Aerotech P&K Instruments - Terms & Conditions

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Terms & Conditions

This document sets forth the terms and conditions under which AEROTECH LABORATORIES, INC., an Arizona corporation, or P & K MICROBIOLOGY SERVICES, INC., a Delaware corporation, as indicated on the face of this Chain-of-Custody form, (hereinafter “Company”), provides laboratory, consulting and sampling services to Customers. In the absence of a written agreement to the contrary, any order or delivery of samples using this Chain-of-Custody form constitutes an acceptance by the Customer of Company's offer to do business under these Terms and Conditions, and an agreement to be bound by these Terms and Conditions. No contrary or additional terms and conditions expressed in a Customer's document shall be deemed to become a part of the contract created upon acceptance of these Terms and Conditions.

Fees For Professional Services. All services provided by Company shall be performed in accordance with the written Quotation provided by Company to the Customer.An agreement by Company and the Customer to proceed absent the issuance of a written Quotation shall be performed and billed in accordance with Company’s published price schedule in effect at the time of the agreement of the parties to proceed. Customers may order services (specify a “Scope of Work”) by submitting a written purchase order or a written request for analysis or by placing a telephone order. All telephone orders must be subsequently confirmed in writing by the Customer. Company will provide the Customer with information concerning the progress of the work Company is performing for the Customer and will notify the Customer of any changes, concerns, problems or delays materially affecting performance.
Samples. Customers must provide, together with the submission of their samples, a completed and signed Chain of Custody form with adequate instructions describing the type of analysis requested and a complete and thorough written disclosure of the known or suspected presence of any hazardous substances. Hazardous substances are those defined as such by local, state and federal law. Customers shall be liable and shall pay all costs and damages resulting from i) a Customer’s failure to disclose to Company that a sample contained or was suspected to contain a hazardous substance; or ii) a Customer’s failure to comply with any local, state or federal law regarding the sample; or iii) any action on the part of the Customer which interrupts Company’s ability to process work, contaminates Company’s instruments or work areas or necessitates any clean-up or recovery on the part of Company.
Sample Delivery Acceptance. Sample Delivery Acceptance is defined as the point in time after which Company has received and inspected the samples and received project guidance regarding the work to be done and resolved any discrepancies in the Chain of Custody Forms and made a determination that it can proceed with the defined work. Company reserves the right to refuse or reject Sample Delivery Acceptance for any sample that it deems to be: (i) of unsuitable volume; (ii) a health, safety, environmental or other risk; (iii) a sample that will fail to meet holding times either due to the passage of more than 48 hours from the time of sampling or the passage of half the holding time for the requested test, whichever is less; or (iv) the passage of time prior to delivery, such that sample viability is not maintained.
Risk of Loss. Prior to Sample Delivery Acceptance, the entire risk of loss or damage to samples remains with the Customer, except where Company provides courier services. In no event will Company have any responsibility or liability for the action or inaction of any carrier shipping or delivering any sample to or from Company's premises. Customer is responsible for determining whether or not the sample it is shipping contains a hazardous substance as defined by law, and for taking all actions necessary to ensure the sample it ships is packaged, labeled, transported and delivered properly and in accordance with all local, state and federal laws.
Invoices And Payment Terms. Company will issue an invoice, based upon the written Quotation or Price Schedule, whichever is applicable, upon completion of a sample project. Prices quoted do not include sales tax, and any applicable sales tax will be added to the invoice. Payment terms are net 30 days from the date of the invoice, upon approval of a credit account. All overdue payments are subject to an additional interest and service charge of one and one-half percent (1.5%) (or the maximum rate permissible by law, whichever is lesser) per month or portion thereof from the due date until the date of payment. Company may suspend work under this order at any time in the event Customer fails to make timely payment of its invoices. Company reserves the right to refuse to proceed with work at any time based upon an unfavorable Customer credit report.
Confidentiality. Company will exercise all reasonable efforts to maintain the Customer’s confidentiality with regard to business or technical information it receives in connection with its performance for the Customer. Company will use the information it receives about Customers solely for the purpose of providing services to the Customer.

The Customer shall treat all information and data it receives about Company as proprietary and confidential. The Customer shall maintain in strict confidence all such information, including but not limited to information concerning technology, procedures, and methods used by Company, formulas, trade secrets, ideas, computer programs and inventions. The Customer shall not disclose, and shall prevent disclosure of, confidential information to any third party without express written permission being granted by Company.

This provision does not prevent either party from disclosing and/or using information or data (i) known to the receiving party before being obtained or derived from the transmitting party; (ii) that is available to the public without the receiving party’s fault at any time before or after it is acquired by the transmitting party; (iii) that is obtained or acquired in good faith by the receiving party from a third party who has the same information in good faith and who is not under obligation to the receiving party with respect thereto; (iv) where a written release is obtained by the receiving party from the transmitting party; (v) after five (5) years from the receipt of such information; or (vi) when required by process of law; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process.
Record Retention. Company will retain records pertaining to the work performed for the Customer for a period of seven (7) years following the issuance of a work report. Should Customer desire Company maintain the records in excess of seven (7) years, the Customer must notify Company in writing. The Customer, in accordance with Company’s fee schedule, will owe an additional record retention charge in effect at the time of the request.
Change Orders. Changes to the Scope of Work, including but not limited to increasing or decreasing the work, changing test and analysis specification, or acceleration in the performance of the work may be initiated by the Customer after Sample Delivery Acceptance. Such a change will be documented in writing and may result in a change in cost and turnaround time commitment, which equitable adjustment will be made upon agreement by Customer. Company's acceptance of such changes is contingent upon technical feasibility and operational capacity.

