The following Account Terms and Conditions apply to all transactions for laboratory testing and services between Client and Microchem Laboratory LLC (“Microchem”):
General Terms – These standard Account Terms and Conditions, any separate non-disclosure agreement executed by Client and Microchem, Microchem’s final price quote or similar document (“Price Quote”), the purchase order, Microchem’s confirmation of sale and any accepted change orders (collectively, the “Agreement”) represent the full agreement of the parties. The Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties, unless mutually agreed upon in writing by legally authorized agents of both parties. Microchem specifically rejects all additional, inconsistent, or conflicting terms, whether printed or otherwise set forth in any purchase order or other communications from Client to Microchem. No failure by Microchem to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement shall operate, or be construed as a waiver thereof. Nor shall any single or partial exercise by Microchem of any right, remedy, power or privilege under the Agreement preclude any other or further exercise therefore or the exercise of any other right, remedy, power or privilege. In the event of any conflict between a provision of the Price Quote and the Account Terms and Conditions, the provision in the Price Quote for a specific test shall control but only to the extent the Price Quote, agreed to by each party, specifically identifies the conflicting terms and affirmatively states that the terms set forth in the Price Quote control. The parties agree that the use of standard business forms, including, but without limitation, purchase orders of Client, shall be solely for convenience, and none of the provisions, terms, and conditions contained on such forms shall apply or modify the Agreement.
Price Quotes – Microchem issues price quotes based on information supplied by Client, in good faith. Client represents and warrants to Microchem that, unless otherwise specified in writing by Client to Microchem: (a) test substances are reasonably homogeneous and do not require elaborate preparation or storage beyond the scope of the analytical method; (b) test substances do not present unreasonable and/or undeclared safety hazards; (c) test substances will be delivered to the laboratory or accessible for pick up within any applicable holding times; and, (d) levels of contaminants in the test substances do not present abnormal technical difficulties. Microchem reserves the right to bill additional amounts for unanticipated work which was not assumed by Microchem at the time of quotation, provided such work and the cost of such work is brought to the attention of Client before the unanticipated work is performed. Pricing quoted by Microchem shall remain in effect for ninety (90) days unless otherwise stated in the quote or agreed upon by the parties in writing and is subject to change after that period.
Test Substance Delivery – The risk of loss or damage to a test substance (including devices) during shipment remains with Client. Microchem will use commercially reasonable efforts to advise Client of test substances which are missing or received damaged, contaminated, or in improperly preserved condition. Microchem reserves the right to refuse to accept or to rescind acceptance of any test substance, which in the sole judgment of Microchem may pose any unreasonable risk in handling and/or analysis. Client represents and warrants that any test substance containing any hazardous substance which is to be delivered to Microchem is properly labeled, packaged, manifested, transported, and delivered to Microchem in accordance with all applicable federal, state, and local laws, ordinances, regulations, rules, and requirements. Unless otherwise agreed to in writing in advance, all disposal costs of test substances containing hazardous substances shall be the responsibility of Client and Client shall reimburse Microchem, within thirty (30) days of invoice, for any such costs. If Client wishes test substances to be returned to them, it will be the Client’s responsibility to schedule pick up and provide Microchem with a shipping label for the package. Client must also provide packing materials and/or instructions to pack the return, if non-standard packing is necessary. Microchem is not responsible for any costs to return test substances to Client (e.g. freight fees, packaging materials, etc.).
Scope of Services – Microchem agrees to perform the services as described in the Price Quote (the “Services”).
Expedite Charges – These charges occur when the Client requests, and Microchem agrees to accommodate, expedited testing. Expedite charges are an additional 50%-100% of the test invoice (minimum fee, $150.00). Expedite charges are designed to compensate for Client’s request to interrupt regularly scheduled tests, expedite material purchases, or require staff overtime, after-hours, weekend or holiday work.
