TERMS OF AGREEMENT
ACCEPTANCE AND MODIFICATIONS
This document contains all terms and conditions of the parties’ agreement concerning the services described on page 1, and can be accepted only upon the provisions expressed herein, and may not be modified, added to, amended, superceded, or waived except in writing by TRACE ANALYTICAL LABORATORIES’, INC., (TRACE) duly authorized representative. Client may accept this document by acknowledging or confirming it, or by accepting any performance of this agreement by TRACE, partial or complete, or by any other means manifesting assent to be bound. TRACE hereby rejects any additional, conflicting or differing conditions, whether or not material, contained in any acknowledgment or confirmation of this document or in any purchase or work order issued by or communicated from Client, and no subsequent conduct by TRACE or prior course of dealing shall be deemed to be acceptance thereof. Reference by TRACE to any purchase or work order number supplied by Client shall be for accounting identification purposes only. This document shall be binding upon the successors and assigns of the parties hereto.
All services shall be performed in accordance with specifications and with TRACE’S Quality Assurance/Quality Control Plan (“QA/QC Plan”) in effect at the time the services are performed. TRACE reserves the right to deviate from standard methodologies where this, in TRACE’S sole discretion, is necessary or advisable.
TRACE represents that its services shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other professionals providing like services under similar circumstances except as set out herein. NO OTHER REPRESENTATIONS TO CLIENT, EXPRESS OR IMPLIED, AND NO WARRANTY OF RESULTS ARE INCLUDED OR INTENDED IN THE PURCHASE ORDER OR IN ANY REPORT, OPINION OR DOCUMENT PREPARED BY TRACE IN CONNECTION HEREWITH OR OTHERWISE.
LIMITATION OF LIABILITY
TRACE will use its best efforts to comply with storage, processing and analytical holding time limits required by government regulations or by the Client. Neither such time limits nor analytical turnaround times are guaranteed. Samples received past hold time will not be run unless specifically agreed to in writing between TRACE and Client.
Unless otherwise agreed to in writing by TRACE, TRACE’S maximum liability to Client, its employees, agents, subcontractors and to all other persons arising out of or related to the performance of the work agreed upon by the parties for any reason and all reasons, whether in contract, under any claim in warranty, in tort, or otherwise shall be limited to TRACE promptly re-performing deficient analytical work at its own expense or at TRACE’S option, refunding the money paid for such work. Any reanalysis generating results consistent with original analysis shall be at Client’s expense. The foregoing shall be Client’s sole remedy. In no event shall TRACE be liable for incidental or consequential damages, including, without limitation, business interruption, loss of use, or loss of profits incurred by Client, its subsidiaries, affiliates, or successors arising out of or related to the performance of services by TRACE, its affiliates, successors or subcontractors, regardless of whether such claim is based upon any of the above stated reasons or otherwise.
TRACE shall be paid in accordance with prices as set out in TRACE’S Schedule of Charges in effect when the analyses are performed unless otherwise agreed by the parties in writing. The current Schedule of Charges is subject to change without notice.
TRACE shall submit invoices to Client upon completion of each job, or as agreed upon by the parties in writing. Unless otherwise agreed to in writing invoices shall be due and payable within thirty (30) days after the date of invoicing.
Client shall be obligated to pay TRACE service charges on any overdue balance at an annual rate of eighteen percent (18%) or the maximum legal rate, whichever is less, until paid in full. Payments shall first be applied to accrued interest, if any, and then to the overdue balance.
TRACE reserves the right to cease all work hereunder in the event the Client does not timely pay its invoices or if, at TRACE’S sole discretion, the Client’s financial condition or other circumstances do not warrant the continuing performance of services on terms contained herein.
In addition to service charges provided herein, in the event it is necessary for TRACE to refer this account for collection, Client shall be responsible for all costs of collection including, but not limited to, reasonable attorney fees incurred by TRACE.
Unless otherwise agreed to in writing, if any suit, proceeding, claim or action except one arising from the sole negligence of TRACE, whether civil, criminal, administrative or investigative of any nature whatsoever, is threatened or brought against TRACE by any third party including, without limitation, any insurer asserting subrogation rights of Client, any governmental or administrative body, or any private person or entity, arising out of or relating to the performance of services by TRACE, or any of its affiliates, successors or subcontractors. Client shall defend, indemnify and hold harmless TRACE, its officers, directors, agents, employees, and subcontractors from and against any expenses (including reasonable attorney’s fees), damages, judgments, fines or amounts paid in settlement.
TRACE shall not be responsible for damages or delays in performance caused by but not limited to, unusual weather conditions, fires, floods, epidemics, war, riots, strikes, lockouts, governmental action or failure to act, industrial disturbances, unanticipated site conditions, inability with reasonable diligence to supply personnel, equipment, or material to the project, delays or damage during shipment or any other condition beyond TRACE’S control. In the event of any of the foregoing circumstances, TRACE’S time for completion of this agreement shall be extended accordingly. Any such delays shall in no event excuse Client from paying amounts owed for services performed prior to the occurrence of the delay.
SUSPENSION OF WORK
In the event all or any portion of the work prepared or partially prepared by TRACE be suspended, abandoned or terminated, the Client shall pay TRACE the reasonable value of all work performed prior to cessation of work. In determining reasonable value under this paragraph, the contract price shall be deemed reasonable.
One or more waivers of any term, condition or covenant by TRACE shall not be construed by the Client as a waiver of a subsequent breach of the same or of any other term, condition or covenant.
In the event any provision of this agreement shall be held to be invalid or unenforceable, the other provisions of this agreement shall be valid and binding on the parties hereto.
RETAINMENT OF SAMPLES
All samples received by TRACE in connection with this agreement may be disposed of thirty (30) days after receipt by TRACE unless otherwise agreed in writing. TRACE reserves the right to return samples to Client and proper disposal shall be the responsibility of Client.
Client shall provide TRACE with all such information as shall be required to enable TRACE to perform its services in a safe manner. Any hazardous characteristics shall be clearly identified by submitting associated hazard documentation. All shipments of samples to TRACE should comply with federal regulations, including but not limited to the U.S. DOT.
TRACE will release results only to the Client and to such agents as the Client has designated by written notification to TRACE.