Terms & Conditions
Materials Analytical Services, LLC
General Terms and Conditions of Service
1 GENERAL
1.1 Unless otherwise agreed to in writing or except where they are at variance with (i) the regulations governing services performed on behalf of governments, government bodies or any other public entity or (ii) the mandatory provisions of local law, all offers or services and all resulting contractual relationships (the Contractual Relationships) between Materials Analytical Services, LLC (MAS) and Client shall be governed by these General Terms and Conditions of service (hereafter “Terms and Conditions”). Client’s agreement to these Terms and Conditions may be express by singing a service quotation, or implied by the receipt of Client’s samples by MAS.
1.2 MAS may perform services for persons or entities (private, public or governmental) issuing instructions (hereafter the “Client”).
1.3 Unless MAS receives prior written instructions to the contrary from Client, no other party is entitled to give instructions, particularly on the scope of the services or the delivery of reports or certificates resulting therefrom (the “Reports of Findings”). Client hereby irrevocably authorizes MAS to deliver Reports of Findings to a third party where so instructed by Client or, at its discretion, where it implicitly follows from circumstances, trade custom, usage, or practice.
2 PROVISION OF SERVICES
2.1 MAS will provide services using reasonable care and skill and in accordance with Client’s specific instructions as confirmed by MAS with:
a) The terms of any standard order form, quotation, or standard specification sheet of MAS; and/or
b) Any relevant trade custom, use, or practice; and/or
c) Such methods as MAS shall consider appropriate on technical, operational, and/or financial grounds.
2.2 Information stated in Reports of Findings is derived from the results of testing procedures carried out in accordance with the instructions of Client, and/or MAS’s assessment of such results on the basis of any technical standards, trade custom or practice, or other circumstances which should in MAS’s professional opinion be taken into account.
2.3 Reports of Findings issued to the Client contain MAS’s opinion on tested samples only and do not express any opinion upon the lot from which the samples were drawn.
2.4 Reports of Findings issued by MAS will reflect the facts as recorded by MAS at the time of its testing only and within the limits of the instruction received or, in the absence of such instructions, within the limits of the alternative parameters applied as provided for in Clause 2.1. MAS has no obligation to refer to, or report upon, any facts or circumstances which are outside the specific instruction received or alternative parameters applied.
2.5 MAS may delegate the performance of all or part of the services to a properly qualified and accredited subcontractor as necessary, and Client authorizes MAS to disclose all information necessary for such performance to the agent or subcontractor.
2.6 Should MAS receive documents reflecting engagements contracted between Client and third parties or third party documents, such as copies of sales contracts, letters of credit, bills of lading, certifications, etc., they are considered to be for information only, and do not extend or restrict the scope of the services or the obligations accepted by MAS.
2.7 Client acknowledges that MAS, by providing the services, neither takes the place of Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of Client to any third party or that of any third party to Client.
2.8 All samples not completely consumed during testing shall be retained for a maximum of 30 days or such other shorter time period as the nature of the sample permits and then returned to Client or otherwise disposed of, recycled/re-used at MAS’s discretion, unless indicated otherwise by the Client, after which time MAS shall cease to have any responsibility for such samples. Storage of samples for more than 30 days shall incur a storage charge payable by Client. Client will be billed a handling and freight fee if samples are returned. Special disposal charges will be billed to Client if incurred. Samples held for reasons of legal proceedings are subject to terms and conditions separately negotiated between MAS and the Client.