Payment Terms – Microchem requires pre-payment for studies unless alternative payment terms have been established prior to testing. Studies are pre-paid via a deposit for the full study amount, which is then applied by Microchem to testing fees proportionally, beginning at the time of project initiation and ending at the time of report issuance. All deposits become non-refundable after 18 months. Any credit granted to the Client by Microchem is at the sole discretion of Microchem and Microchem may cancel, reduce or refuse to extend additional credit at any time, with or without cause of any kind. The acceptance of any purchase order by Microchem shall be conditioned upon approval of the Client’s credit or payment in advance for Services. If alternative payment terms have been extended to a Client, payment in full is required within the number of days indicated on the invoice from the date of each invoice, unless otherwise agreed upon in writing by legally authorized agents of both parties. All overdue payments are subject to an interest charge from the date due of the lesser of eighteen percent (18 %) per annum (based upon the corresponding daily rate) or the maximum amount of interest permitted under Texas law. Whenever Client’s account is overdue in whole or in part, Microchem reserves the right to immediately suspend or cease any or all work, hold testing results and/or decline to accept additional work, indefinitely or until the overdue balance is paid in full. Microchem also reserves the right to send the account, in whole or in part, to a collection agency, attorney, or other legal entity. If for any reason Client’s account is sent to a collection agency, attorney, or other legal entity, Client agrees to pay Microchem for all collection costs, attorney costs, and court costs associated with the collection of outstanding invoices.
Payment Types – Payment types accepted are ACH, company check in US dollars, credit card (Visa, Mastercard, Discover and American Express) and wire transfer. Credit card purchases (up to a limit of $5,000) are limited to $5,000 and are subject to a 3.5% credit card processing fee. Client will be charged a $50.00 service fee on all returned checks. Wire transfers are subject to a $35 wire service fee. Client will be responsible for any intermediary bank charges incurred for processing wire transfers. If a Client neglects to pay those fees and Microchem is charged, Microchem reserves the right to bill Client for such fees in addition to the $35 wire service fee.
Reduction, Suspension or Cancellation of Work – Microchem reserves the right to begin testing upon receipt of test substance from the Client. If the Client reduces, interrupts or suspends testing for any reason, the completed portion of work (including but not limited to, supplies, materials, labor, and equipment utilization), shall be billed to the Client. In such circumstances where Microchem agrees to place testing on hold, Microchem may bill the Client, up to the full cost of established testing rates including storage fees, until the testing resumes or is terminated by the Client. If testing is scheduled and the Client reduces or cancels testing, the Client will be subject to a Cancellation Charge based on the timing of the cancellation in regard to the test start date. Cancellation charges are above any charge for protocol development and the cost of any special supplies or test items required to be purchased for test.
Time Prior to Scheduled Test – Start Date Cancellation Charge
More than 60 days – No charge
31-60 days – 35% charge (minimum $150)
30-8 days – 50% charge (minimum $150)
Within 7 Days or after Test Start Date – 100% charge (minimum $150)
If a test has not been scheduled but significant work/time has been spent by Microchem on behalf of the Client for test planning or preparation or any supplies purchased for test, the Client will be responsible for any work time (based upon Microchem’s estimate of proportionate work completed for the project) and supplies plus a 10% charge for the cancellation of the testing.
Record Retention and Report Use and Ownership –
“Failing” Study Records – Reports and all associated documentation (other than test facility records) for studies that fail to meet the passing criteria specified by the protocol will be held in the archives of Microchem Laboratory for two (2) years from study completion, after which reasonable storage fees apply and will be billed annually. Sponsors may elect to transfer archived documentation to their own GLP-compliant archives at their own expense at any time. After two years, the Sponsor may grant Microchem permission in writing to destroy the file.
“Passing” Study Records – Reports and all associated documentation (other than test facility records) for studies that meet the passing criteria specified by the protocol will be held in the archives of Microchem Laboratory for five (5) years from study completion, after which reasonable storage fees apply and will be billed annually. Sponsors may elect to transfer archived documentation to their own GLP-compliant archives at their own expense at any time. If, after five years, the Sponsor indicates the study will not be used to support a product registration, it may grant Microchem permission in writing to remove it from the archives or destroy it.
