1. APPLICABILITY. These Terms and Conditions apply to all quotations, proposals, and other agreements between the Customer identified on the face of this Analysis Request Form ("Request") and Qualimax, L.L.C. and its affiliates and subsidiaries (hereinafter collectively referred to as "Qualimax"), with respect to the Sample described on such Request ("Sample").
2. ACCEPTANCE. The Customer's signature hereto, submission of this Request, or acceptance of delivery of the completed analysis of the Sample ("Final Analysis") after receipt hereof shall constitute acceptance of these Terms and Conditions. This offer is entire and not severable, is made subject to the conditions and provisions set forth on both sides hereof, and will expire unless accepted within ten (10) days from date hereof, unless such acceptance date is extended by Qualimax or the Final Analysis is delivered to the Customer. Qualimax will not recognize any separate analysis request form unless approved in writing by Qualimax. NO MODIFICATION OF THIS AGREEMENT SHALL BE EFFECTED WITHOUT QUALIMAX'S ACKNOWLEDGMENT OR ACCEPTANCE OF CUSTOMER'S REQUEST CONTAINING TERMS OR CONDITIONS AT VARIANCE WITH THOSE SET FORTH HEREIN, THE PROVISIONS OF THIS INSTRUMENT BEING CONTROLLING.
3. CONFIDENTIALITY. The Final Analysis and the Request information submitted herewith are considered confidential. Each party shall treat as confidential all information obtained from the other pursuant in accordance with the Request to which is marked "confidential" or the equivalent or has the necessary quality of confidentiality about it and shall not divulge such information to any persons (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Request, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. The foregoing obligations as to confidentiality shall survive any termination of the Request. Qualimax, at its sole discretion, may provide any and all information set forth on the face of this Request or in the Final Analysis, to the police or other investigating agencies to assist them in the investigation of any suspected violations of law, or to Qualimax's attorneys in the event of a violation or breach these terms of this Agreement. Excerpting material from this Request or the Final Analysis, or altering the information in the Final Analysis in any way, is strictly prohibited. Any use of Qualimax's name, initials, trademarks, logos and service marks in print or broadcast advertising is strictly prohibited, unless approved in writing by Qualimax.
4. SAMPLE SUBMISSION AND DELIVERY. Samples shall be submitted to Qualimax's facilities by personal delivery or use of a common carrier at which time risk of damage, loss and title shall be passed to Customer ("Delivery"). The projected Final Analysis delivery date is set forth on the face of this Request ("Delivery Due Date"). In calculating Delivery Due Date, the day Sample is received by Qualimax is considered as Day zero (0). Rush Testing is offered contingent upon pre-notification and approval of Qualimax and a surcharge of 100% of the Sample testing fee ("Testing Fee") will be added to the invoice for each Final Analysis completed in five working days or less.
(a) Sample may only be submitted to Qualimax in connection with this Request and through the terms herein. Customer must include all requested information contained in the Request hereof, including, but not limited to, product name, lot number, test(s) requested, method(s), claim, limit(s), and the amount of Sample submitted. In addition, Sample must be labeled with Customer's name, Sample name, and lot number. Incomplete or incorrect information may cause a delay in the Delivery Due Date. Unless prior arrangements have been made and agreed upon in writing between Qualimax and Customer, any portion of Sample not used for analysis will be held by Qualimax after submission of the Final Analysis to Customer, and properly disposed of at a time and in a manner as solely determined by Qualimax. At Qualimax's sole discretion, any infrequently requested analyses may require setup fees. Payment of said setup fees are the responsibility of Customer.
(b) In addition to the terms herein, any submission of a Sample containing, or suspected of containing a controlled substance as solely defined by Drug Enforcement Administration ("DEA") regulations ("Controlled Substance") must be submitted in connection with the following information; (i) DEA number and schedule; (ii) Customer's current DEA registration certificate; and (iii) the concentration and amount of Controlled Substance submitted. The submission of a Controlled Substance without said information may cause a delay in the Delivery Due Date.