3 OBLIGATIONS OF CLIENT
The Client will:
3.1 Ensure that all product samples, assistance, information, records, documentation and other necessary information are made available to MAS when required by MAS, including the assistance of properly qualified, briefed, and authorized personnel of the Client to enable the required services to be performed;
3.2 So far as it is permitted by law, the Client acknowledges that it has not been induced to enter into the Contract in reliance upon, nor has it been given any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in these Terms and Conditions and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights, or remedies which it might otherwise have had in relation thereto. Any conditions or stipulations included in the Client standard form documents which are inconsistent with, or which purport to modify or add to, these Terms and Conditions shall have no effect unless expressly accepted in writing by MAS;
3.3 Take all necessary steps to eliminate or remedy any obstacles to or interruptions in the performance of the Services. Client will supply, if required, any special equipment and personnel necessary for the performance of the services;
3.4 In order to allow MAS to comply with applicable health and safety legislation, the Client shall inform MAS in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing including, for example, presence of risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons, and provide MAS with all available information regarding known or potential hazards likely to be encountered by MAS personnel during testing. This information shall include, but is not limited to, Safety Data Sheets, technical sheets, and product sheets;
3.5 Client represents that the information and samples supplied by it or its agents to MAS are accurate and complete, and acknowledges that MAS is relying upon such information and samples or data in preparation of proposals and subsequent testing without further verification by MAS as to their accuracy and completeness. The Client agrees to hold MAS harmless and to indemnify MAS from any liability of whatever kind or nature, including but not limited to court costs and reasonable attorney’s fees if information or samples provided by the Client are inaccurate or incomplete;
3.6 Fully exercise all its rights and discharge all its liabilities under any relevant sales, or other contract with a third party and at law.
4 FEES AND PAYMENT
4.1 Fees not established between MAS and the Client at the time the order is placed or a contract is negotiated shall be at MAS’s standard rates (which are subject to change) and all applicable taxes shall be payable by Client.
4.2 Unless an alternative payment period is established in the invoice, Client will promptly pay not later than 30 days from the relevant invoice date or within such other period as may be established by MAS in the invoice (the “Due Date”) all fees due to MAS, failing which interest will become due at a rate of 1.5% per month (or such other rate as may be established in the invoice) from the Due Date up to and including the date payment is actually received. All fees shall be paid in U.S. Dollars unless otherwise approved by MAS in writing.
4.3 Client shall not be entitled to retain or defer payment of any sums due to MAS on account of any dispute, counter claim or set off which it may allege against MAS.
4.4 MAS may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
4.5 Client shall pay all of MAS’s collection costs, including attorney fees and related costs.
4.6 In the event any unforeseen problems or expenses arise in the course of carrying out the services MAS shall endeavor to inform Client and shall be entitled to charge additional fees to cover extra time and cost necessarily incurred to complete the services.
4.7 If MAS is prevented from performing or completing any service for which the Contract has been made by reason of any cause whatsoever outside the control of MAS, including but not limited to, acts of god, war, terrorist activity or industrial action; failure to obtain permits, licenses, registration or accreditations; illness, death, or resignation of personnel; pandemic or epidemic; or failure by the Client to comply with any of its obligations under the Contract, the Client will pay to MAS:
a) The amount of all abortive expenditures actually made or incurred;
b) A proportion of the agreed fees equal to the proportion (if any) of the service actually carried out;
and MAS shall be relieved of all responsibility whatsoever for the partial or total nonperformance of the required Services.
5 SUSPENSION OR TERMINATION OF SERVICES
MAS shall be entitled to immediately and without liability either suspend or terminate provisions of the services in the event of:
5.1 Failure by the Client to comply with any of its obligations hereunder and such failure is not remedied within 10 days that notice of such failure has been given to Client; or
5.2 Any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership, or cessation of business by Client.
6 DISPOSITION OF SAMPLES
6.1 MAS shall retain in its archives for 30 days all samples not consumed during the testing process, unless the Client requests that MAS archive samples for a longer period of time. Requests for additional archive time will incur a fee for storage.
6.2 At the end of the archive period, MAS will return the sample to the Client at Client’s expense, donate the sample to a local charitable organization, dispose of the sample, or recycle the sample.
6.3 When submitted samples are deemed hazardous by either MAS or the Client, MAS will have the sample either recycled or disposed of in an appropriate manner according to law or good work practice. A disposal fee may be charged to the Client.