All other GLP Records, including “Facility” Records – All test facility records including, but not limited to, standard operating procedures, quality assurance inspection records, temperature and equipment records including maintenance, inspection and calibration, and employee training records will be maintained by Microchem Laboratory, free of charge to Sponsors, indefinitely.
Microchem agrees to provide Reports solely for Client’s use for the purposes disclosed to Microchem at the time of quoting. Microchem may produce, in the performance of the Services, reports, compilations, analyses, data and other documentation and information (collectively, “Reports”). Reports provided by Microchem to Client shall be for Client’s use only. If, as part of Client’s use of a Report, Client disseminates such Report to a third party, Client shall: (a) disseminate only true, complete, correct, and unmodified copies of Report; and (b) indemnify, defend, and hold Microchem harmless from any and all claims, costs (including attorneys’ fees), expenses, liability, loss or damage arising out of or relating in any way to such dissemination, including but not limited to claims and liability involving the actual or alleged negligence or fault of Microchem.
Responsibilities of Client for any Field Work – For field work, Client shall: (a) report to Microchem any condition at the site that may present a potential danger to Microchem employees while conducting the Services; and (b) identify, in writing, any special safety, health, and environmental procedures or requirements must be followed while onsite or in special areas onsite.
Project Delays and Changes – Delivery dates set forth in the Agreement are estimates only. Microchem shall use commercially reasonable efforts to perform the Services within the time periods and delivery dates specified, but shall have no liability for any delay in performing the Services, however caused, including but not limited to, delay causes within the control of Microchem and delays caused directly or indirectly by circumstances beyond Microchem’s reasonable control, including but not limited to acts of God, fire, flood, war, sabotage, accident, labor dispute, shortage, government action including regulatory requirements, changed conditions or delays resulting from actions or in-actions of Client or third parties, site inaccessibility, or inability of others to obtain material, labor, equipment, or transportation.
Client Acts or Omissions – If Microchem’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Microchem shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Confidentiality – Microchem typically enters into separate non-disclosure agreements (“NDAs”) with its clients. To the extent Microchem and Client have entered into an NDA, any information or documentation disclosed between the parties relating to or in connection with the Agreement shall be subject to the terms and conditions of the NDA, which terms and conditions are incorporated by reference as if stated herein, and which shall apply for the term of the Agreement.
Taxes – In addition to the fees owing, Client agrees to pay all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client under the Agreement.
Litigation – Client agrees to promptly pay all costs incurred by Microchem in order to comply with any subpoena or other official request for documents, testimony, or other purpose relating to the Services performed by Microchem hereunder. In the event that Microchem pays for any such costs directly, Client shall promptly reimburse Microchem for all such costs. Such costs shall include, but are not limited to, hourly charges for persons involved in responding to subpoenas, testifying and other required activities, travel and accommodations, mileage, attorneys’ fees incurred by Microchem, and all other reasonable expenses. If testing is intended or anticipated by Client to be used in litigation, Client agrees to notify Microchem before the quotation is issued by Microchem.
Entire Agreement – The Agreement constitutes the entire agreement between the parties. Any variations, cancellations or additions to the Agreement shall not be of any force or effect unless reduced to writing and signed by legally authorized agents of both parties.
Standard of Care and Warranty of Services – Microchem warrants that it will perform the Services in accordance with generally accepted industry standards. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, MICROCHEM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE SERVICES (INCLUDING ITS FINDINGS, RECOMMENDATIONS, REPORTS, PROFESSIONAL JUDGMENT OR ADVICE) OR ANY OTHER SERVICES FURNISHED BY MICROCHEM TO CLIENT, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE WHICH ARE HEREBY DISCLAIMED. IN THE EVENT THAT MICROCHEM FAILS TO PERFORM THE SERVICES IN ACCORDANCE WITH GENERALLY ACCEPTED INDUSTRY STANDARDS, MICROCHEM’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, SHALL BE, AT MICROCHEM’S OPTION, TO HAVE THE IMPROPERLY PERFORMED SERVICES TO BE REPERFORMED BY MICROCHEM, AT MICROCHEM’S SOLE COST AND EXPENSE, OR TO REFUND THE AMOUNTS PAID BY CLIENT FOR THE IMPROPERLY PERFORMED SERVICES.
