BOMチェック化学物質デクラレーション(情報伝達)ウェブデータを使用するサプライヤーに関する会員規則

Version 5.0, May 2018

Whereas:

1.1 thinkstep has developed a substances declarations web database (www.bomcheck.net) which enables Members to upload their substances declaration data to one location for all participating manufacturers to access.

1.2 The Member wishes to access the database and upload their substances declarations data.

1.3 A key feature of the database is the use of electronic signatures.  A Member who wishes to join the Database must appoint an Authorised Individual with the authority to access the Database and upload Data on behalf of the Member.  When a company becomes a Member of the Database, thinkstep will check the identity of the Member and validate the e-mail address of the Authorised Individual and will establish an electronic signature for the Authorised Individual.  This electronic signature will be attached to all Data that the Authorised Individual will upload to the Database on behalf of the Member.  This is a key element in ensuring that the Database complies with Title 21 CFR Part 11 of the US Code of Federal Regulations, which defines criteria under which the FDA accept:

electronic records and electronic signatures as trustworthy, reliable and equivalent to paper records and handwritten signatures executed on paper.

These Member Rules set out the terms and conditions for a company to become a Member of the Database.

1 Interpretation

1.1 In these Member Rules, unless the context requires otherwise:

"Authorised Individual" means the Member employee who the Member appoints with the authority to access the Database and upload Data on behalf of the Member;

"Data" means the Member’s substance declarations data that the Member wishes to make available to participating manufacturers;

"Database" means the thinkstep substances declarations web database located at www.bomcheck.net ;

"thinkstep" means thinkstep compliance ltd, a company registered in England and Wales with number 9701701 whose registered office is at 73 Watling Street, London, EC4M 9BJ

"Member" means a company who joins the Database subject to the terms and conditions in these Member Rules and who has paid the annual subscription fee by credit card on www.bomcheck.net or by wire transfer or by invoice

"Membership" means a Member's authorized participation in the Database.

2 Admission of Members

2.1 The Member will appoint an Authorised Individual who will have the authority to access the Database and upload Data on behalf of the Member.  This appointment will be confirmed on the Member’s application form.

2.2 The Authorised Individual will complete an on-line application form on www.bomcheck.net for Membership of the Database.  The application form requires the Authorised Individual to confirm that the Member has read, understood and agrees to abide by all of these Member Rules and that the Authorised Individual has read, understood and freely consents to the use and transfer of Personal Data in accordance with the Rules.  A copy of these Member Rules is posted on www.bomcheck.net.

2.3 The application form requires the Authorised Individual to confirm that pursuant to Section 11.100 of Title 21 of the Code of Federal Regulations the Member intends that all electronic signatures provided by the Authorised Individual are the legally binding equivalent of traditional handwritten signatures.   

2.4 The Member acknowledges that it will be entitled to the benefits of Membership and will be bound by these Member Rules from the date of the first occasion when the Member pays the subscription fee by credit card on www.bomcheck.net.

2.5 When the Authorised Individual completes an application to join the Database a document containing the Member’s application details is generated in pdf format.  The Authorised Individual will sign a paper copy of this pdf document and return it by fax or e-mail to thinkstep within 14 days.  thinkstep reserves the right to suspend or terminate a Membership if the Member’s signed application document is not received at thinkstep's offices within 14 days of the first occasion when the Member pays the annual subscription fee by credit card on www.bomcheck.net 

2.6 Pursuant to Section 11.100 of Title 21 of the Code of Federal Regulations, the Member authorises thinkstep to submit a paper copy of the application form document, signed by the Authorised Individual, to the US FDA, Office of Regional Operations (HFC-100), 5600 Fishers Lane, Rockville, MD 20857.

2.7 All applicants for Membership will include a valid D-U-N-S® number on their application form.  A D-U-N-S® number is a unique nine-digit identification number which provides unique identifiers of single business entities, while linking corporate family structures together.  The D-U-N-S® number system is administered by Dun & Bradstreet and is available at www.dnb.com.

2.8 thinkstep will check the identity of the Member by verifying the Member’s D-U-N-S® number against the company name and address details.  thinkstep reserves the right to suspend or terminate a Membership if thinkstep finds, or has reasonable cause to suspect, that any details on the Members application document are inaccurate or incomplete.  

2.9 The Authorised Individual will have a unique company e-mail address.  Applications for Membership which include a generic e-mail addresses (e.g. info@supplier.com) will not be accepted by thinkstep.  thinkstep will validate the e-mail address of the Authorised Individual and will establish an electronic signature for the Authorised Individual.  This electronic signature will be attached to all Data that the Authorised Individual will upload to the Database on behalf of the Member.