Changes to the Scope of Work, price, or result delivery date may be initiated by Company after Sample Delivery Acceptance due to any condition which conflicts with analytical, QA or other protocols warranted in these Terms and Conditions. Company will not proceed with such changes until an agreement with the Customer is reached on the amount of any cost, schedule change or technical change to the Scope of Work, and such agreement is documented in writing.
Suspending or Stopping Company’s Performance. The Customer may direct Company to suspend a portion or all of the work to be performed. In such case, the Customer will remain responsible for all work performed up until the time Company became aware of Customer’s desire to discontinue the services. Any uncompleted analysis will be billed on a prorated basis, as determined by Company. All directions by Customer to suspend work must be issued to Company in writing.
Professional Practice. Company employees will perform in accordance with accepted industry practice and to accepted industry standards. Company seeks to insure that all services will be performed in a timely and professional manner and that all findings are technically valid. Any failure on the part of Company to perform in accordance with industry standards will be corrected, provided such failure was a direct result of acts or omissions by Company concerning factors deemed to be in Company’s scope of work pursuant to this Agreement and under Company’s exclusive control.
Methods. Where the services to be provided by Company require the use of analytical methodologies, Company will use those analytical methodologies which conform with methodologies set by the U.S. Environmental Protection Agency (EPA), American Society for Testing and Materials (ASTM), Association of Official Analytical Chemists (AOAC), Standard Methods for the Examination of Water and Wastewater, or other such appropriate methodologies. Company may deviate from these methodologies where, in Company’s judgment, it is necessary or appropriate to do so. The nature or compositions of a sample are examples of factors that may require Company to deviate from these methodologies. Any deviations from the analytical methodologies set forth above will be made in accordance with recognized industry standards, Quality Assurance Plans and/or referenced Standard Operating Procedures.
QAPjPs. Should the Customer want Company to perform in accordance with a mutually agreed upon Quality Assurance Project Plan (QAPjP), the Customer must seek agreement with Company on such a plan before Company receives the samples. Samples arriving prior to an agreement upon a QAPjP will be analyzed under Company’s standard Quality Assurance Plan then in effect. Company will not be responsible for resampling or other costs for work that must be completed in order to comply with a QAPjP that is finalized subsequent to Company receiving samples.
Holding Times. Company will initiate preparation and/or analysis within holding times, provided Sample Delivery Acceptance occurs within forty- eight (48) hours of sampling or one-half (1/2) of the holding time for the test, whichever is less. For analyses which do not have holding time requirements, Company shall use its best efforts to process samples as soon as practicable, while the sample is viable. In cases where Sample Delivery Acceptance is not made within these time periods, Company will use their best efforts to meet the holding times. The holding time commitment shall be satisfied if an initial analysis is performed within the holding time and reanalysis, to comply with Quality Assurance Requirements, is performed outside the holding time. Company will remedy any failure to meet a holding time commitment where such failure is due to Company’s negligence. Company shall not be responsible where sample viability is reduced due to shipping time or conditions in transit.
Licenses and Certifications. The Customer shall provide Company with notice in writing, prior to Sample Delivery Acceptance, of all licenses and certifications that it will require Company to hold during performance of services by Company for the Customer. Company will notify the Customer of any revocation of a required license or certification.
Warranties. The warranty obligations set forth in Sections 10, 11, and 13 are the sole and exclusive warranties given by Company in connection with any services performed by Company or any Results generated from such services, and Company gives and makes NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. No representative of Company is authorized to give or make any other representation or warranty or modify this warranty in any way.
Remedy. Customer's sole and exclusive remedy for the breach of warranty in connection with any services performed by Company, will be limited to repeating any services performed, contingent on the Customer's providing, at the request of Company and at the Customer's expense, additional sample(s) if necessary. Any reanalysis requested by the Customer generating Results consistent with the original Results will be at the Customer's expense.