(c) In addition to the terms herein, any submission of a Sample containing, or suspected of containing a pathogen or substance that is considered, in Qualimax's sole discretion, as hazardous ("Hazardous Sample") must comply with the terms herein and be communicated as such to Qualimax before shipping. Any Hazardous Sample must be appropriately labeled for the protection of office and laboratory personnel. Customer must comply with the following; (i) the shipping carton exterior must be labeled as to the Hazardous Sample enclosed; and (ii) a Material Safety Data Sheet ("MSDS") must be provided with the Hazardous Sample. Customer agrees that the Hazardous Sample may be analyzed, at Qualimax's sole discretion, in a hazardous materials laboratory. Additional fees may be applied in connection with the submission of a Hazardous Sample. Hazardous Sample submissions not in compliance with the terms herein may cause a delay in the Delivery Due Date. Qualimax reserves the right to refuse any Hazardous Sample determined to pose a risk to its employees.
(d) The parties agree that the Delivery Due Date is a "target" date and that time is not of the essence thereof. Qualimax shall not be liable to the Customer for loss or damages suffered by the Customer as a result of delay beyond the Delivery Due Date, if such delay in Testing, shipment, supply or delivery, or non-delivery in whole or in part, is as a result of force majeure, fire, flood, riot, act of God, strike, or act of war or other act or event beyond the control of Qualimax (collectively, "Force Majeure Event"), and Qualimax may by written notice to the Customer postpone delivery until such Force Majeure Event shall have ceased or its effects have abated to a degree to reasonably permit Qualimax to resume its normal delivery schedule, unless the Customer by written notice cancels ("Cancellation Notice") this Request or part thereof affected by such Force Majeure Event, which Cancellation Notice may be effected at any time after thirty (30) days of the Delivery Due Date and so long as Final Analysis whose delivery has been delayed has not been delivered to the Customer. Any quantities effected by such Force Majeure Event may be eliminated from this Agreement without liability, but this Agreement shall remain otherwise unaffected. Qualimax shall not be required to deliver any Final Analysis to the Customer if any invoice for previously shipped Final Analysis' remains unpaid for more than thirty (30) days after the Delivery Date thereof.
(e) Customer shall inspect the Final Analysis upon receipt for conformity with the information provided to Qualimax in this Request. No claim of any kind whether as to the Testing, Final Analysis delivered or for non-delivery of Final Analysis, including claims of erroneous analysis, and whether arising in tort or contract shall be greater in amount than the purchase price of said Testing in respect of which such damages are claimed; and the failure to give written notice of any such claims within thirty (30) days from the date of delivery, or the Delivery Due Date, as the case may be, shall constitute a waiver by the Customer of all claims in respect of such Testing and Final Analysis. No charge, expense or set-off incident to any claim will be allowed unless previously approved by an authorized representative of Qualimax. THE REMEDY HEREBY PROVIDED SHALL BE THE EXCLUSIVE AND SOLE REMEDY OF CUSTOMER. IN NO EVENT SHALL QUALIMAX BE LIABLE FOR SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES. QUALIMAX'S LIABILITY, WHETHER FOR NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED TO REFUNDING THE AMOUNT INVOICED AND IN NO EVENT SHALL EXCEED THE TESTING FEE OF THE SAMPLE IN RESPECT OF WHICH DAMAGES ARE CLAIMED. Customer agrees that it will comply with all federal, state and local laws, regulations, ordinance and rules, including, but not limited to, all environmental laws, safety regulations, ordinances and use and maintenance rules in the use, storage or disposal of the Sample.
(f) Qualimax's liability for damages prior to Delivery shall be limited to the return of any Deposit and, after Delivery, shall be limited to claims assertable under the Qualimax Limited Warranty, hereinafter described.