3 Use of Database

3.1 In consideration of, and subject to, the Member complying with its obligations set out in these Member Rules, thinkstep hereby grants to the Member a single-user, non-exclusive, non-transferable licence to access the Database and upload Data to the Database during the term in accordance with these Member Rules.

3.2 thinkstep will provide the Authorised Individual with a login (which will be the Authorised Individual’s business e-mail address) and password to enable the Authorised Individual to access the Database and upload the Member’s Data to the Database.  The Authorised Individual will change their password at the end of each quarter.

3.3 thinkstep will use reasonable endeavours to provide access to the Database on a continuous basis, subject to the terms of these Member Rules.  If the Database becomes unavailable or is inoperative, in full or in part for any reason, thinkstep will use reasonable endeavours to rectify faults or problems or restore the Database to full operational capacity as soon as reasonably practicable.  The Member acknowledges that the Database may be unavailable during such times.

3.4 The Database was developed under the consideration of the highest appropriate technical information security principles available on the market. For the purpose of improving security, thinkstep reserves all rights to further update the Database security in line with appropriate standards of information technology. thinkstep shall notify the Member of any significant reduction in services to improve the system’s security within a reasonable period of time.

3.5The Member acknowledges that use of the Database by manufacturers is at the manufacturers' option and that in selecting a supplier, a manufacturer exercises its own skill and judgement. As a consequence, thinkstep makes no warranties (express or implied) as to the likelihood of any manufacturer procuring products from the Member.

4 Member obligations and restrictions

4.1 The Member undertakes to take all necessary steps to ensure that the Authorised Individual does not divulge their password to any other person or allow any other person access to the Database.  If the Member becomes aware or suspects that the Authorised Individual’s password has been disclosed to any other person, or unauthorised access has taken place, the Member will report this immediately to thinkstep so that the password can be changed and/or another Member employee appointed as the Authorised Individual.

4.2 The Member accepts and acknowledges that any failure by the Member to comply with Member Rule 4.1 will result in suspension of the Members access to the Database by thinkstep and the Member will not regain access to the Database, unless it has been authorised to do so by thinkstep.

4.3 The Member undertakes to ensure that the Authorised Individual will change their password at the end of each quarter.

4.4 The Member will maintain the appointment of an individual Member employee as the Authorised Individual at all times.  The Member will inform thinkstep immediately if there is a need to appoint another employee as the Authorised Individual for any reason.

4.5The Member acknowledges that it is entirely responsible for all access to the Database that is facilitated by the Authorised Individual’s login and password (whether such access is with or without the Member’s consent). Unless provided for otherwise below, thinkstep will not be liable for any loss that the Member may incur as a result of someone else using the Authorised Individual’s login and password, either with or without the Member’s knowledge. thinkstep will, within the limitations set out in Member Rule 10, be liable if the unauthorised use of the Authorised Individual’s login and password is due to thinkstep’s intentional or grossly negligent conduct.

4.6 In the event of negligence or wilful misconduct of the Member, the Member may be held liable for losses incurred by thinkstep due to someone else using the Authorised Individual’s login and password. For the avoidance of doubt, the Member will not be liable for any loss of Data caused by any third party outside the Member’s sphere and not attributable to the Member.

4.7 For the avoidance of doubt, thinkstep will not be liable under any circumstances for any unauthorised access to the Data via the Database in circumstances where the Member had not maintained the appointment of an individual Member employee as the Authorised Individual at all times, or an Authorised Individual had disclosed the password to any other person or allowed access to any other person.

5 Data Protection and Accuracy

5.1 The Member warrants that it has obtained and will maintain all consents, authorisations, licences and approvals necessary to allow:

5.1.1 the uploading of the Data to the Database;

5.1.2 thinkstep to distribute the Data via the Database; and

5.1.3 manufacturers to use the Data.

5.2 The Member will use all reasonable endeavours to ensure that the Data uploaded to the Database is accurate, current, and complete and is supplied in a timely manner in accordance with requests from the Database.

5.3 The Member will promptly notify thinkstep if it has, or has reason to believe that it has,  contributed inaccurate, incomplete or misleading Data, and will then upload the corrected Data onto the Database as soon as is reasonably practicable.

5.4 In the event that any error in the Data is notified to the Member by thinkstep or a third party, the Member will correct such error as soon as is reasonably practical.