In the case of any finding of liability, by a court of competent jurisdiction, on the part of Company for damages incurred by Customer, Customer agrees, to the maximum extent permitted by law, to limit an award for damages, to one hundred dollars ($100.00) or to the fee charged to the Customer by Company for the relevant services, whichever is greater. This limitation applies regardless of the cause of action or legal theory pled or asserted. All claims, including those for negligence, shall be deemed waived unless suit thereon is filed within one year after Company's completion of the services. Under no circumstances, whether arising in contract, tort (including negligence), or otherwise, shall Company be responsible for loss of use, loss of profits, or for any special, indirect, incidental or consequential damages occasioned by the services performed or by application or use of the reports prepared. Indemnification, releases from liability and limitations of liability shall apply, not withstanding the fault, negligence, or strict liability of the party to be indemnified, released or whose liability is limited, except to the extent that there is willful misconduct. In the event either party shall be successful in any suit for damages for breach of this Agreement, including nonpayment of invoices, or to enforce this Agreement or to enjoin the other party from violating this Agreement, such party shall be entitled to recover as part of its damages its reasonable legal costs and expenses for bringing and maintaining any such action.
Force Majeure. If Company is delayed at any time in performing Services by an act, failure to act or neglect of Customer or Customer’s employees or any third parties; by changes in the scope of work; by unforeseen circumstances including acts of force majeure, including, but not limited to, acts of God, acts of Customer, acts or orders of any governmental authority, strikes or other labor disputes, natural disasters, accidents, wars, civil disturbances, equipment breakdown, unavailability of supplies from usual suppliers, difficulties or delays in transportation, mail or delivery services, or any other cause beyond Company's reasonable control; by delay authorized by Customer and agreed to by Company, then the time for completion of such Services shall be extended based upon the impact of the delay. Company shall receive an equitable compensation adjustment if the delays caused by any of the above result in changes, require additional Services, or result in additional costs to Company.
Ownership of Data. Data or information provided to Company by the Customer shall remain the Customer’s property. Upon full payment to Company for all services provided by Company, data or information generated by Company for the Customer shall become the Customer’s property. Company will retain exclusive ownership of any and all analytical methods, QA/QC protocols, and equipment developed by Company for performance of work by Company.
Challenge to results. The Customer shall pay Company for all services performed on their behalf and for all results utilized by the Customer or the Customer’s Customer, regardless of any allegation on the part of the Customer or Customer’s Customer that the results issued by Company did not conform with Company’s responsibilities as set forth in these terms and conditions. In every instance, Company shall be given the opportunity to defend its data directly with any person or entity challenging its results. Should Company be prohibited or hindered from directly defending its data, all sums owed to Company by the Customer shall be immediately due and payable and no refund for sums paid by the Customer will be issued by Company.
Choice of Laboratory. Unless the Customer has specified, in a timely manner, a particular location where Company is to perform its services for the Customer, Company may perform services for the Customer at any laboratory in its network. Company retains the right, at its discretion, to subcontract services ordered by the Customer to another laboratory or other laboratories. If Company intends to use subcontract services to a laboratory in its network, Company shall first obtain written consent from the Customer.
Sample Disposal. Where samples are not consumed in the analytical process, Company shall dispose of the Customer's samples 14 days after the analytical report is issued, unless instructed to store them for an alternate period of time, in a manner consistent with U.S. Environmental Protection Agency regulations or other applicable federal, state or local requirements. Any samples for projects that are canceled or not accepted, will be returned to the Customer at his own expense.
Litigation Services. The Customer will be required to pay and/or reimburse Company for all costs incurred, including the time spent by Company employees and officers, should Company be required to respond to legal process related to services it has provided to the Customer or should the Customer request file searches, additional reporting, or a consultation that is above and beyond that usually offered in the normal course of business. Customer will pay for all time expended by Company employees and officers in accordance with their hourly rate as set forth on the fee schedule published and in effect at the relevant time. In addition to the above enumerated charges, Customer will pay all legal costs incurred by Company in obtaining legal advice, preparing a response and issuing a legal response to the legal process, and in preparing and issuing legal testimony, whether oral or in writing. Customer’s agreement to pay and/or reimburse Company for the litigation services and costs referenced above shall remain in full force and effect for 10 years from the last date that Company completes providing services for the Customer.
Insurance. Company shall maintain in force during the performance of services under these Terms and Conditions, Workers' Compensation and Employer's Liability Insurance in accordance with the laws of the states having jurisdiction over Company's employees who are engaged in the performance of the work. Company shall also maintain during such period, Comprehensive General and Contractual Liability, Comprehensive Automobile Liability, owned and hired, and Professional Liability Insurance. An Insurance certificate can be furnished on request.
Entire Agreement. These Terms and Conditions, together with any duly authorized and executed addendum, embody the whole agreement of the parties and provide the only remedies available to the Customer. These Terms and Conditions supersede all previous communications, representations, or agreements, either verbal or written, between the Customer and Company. These Terms and Conditions, and any transactions or agreements to which they apply, shall be governed both as to interpretation and performance by the laws of the state where Company's services are performed. No modification or waiver of any provision of these Terms and Conditions shall be binding on either party unless made in writing and executed by the Customer and Company.
Severability. The invalidity or unenforceability, in whole or in part of any provision, term or condition hereof shall not affect in any way the validity or enforceability of the remainder to these Terms and Conditions, the intent of the parties being that the provisions be severable. The section headings of these Terms and Conditions are intended solely for convenient reference and shall not define, limit or affect in any way these Terms and Conditions or their interpretations.
Waiver. No waiver by either party of any provision, term or condition hereof or of any obligation of the other party hereunder shall constitute a waiver of any subsequent breach or other obligation. All waivers must be in writing.
Compliance with Laws. Company and the Customer agree to comply with all applicable laws, ordinances, codes and regulations.