5. QUALITY ASSURANCE. Methods used for Sample testing ("Testing") are approved by the AOAC, AACC, AOCS, NF, FDA or other organizations that establish, collaborate and approve analytical and microbiological procedures for the food and cosmetic industries. Some methods have been developed within Qualimax and have been validated to ensure they meet appropriate recovery, accuracy, and precision standards for a variety of matrices. Standard Reference Materials ("SRM") are prepared, analyzed and used in some Testing. The values thereafter obtained are tracked to ensure Testing remains within the standard deviation established for the Testing as part of Qualimax's Total Quality Control ("TQC") program. Qualimax is not responsible for errors in the Final Analysis as a result of misinformation provided in this Request by Customer. Since Qualimax has no control over Customer's use of the data contained in the Final Analysis after delivery to Customer, Qualimax cannot guarantee, and shall under no circumstances be held liable for any claims, representations, or warranties given to any and all third parties by Customer. Qualimax and its affiliates accept no legal responsibility for the purpose(s) for which Customer uses the Final Analysis. Qualimax provides only analytical services and does not render consulting services or provide evaluation advice.
6. WARRANTY. Qualimax warrants the accuracy of its Testing for the Sample submitted. The foregoing express warranty is exclusive and is given in lieu of all other warranties, express or implied. Any Testing performed by Qualimax under proper technical direction (as solely determined by Qualimax) which are determined by Customer to be inaccurate and which after investigation by Qualimax are acknowledged in writing by Qualimax's Managing Director to be inaccurate, shall be re-Tested by Qualimax without charge to Customer, provided that Customer provides Qualimax with a written request for such investigation with two months after client knew or should reasonably have known of the inaccuracy. Customer may be required to provide Qualimax with an additional Sample if Qualimax deems same necessary. IN NO EVENT WILL QUALIMAX BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIFIC DAMAGES OR FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS OF WHETHER QUALIMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. PRICES. Prices for Testing are subject to change without notice. Unless expressly agreed to in writing to the contrary, Testing is subject to being completed by Qualimax at the prices in effect at the time of completion of the Final Analysis. If Customer requests changes to Testing after the originally requested Testing is initiated, Customer agrees to accept all additional payment responsibilities.
8. RECHECK ANALYSIS: In the event Customer, at its sole costs, requests a recheck of Sample ("Recheck") pursuant to the original Testing procedures, and the Recheck Final Analysis confirms the original Final Analysis, Customer will be charged for the duplicate Testing. In the event the Recheck Final Analysis is significantly different, as determined solely by Qualimax, Customer will not be charged for the duplicate Testing.
9. TAXES. Testing prices quoted to the Customer do not include any sales, use, excise, ad valorem or like taxes or any customs duties, imposts or surcharges which may now or hereafter be imposed by federal, state or local governments by reason of Qualimax's Agreement with the Customer. The Customer shall deliver to Qualimax evidence of exception from tax and the Customer shall reimburse Qualimax for all taxes, excises or other charges which Qualimax may be required to pay to any Government (National, State or Local) upon the sale, production, delivery or transportation of the Final Analysis provided hereunder.
10. PAYMENT TERMS.
(a) STANDARD PAYMENT TERMS: Payment in United States Dollars (USD) is due thirty (30) days from the date of Delivery unless previously approved in writing by Qualimax. The Customer agrees to pay a late charge of one and one-half (1-1/2) percent per month on any past due account balances. If payment is made by wire transfer, all bank charges shall be at Customer's expense and a service charge therefore will be added to the invoice.
(b) REMITTANCE: All remittances hereunder, including interest payments, shall be made payable in USD to Qualimax by cash or good check without deduction for exchange fluctuations, customs or foreign government assessments (taxes, stamps, or similar charges).
(c) NEW CUSTOMERS: Payment in advance is required for new customers whose credit has not been established with Qualimax. New customers who wish to open an account with Qualimax must complete a Credit Application Form, which Form must be approved by Qualimax prior to the extension of any credit.
(d) SPECIAL TERMS OF PAYMENT: In the event the Customer fails to fulfill Qualimax's terms of payment, or in case Qualimax shall have any doubt at any time as to Customer's financial responsibility, Qualimax may decline to complete further Testing except upon receipt of cash or satisfactory security.
(e) CASH OR EARLY PAYMENT DISCOUNT: There shall be no discount for cash or early payment unless specifically agreed to in writing by Qualimax.
(f) COSTS OF COLLECTION: If any invoice is not paid when due, Customer agrees to pay to Qualimax all costs of collection, including reasonable attorney's fees and court costs.