5.5 thinkstep is responsible for the system functionality, but has no responsibility for the Data content entered by the Member. In any case thinkstep can provide traceability of Data origin through identification of the Data providing Member and the Data input / modification date.

5.6 Under consideration of Member Rule 4.5, thinkstep will take adequate measures to ensure that the Data that the Member provides into the Database can only be completed, changed or in any other way modified by the Member.

5.7 thinkstep will not use any other means to distribute the Member’s Data except via the Database. thinkstep will not provide the Member’s Data to any party who has not signed a Manufacturer’s Agreement to use the Database. thinkstep will not in any way sell, transfer, (sub-)license or otherwise commercially exploit the Data provided into the Database.

5.8 thinkstep will treat any Data in the Database as strictly confidential and will not access the Member’s account unless instructed to do so by the Member. Exception to this is system statistics calculation such as e.g. number of Regulatory Compliance Declarations, number of Full Materials Declarations etc. Furthermore thinkstep’s internal access to Data is restricted to specially selected persons that may need access under supervision of security personnel for system maintenance purposes.

5.9 Without prejudice to the confidentiality restrictions in Member Rule 5.8, thinkstep is entitled to review any Data provided into the Database in order to check whether these Data have been provided in compliance to these Member Rules; thinkstep will only review such Data if there are indications that a Member does not comply with these Member Rules.

6 Term and Termination of Membership

6.1 Membership will commence on the date of the first occasion when the Member pays the annual subscription fee by credit card on www.bomcheck.net and will continue for an initial period of twelve (12) months ("Initial Period") unless terminated earlier in accordance with these Member Rules. Following the Initial Period, either thinkstep or the Member may terminate the Membership for convenience on three (3) months' written notice.

6.2 thinkstep can terminate a Membership immediately by notice in writing if:

6.2.1 the Member’s signed application document is not received at thinkstep’s offices within 14 days of the first occasion when the Member pays the annual subscription fee by credit card on www.bomcheck.net;

6.2.2 thinkstep finds, or has reasonable cause to suspect, that any details on the Member’s application document are inaccurate or incomplete;

6.2.3 the Member fails to make payments by credit card on www.bomcheck.net within 14 days of the due date;

6.2.4 the Member commits a material breach of any of its obligations under these Member Rules which is incapable of remedy;

6.2.5 the Member is in material breach or continuing breach of any of its obligations under these Member Rules and fails to remedy the breach (if capable of remedy) within a period of 14 days after receiving written notice from thinkstep;

6.2.6 the Member becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the Member’s assets or property; or the Member enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent; or any similar event occurs in any other relevant jurisdiction.

6.3 Upon termination of a Membership in accordance with Member Rule 6, thinkstep will disable the Member’s login and password and the Member will immediately cease accessing and using the Database.

6.4 Any Member will, upon ceasing to be a Member of the Database, forfeit all rights to any claim to a refund of the annual subscription fee.

6.5 thinkstep will not be liable for any loss (including indirect or consequential), damage, delay, loss of market, costs or expenses of whatsoever nature or kind and howsoever sustained or occasioned by the Member by virtue of the termination of their Membership under Member Rule 6.

6.6 Termination of a Membership will be without prejudice to the accrued rights of thinkstep and the Member and will not affect any rights or liabilities of thinkstep or, subject to Member Rule 6.4, the Member existing prior to the date of termination.

6.7 Any provision of these Member Rules which expressly or by implication is intended to come into force on or after termination of a Membership will remain in full force and effect notwithstanding the termination.

7 Financial Matters

7.1 The Member will pay the annual subscription fee at the rates published by thinkstep from time to time on www.bomcheck.net.

7.2 All annual subscription fees and other sums payable under these Member Rules by Members to thinkstep will be paid by credit card on www.bomcheck.net or by wire transfer using Bank details supplied by thinkstep or by invoice.

7.3 All sums quoted or charged are exclusive of Value Added Tax ("VAT").  The Member will be responsible for paying VAT.

8 Warranties

8.1 thinkstep and the Member warrant to each other that:

8.1.1 it has full capacity and authority to perform its obligations pursuant to these Member Rules;

8.1.2 it will discharge its obligations under these Member Rules with all due skill, care, and diligence and in accordance with its own established internal procedures; and

8.1.3 it has obtained and will keep in force all necessary consents, licences and permissions to enable it to perform its obligations pursuant to these Member Rules.

