of the analysis but without responsibility for its accuracy. Likewise, where the Company is only able to witness an analysis by the Client’s or by any third party’s laboratory, the Company will provide confirmation that the correct sample has been analyzed, but will not otherwise be responsible for the accuracy of any analysis or results of any analysis.

The Company is neither an insurer nor a guarantor and disclaims any and all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.

The Company, including any of its employees and subcontractors, shall not be liable to the Client or any third-party for any actions taken based on any Reports or Certificates issued by the Company. The Company, including any of its employees and subcontractors, also shall not be liable to the Client or any third-party for any findings, results, or opinions that arise from any incomplete, misleading, or false information provided to the Company.

Under no circumstances shall the Company be liable for any result or non-performance of services that was influenced by any of the following: (1) an event outside the Company’s control, (2) failure on behalf of the Client to meet any of its obligations, or (3) failure on behalf of the Client to follow any of the Company’s instructions.

Neither the Company, nor any of its shareholders, members, officers, directors, employees, agents, representatives, or subcontractors shall be liable for any direct or indirect loss, damage or expense of any nature resulting from or arising out of the services for which the Client retained the Company. The sole and exclusive remedy for the Company’s breach of its obligations, and the total liability of the Company for any loss or damage claimed, either directly or indirectly, in contract, tort or otherwise, including, but not limited to, breach of contract, breach of warranty, negligence, gross negligence, strict liability, negligent or intentional misrepresentation or omission, arising out of or in connection with the provision of services shall be either ten (10) times the fee paid or payable for the specific item of service giving rise to the claimed loss or damage, or US $25,000 (or its equivalent in local currency), whichever is less.

Every shareholder, member, director, officer, employee, agent or subcontractor of the Company shall have the benefit of the limitation of compensation or damages and the indemnity contained in these General Terms and Conditions and so far as relates to such limitations any contract entered into by the Company is entered into not only on its own behalf but also as agent and trustee for every such person as aforesaid.

The Client shall guarantee, hold harmless and indemnify the Company and its shareholders, members, directors, officers, employees, agents or subcontractors against all claims made by any third party for loss, damage or expense of whatsoever nature, including any and all legal related costs, including attorneys’ fees, and howsoever arising, relating to the performance, purported performance or non-performance of any services.

The limitation of financial liability of the Company set forth in Condition 16 herein may be increased upon written request of the Client received by the Company in advance of the performance of the services to be rendered. The amount of the additional fee and increase in the limitation of financial liability must be agreed, in writing by the Client and the Company and the additional fee must be paid for by the Client in advance of the services to be rendered or the agreement to increase the amount of potential financial liability will be null and void and of no force or effect.

In the event that the Client becomes aware of an actual or potential claim or potential loss arising out of or relating to the services rendered by the Company for the Client, the Client must give written notice of said potential or actual claim or loss to the Company within 45 days of discovery of the facts relating to such potential or actual claim or loss.

The sole and exclusive forum for all disputes between Client and the Company shall be by binding arbitration in the City and State of New York in accordance with the Arbitration Rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Should it be necessary or convenient for Client or the Company to commence court proceedings in connection with or in furtherance of the arbitration proceedings, Client and the Company each consent to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York or the United States District Court for the Southern District of New York. Client and the Company each irrevocably submit to the exclusive jurisdiction of either of the aforesaid courts for the purpose of any action or proceeding and irrevocably agree to be bound by any judgment rendered by any such court with respect to any such action or proceeding.

The validity, construction and enforcement of these General Terms and Conditions, and the interpretation of the rights and duties of the Client and the Company shall be governed by and interpreted in accordance with the laws of the State of New York.

The General Terms and Condition set forth herein constitute the entire understanding of the Client and the Company with regard to the services to be performed by the Company for the Client. No modification, amendment, supplement to, or waiver of these General Terms and Conditions shall be binding upon the Client or the Company unless it is in writing and duly signed by all parties to be charged therewith. In the case of the Company, such writings shall not be binding unless they are duly signed by an authorized agent of the Company.