Limitations of Liability – IN NO EVENT SHALL MICROCHEM BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, GOODWILL, PROFIT, OR DATA, OR FOR ANY DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, WHETHER ARISING OUT OF THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, AND WHETHER OR NOT MICROCHEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MICROCHEM’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO MICROCHEM FOR THE SERVICES PERFORMED UNDER THE AGREEMENT GIVING RISE TO THE CLAIM. Client hereby further acknowledges and agrees that Microchem shall have no liability for the purposes for which Client uses the results provided by Microchem to Client and agrees to hold Microchem harmless from any claims, liabilities or losses associated with Client’s use of the results.
Indemnity – Client agrees to indemnify, defend and hold Microchem, its affiliates and their respective officers, directors, employees, agents, representatives, and suppliers (each a “Microchem Related Party”, and collectively, the “Microchem Related Parties”) harmless from and against any claims, costs (including attorneys’ fees), expenses, liabilities, losses, damages, actions, or demands arising out, relating to or in connection with (a) any breach or alleged breach of the Agreement by Client, (b) Client’s use of the Report or results provided by Microchem, (c) any dissemination of the Report by Client, and (c) Client’s violation of applicable law. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT CLIENT’S OBLIGATION TO INDEMNIFY, DEFEND AND HOLD THE MICROCHEM RELATED PARTIES HARMLESS FOR CIRCUMSTANCES UNDER (B) AND (C), INCLUDES CIRCUMSTANCES WHERE MICROCHEM IS OR IS ALLEGED TO BE NEGLIGENT OR OTHERWISE AT FAULT.
Termination – Microchem has the right to terminate the Agreement if conditions or hazards are encountered that differ materially from the expected conditions and hazards that make Microchem’s performance, in Microchem’s sole opinion, impracticable. In the event of termination for any reason, Microchem shall be paid for all completed work up to and including the date of termination.
Non-Solicitation Provisions – As a result of the performance of Services under the Agreement, Client and Microchem understand that employees and personnel from both parties will work closely together and form professional relationships. To provide for a continuity of Microchem’s employment relationship with its employees and to allow them to interact with Client, Client agrees that during the period in which Services are provided, and for one year after the Services are completed, it will not in any way, directly or indirectly, on Client’s own behalf or on behalf of or in conjunction with any other person, partnership, firm or corporation, solicit, divert, take away, or attempt to take away, hire or employ any employee of Microchem who was involved in providing Services to Client, including persons who were involved in providing the Services but who are no longer employed by Microchem. A violation of this provision shall be considered a material breach of the Agreement, which shall result in damages payable to Microchem by Client equal to the annual salary or equivalent prorated annual compensation for hourly employees paid by Microchem to the employee in question.
Choice of Law; Venue – The Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be brought exclusively in the state or federal courts of record in Williamson County, Texas. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.
Attorneys’ Fees – In any court action at law or equity that is brought by one of the parties to the Agreement to enforce or interpret the provisions of the Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
Relationship of the Parties- The relationship between Client and Microchem is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Assignment – Client shall not assign or transfer the Agreement, in whole or in part, to any third party for any reason without the prior written consent of Microchem, which such consent may be withheld in Microchem’s sole discretion. Any such assignment of transfer in violation of the foregoing shall be null and void and of no force and effect. The Agreement shall be binding upon Client and its permitted successors and assigns.
No Third-Party Claims – The Services provided and Reports generated by Microchem are intended to be for the benefit of Client only, and Microchem shall have no liability with respect to any third-party claims. No person or entity is intended to be a third-party beneficiary of the Agreement.
Amendment – These Account Terms and Conditions may only be amended or modified in writing stating specifically that it amends these Account Terms and Conditions and is signed by an authorized representative of each party.
Severability – If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable l such term or provision in any other jurisdiction.
Survival – Provisions of these Account Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement, including, but not limited to following provisions: Limitations of Liability, Indemnity, Choice of Law and Venue, Non-Solicitation Provisions, Litigation, and Confidentiality.