9 Intellectual Property

9.1 The Member acknowledges that thinkstep has spent and continues to spend considerable time and resources on the selection and arrangement of the Database as an original intellectual creation.  Accordingly, thinkstep owns the copyright, database rights and all other intellectual property rights in the selection and arrangement of the Database and in the electronic materials necessary for its operation (without prejudice to the rights of the various suppliers in the Database).

9.2 The Member acknowledges that the intellectual property rights subsisting in or used in connection with the Database (including the manner in which it is presented or appears) and all information, documentation and manuals relating thereto are (unless another owner is specified therein) the property of thinkstep or such other third party as the case may be (the "Owner")  and the Member will not during or at any time after the expiry of their Membership in any way question or dispute ownership by thinkstep or the Owner, as the case may be, of any such rights.

9.3 The Member will not during or after the termination of its Membership abuse or permit the abuse of such thinkstep or Owner intellectual property rights nor adopt any trade mark, trade name or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by thinkstep.

9.4 Any trademarks or logos (the “Trademarks”) displayed on the Database are either the property of, or used with permission by thinkstep.  The Member acknowledges that any Trademarks displayed on the Database may not be used without the written permission of thinkstep or such third party that may own the Trademarks.

10 Limitation of Liability

10.1 Subject to Member Rule 10.3, the total aggregate liability of thinkstep to the Member, and vice versa, arising in connection with the performance of these Member Rules will not exceed one million euros (€1,000,000) in any twelve (12) month period.  Notwithstanding the foregoing, thinkstep will not be liable to the Member, and vice versa, for loss of profits, business, contracts or for any indirect or consequential loss caused in any way by any act or omission committed in connection with these Member Rules (whether arising from negligence, breach of contract, statutory duty or otherwise).

10.2 Nothing in these Member Rules is intended and nor will it be construed as an attempt by either thinkstep or the Member to exclude or limit its liability for any liability which cannot be excluded or limited under applicable law, including without limitation its liability for death or personal injury caused by its negligence or for its fraudulent misrepresentation.

10.3 The Member will at all times during and after the term of its Membership, on written demand indemnify thinkstep and keep thinkstep indemnified against all losses, costs, damages, expenses and other liabilities (including legal fees) incurred by thinkstep arising from any breach by the Member of Member Rule 4.1 and Member Rule 9.

11 No Partnership

11.1 Nothing in these Member Rules is intended to or will operate to create a partnership or joint venture of any kind between thinkstep and the Member, or to authorise any one to act as agent for the other.  Neither thinkstep nor the Member will have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

12 Antitrust Guidelines

12.1 thinkstep and the Member acknowledge that industry forums which are designed to share information can give rise to “Antitrust risk”, in particular in relation to allegations of collusion by participants in the same market.  Accordingly, thinkstep and the Member agree to comply with the Antitrust Guidelines contained in Schedule 1. 

13 Notices

13.1 Any notice to be given under these Member Rules by either thinkstep or the Member will be in writing and signed by or on behalf of the party giving it and will be served by delivering it personally or by sending it by pre-paid recorded delivery or registered post or by fax to the address and for the attention of the relevant party.  Any such notice will be deemed to have been received:

  1. if delivered personally, at the time of delivery;
  2. in the case of pre-paid recorded delivery or registered post, forty eight (48) hours from the date of posting; and
  3. in the case of fax, at the time of transmission.

13.2 For the avoidance of doubt, operational communications may be by e-mail, but any notice of failure, breach or termination will be subject to the provisions of Member Rule 14.1.

14 Assignment

14.1The Membership and all the rights, benefits and obligations of the Member may not be assigned, transferred or novated without the prior written consent of thinkstep.

15 Severability

15.1 If any of the terms in these Member Rules are judged to be illegal or unenforceable, that term will, to that extent, be deemed not to form part of the Member Rules and the enforceability of the remainder will not be affected.

16 Force Majeure

16.1 Neither thinkstep nor the Member will be liable to the other party for any delay in or any failure to perform its obligations (other than payment of money) as a result of any act of god, war, terrorism, riot, or civil commotion but only to the extent that the same was not caused by the party seeking relief.  If such delay or failure continues for at least sixty (60) days, either thinkstep or the Member will be entitled to terminate the Membership by notice in writing

17 Entire Agreement

17.1 These Member Rules constitute the entire agreement between thinkstep and the Member and supersede all prior agreements and understandings between thinkstep and the Member in connection with the subject matter hereof. 

18 No Waiver

18.1 No forbearance or delay by either thinkstep or the Member in enforcing its respective rights will prejudice or restrict the rights of thinkstep or the Member, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

19 Applicable Law and Jurisdiction

19.1 These Member Rules and all rights and obligations of the Member and thinkstep hereto will be governed and construed in accordance with the laws of England and Wales and the Member and thinkstep hereby submit to the non-exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of or relating to these Member Rules and their implementation or effect.