(g) THIRD PARTY BILLING: All fees or bills are charged directly to Customer, unless a third party has been approved by Qualimax, and has submitted a signed statement of payment responsibility. No Testing will be commenced until said statement is received and Qualimax has approved same.
11. INDEMNIFICATION RESPONSIBILITY AND EXCLUSION.
(a) Indemnification by Customer. The Customer agrees to indemnify and hold Qualimax harmless from and against any claim, demand, debt, suit, cause of action, loss, damage, expense, liability, obligation, or cost (including, without limitation, reasonable attorney's fees) claimed against or suffered by Qualimax in the defense, settlement, or satisfaction thereof, for any injury, death, loss or damage to persons or property of and kind whatsoever arising out of, or as a result of: (i) any breach of the representations, warranties, covenants and agreements of the Customer contained herein; (ii) the negligent acts or omissions of the Customer, its employees or representatives, resulting from or with respect to the storage, use, or handling of the Sample prior to its delivery by Qualimax; and (iii) the negligent acts or omission of the Customer, its employees or representatives, resulting from or with respect to the use of the information contained in the Final Analysis after its receipt by Customer.
12. RELATIONSHIP OF PARTIES. Nothing herein shall be construed to create any partnership between the parties or to authorize the Customer as an agent or legal representatives of Qualimax for any purpose whatsoever; and it is understood between the parties that the Customer is in no way authorized to make any contract, agreement, warranty or representation on behalf of Qualimax. Under no circumstances shall either party be liable for any act, omission, debt or any other obligation of the other.
13. DEFAULT. In the event the Customer shall fail or refuse to perform an act required of it hereunder, the Customer shall be deemed to be in default hereof. A failure or refusal to cure such a default within thirty (30) days after receipt of written notice by Qualimax of such default shall constitute an uncured default ("Event of Default"). At any time after an Event of Default by the Customer and prior to its being cured by the Customer, Qualimax shall have the right to terminate this Agreement by written notice to the Customer and the right to retain any deposits, to recover the amount of any unpaid invoices from the Customer, and to recover any damages relating to said default.
14. SPECIAL CONDITIONS OF SALE. In addition to the standard conditions of sale set forth herein, any special conditions of sale set forth in Qualimax's written price quotations for Testing, if any, covered by this Agreement shall apply and are incorporated by reference herein.
15. COMPLETE AGREEMENT. This Agreement contains all of the terms and conditions with respect to the sale and purchase of the Sample and supercedes any of previous date. No modification shall be effected by the acknowledgment or acceptance of Request forms stipulating different conditions. The Customer's delivery of the Sample if these Terms and Conditions are not accepted in writing by the Customer shall be equivalent to such written acceptance hereof. The Customer understands and agrees that no representation or promise has been made by Qualimax or any of its agents, representatives or employees concerning the subject matter of this Agreement, except as expressly set forth in this Agreement, and that all agreements and understandings between the parties concerning the subject matter of this Agreement are embodied and expressed in this Agreement. This Agreement shall supersede all prior or contemporaneous agreements and understandings among the Customer and Qualimax, whether written or oral, express or implied, with respect to the Testing.
16. ASSIGNMENT, SUCCESSORS AND ASSIGNS. The Customer shall not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Agreement. Any such purported assignment, transfer, or delegation shall be null and void.
17. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey and not its laws of conflict. Any judicial action brought to enforce the rights of the parties hereto shall be brought in the Superior Court of New Jersey, Bergen County, which Court shall have exclusive jurisdiction over the above matter.
18. SEVERABILITY. If any provision of this Agreement, or its application to any person, place, or circumstance, is held by a court of competent jurisdiction to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.
19. ENFORCEMENT OR INTERPRETATION. In any legal action or proceeding brought to enforce or interpret the terms of this Agreement or otherwise with respect to the rights and obligations of the parties involving or arising out of the Request or Testing to the Customer hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs from the non-prevailing party.
20. AMENDMENTS; WAIVERS. This Agreement may not be amended except by an instrument in writing, signed by each of the parties. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement by Qualimax shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof by Qualimax or the exercise of any other right, remedy, or power provided herein or by law or in equity.
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