7 LIABILITY AND INDEMNIFICATION
7.1 Limitation of Liability
a) MAS is neither an insurer nor a guarantor and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.
b) Reports of Findings are issued on the basis of information, documents and/or samples provided by, or on behalf of, Client and solely for the benefit of Client who is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither MAS nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Reports of Findings nor any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to the Company.
c) MAS shall not be liable for any delayed, partial, or total non-performance of the services arising directly or indirectly from any event outside its control including failure by Client to comply with any of its obligations hereunder.
d)The liability of MAS in respect of any claims for loss, damage, or expense of any nature and however arising shall be limited, in respect of any one event or series of connected events, to an amount equal to the fees paid to MAS under the Contract.
e) MAS shall have no liability for any indirect or consequential loss including without limitation loss of profits, loss of business, loss of opportunity, loss of goodwill, and cost of product recall. MAS shall further have no liability for any loss, damage, or expenses arising from the claims of any third party (including, without limitation, product liability claims) that may be incurred by the Client.
f) In the event of any claim, Client must give written notice to MAS within 30 days of discovery of the facts alleged to justify such claim and, in any case, MAS shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within one year from:
(i) the date of performance by MAS of the service which gives rise to the claim; or
(ii) the date when the service should have been completed in the event of any alleged nonperformance.
7.2 Indemnification: Client shall guarantee, hold harmless and indemnify MAS and its officers, employees, agents, or subcontractors against all claims (actual or threatened) by any third party for loss, damage, or expense of any nature including all legal expenses and related costs that arise relating to the performance, purported performance, or non-performance, of any services.
8 MISCELLANEOUS
8.1 If any one or more provisions of these Terms and Conditions are found to be illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
8.2 Except as expressly provided for herein, the Client may not assign or transfer any of its rights hereunder without MAS’s prior written consent.
8.3 Neither party shall assign the Contract without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Any assignment shall not relieve the assignor from any liability or obligation under the Contract.
8.4 A Party giving notice under these Terms and Conditions must do so in writing with such notice being hand delivered or sent by prepaid, first class post, facsimile or courier to the address for the other Party as set out in the project quotation. A notice will be deemed received by the other Party:
(a) if hand delivered, on the date of delivery
(b) if sent by first class post, four days after the date of posting;
(c) if sent by facsimile, the time indicated on the sending Party’s facsimile transmission confirmation message:
(d) by courier, on the date of delivery
8.5 The Parties acknowledge that MAS provides services to the Client as an independent contractor and that the Contract does not create any partnership, agency, employment or fiduciary relationship between MAS and the Client.
8.6 Any failure by MAS to require the Client to perform any of its obligations under these Terms and Conditions or the Contract shall not constitute a waiver of its right to require performance of that or any other obligation.
8.7 Use of MAS’s corporate name or registered marks for advertising purposes is not permitted without MAS’s prior written authorization.
9 INTELLECTUAL PROPERTY
Neither party confers to the other any right, title, or interest of any kind in any copyright, trademark, service mark, invention, know-how, concept, technique, patent, or other form of intellectual property, except as expressly granted in writing. Client shall strictly adhere to the specified restrictions and requirements applicable to intellectual property rights granted by MAS and any applicable scheme.
10 GOVERNING LAW, JURISDICTION, AND DISPUTE RESOLUTION
Unless specifically agreed otherwise, all disputes arising out of or in connection with Contractual Relationship(s) hereunder shall be governed by the substantive laws of the State of Georgia, exclusive of any rules with respect to conflicts of laws.
11 CONFIDENTIALITY
11.1 As used herein, “Confidential Information” shall mean any oral or written proprietary information that a party may acquire from the other party pursuant to the Contract or information as to the business of the other party provided, however, that Confidential Information shall not include any information which (1) is or hereafter becomes generally known to the public; (2) was available to the receiving party on a non-confidential basis prior to the time of its disclosure by the disclosing party; (3) is disclosed to a party by an independent third party with a right to make such disclosure.
11.2 Unless required by law or by a judicial, governmental or other regulatory body, neither party nor their agents or subcontractors shall use the Confidential Information other than for the purpose of the Contract nor disclose the other’s Confidential Information to any person or entity without the prior written approval of the other party except as expressly provide for herein.
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