SCHEDULE 1:  Antitrust Guidelines

Industry forums which are designed to share information can give rise to breaches of competition law, in particular in relation to allegations of collusion by participants in the same market.  A violation of the competition laws (also known as antitrust laws) can have serious consequences for thinkstep and for companies who become members of BOMcheck.  Accordingly, thinkstep and all companies (both manufacturers and suppliers) who become members of BOMcheck (collectively “Members”) agree to comply with the following guidelines in connection with participation in BOMcheck.  Prior to any and all meetings associated with BOMcheck, or subgroups thereof, thinkstep and the Members in that meeting shall be reminded of these guidelines and their obligation of compliance herewith.

  1. BOMcheck and its committees or activities shall not be used for the purpose of bringing about or attempting to bring about any understanding or agreement, written or oral, formal or informal, express or implied, between and among competitors with regard to their prices, terms or conditions of sale, distribution, volume of production, territories, customers, or credit terms.
  2. In connection with participation in BOMcheck, there shall be no discussion, communication, agreement or disclosure among Members that are actual or potential competitors, regarding their prices, discounts or terms or conditions of sale or licensing of products or services, pricing methods, profits, profit margins or cost data, production plans, market shares, sales territories or markets, allocation of territories or customers, or any limitation on the timing, cost or volume of their research, production or sales.
  3. Each Member of BOMcheck is obligated and expected to exercise its independent business judgment in pricing its services or products, dealing with its customers and suppliers, and choosing the markets in which it will compete.
  4. Members of BOMcheck, in connection with their participation in BOMcheck, shall not enter into any agreement or understanding among themselves to refrain, or to encourage others to refrain, from purchasing any raw materials, product, equipment, services or other supplies from any supplier or vendor or from dealing with any supplier or vendor.  
  5. Members of BOMcheck, in connection with their participation in BOMcheck, shall not attempt to prevent any person from gaining access to any market or customer for goods and services, or attempt to prevent any person from obtaining a supply of goods or services or otherwise purchasing goods or services freely in the market.  
  6. Membership of BOMcheck is open to all companies who are manufacturers or suppliers in the electronics industry.  No applicant for Membership of BOMcheck by a manufacturer or supplier in the electronics industry shall be denied Membership for any anti-competitive purpose. No Member shall be excluded from any committee or working group of BOMcheck for an anti-competitive reason.  
  7. The substance declaration information requested by BOMcheck shall at all times reflect current and reasonably foreseeable regulatory requirements and industry scientific information.  No substance declaration information requested by BOMcheck shall be based upon any effort or purpose to unreasonably reduce or eliminate competition in the sale, supply and furnishing of products and services.  
  8. In conducting any meeting of the steering group, the Members or any committee, the chair or secretary of each such meeting shall prepare and follow a formal agenda. Minutes of all such meetings shall be maintained, accurately reflecting the subjects discussed and action taken at such meetings.
  9. During the course of any activities in relation to BOMcheck, Members must refrain from disclosing information to any other Member that is not reasonably related to the legitimate purposes of such activities.

SCHEDULE 2: Data Protection Information and Consent for Authorised Individuals

Background

A Member who wishes to join the Database must appoint an Authorised Individual with the authority to access the Database and upload Data on behalf of the Member. BOMcheck holds this information as personal data on the Authorised Individual (“the Personal Data”).

Notice of the purposes of the processing

The Personal Data will be used and disclosed for the contact purposes as set out under the Suppliers’ Member Rules and the Manufacturers’ Agreements and for the legitimate business purposes of BOMcheck and the Suppliers and Manufacturers which use the Database, unless BOMcheck is subject to a legal requirement to use or disclose it for another purpose.

As part of the use of the Database Manufacturers may occasionally choose to download some of the Authorised Individual contact details in order to make contact by e-mail for the purposes of the Database. This may result in the transfer of the contact details of the Authorised Individuals to countries or territories outside the European Union which do not have equivalent laws to the EU General Data Protection Regulation.

Safeguards

Such transfers should only be occasional and will be subject to the restrictions on the use and disclosure of the Personal Data of the Authorised Individuals in the Manufacturers’ Agreements and Suppliers’ Member Rules and to the security standards applied to the Database.

For further information on BOMcheck’s data protection policies and individual rights you should contact aturnbull@bomcheck.net.