STANDARD TERMS & CONDITIONS
- General. These standard terms and conditions (the “Terms and Conditions”) together with the quote letter, proposal or similar document (the “Quote Letter,” and together with the Terms and Conditions and any accepted change orders, the “Agreement”) submitted by Microbac Laboratories, Inc. (“Microbac”) embody the whole agreement of the parties. This Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties, unless mutually agreed upon in writing by both parties. Microbac specifically rejects all additional, inconsistent or conflicting terms, whether printed or otherwise set forth in any purchase order or other communications from the client (“Client”) to Microbac. 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 of the Agreement. No waiver by Microbac of any provision, term or condition hereof or of any breach by or obligation of Client hereunder shall constitute a waiver of such provision, term or condition on any other occasion or a waiver of any other breach by or obligation of Client. In the event of any conflict between a provision of the Quote Letter and the Terms and Conditions, the provision in the Quote Letter shall control. The parties agree that the use of standard business forms, including, 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 this Agreement.
- Quotations. Microbac issues quotations for analysis, based on information supplied by Client, in good faith. Unless otherwise specified in writing, Microbac shall have the following expectations: (a) that samples are reasonably homogenous and do not require elaborate sample preparation beyond the scope of the analytical method; (b) that samples do not present unreasonable and/or undeclared safety hazards; (c) that samples will be delivered to the laboratory or accessible for pick up within any applicable holding times; and, (d) that levels of contaminants, whether target analytes or not, in the sample do not present abnormal technical difficulties. Microbac reserves the right to bill for unanticipated work which was not assumed at the time of quotation and for shipping fees and/or shipping supplies. In addition, if the prices quoted to Client by Microbac are based on a guaranteed volume of samples from Client over a particular time period and Client does not meet this guaranteed volume, then Microbac reserves the right to bill Client for any price difference based on actual volumes. This right may be exercised, in Microbac’s discretion, once Microbac determines that the guaranteed volume has not or will not be met, by either (i) charging the prices that would have been charged without the volume discount for ongoing work, and/or (ii) retroactively billing Client for the difference between the prices that were charged based on the promised volumes and the prices that should have been charged based on actual volumes.
- Scope of Services; Payment Schedule. Microbac agrees to perform the services as described in the Quote Letter (the “Services”). This Agreement shall apply to any modifications or future work performed by Microbac for Client. Microbac shall have the right to subcontract all or any portion of the Services to be performed under this Agreement. Payment in full is required within thirty (30) days from the date of each invoice, unless otherwise agreed upon in writing by authorized agents of both parties. All overdue payments are subject to an interest charge of one and one-half percent (1 ½ %) per month or a portion thereof. Whenever Client’s account is overdue in whole or in part, Microbac reserves the right to immediately suspend or cease any or all work, refuse to release testing results and/or refuse to accept additional work, indefinitely or until the overdue balance is paid in full. Microbac 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 shall indemnify Microbac for all collection costs, attorney costs, and court costs associated with the collection of outstanding invoices. The prices, unless otherwise stated, do not include any sales, use or other taxes. Such taxes will be added to invoice prices when required. Microbac reserves the right to require payment in full prior to release of data. Microbac reserves the right at any time and from time to time to increase its pricing for the Services. Such price increases will be communicated (which communication may be via an update to Microbac’s standard price list) to the Client at least 15 days prior to the date on which the price increase will take effect.
- Additional Fees. Microbac reserves the right to charge Client for (i) customization of reports, (ii) tailored EDDs, (iii) any special paperwork or report requests, (iv) assistance with data entry for reporting purposes, (iv) sample handling and disposal fees, (v) fuel surcharges, (vi) data pulls, (vii) hardcopy of reports, (viii) cancellation fees if work is cancelled after it has begun, (ix) supplies and/or test kits, (x) field services, including, but not limited to, short notice schedule requests or cancellations, rentals or required waiting times, (xi) creating bottle orders, (xii) non-core business hour surcharges, (xiii) client specific rental charges, and (xiv) similar items or other special requests.
- Client’s Responsibilities. For field work, unless otherwise expressly waived in the Quote Letter, Client shall: (a) grant or cause to be granted to Microbac access to all sites, areas, and spaces as necessary for the performance of the Services; (b) provide ladders, scaffolding, lifts, or other equipment necessary for Microbac to access areas and spaces above ceilings, exterior building components, crawl spaces, and other difficult-to-access areas and spaces; (c) supply Microbac scaled architectural drawings of individual buildings, facility grounds, or any other areas required to complete the Services prior to project commencement; (d) report to Microbac any condition at the site that may present a potential danger to Microbac employees while conducting the Services; and (e) identify, in writing, any special safety, health, and environmental procedures or requirements must be followed while onsite or in special areas onsite.
- Delivery of Samples. The risk of loss or damage to a sample during shipment remains with Client. Microbac will advise Client of samples which are missing or received in damaged, contaminated, or improperly preserved condition. Microbac reserves the right to refuse to accept or to rescind acceptance of any sample, which in the judgment of Microbac is likely to pose any unreasonable risk in handling and/or analysis. Client represents and warrants that any sample containing any hazardous substance which is to be delivered to Microbac is labeled, packaged, manifested, transported, and delivered to Microbac in accordance with all applicable federal, state and local laws, ordinances, regulations, rules and requirements. Unless otherwise agreed to in writing, all disposal costs of samples containing hazardous substances shall be the responsibility of Client and Client shall reimburse Microbac, within thirty (30) days of invoice, for any such costs.
- Record Retention. Microbac will retain analytical data for five (5) years and financial data for three (3) years relating to the Services following transmittal of the Report (as defined below). Microbac agrees to provide Reports solely for Client’s use for the purposes disclosed to Microbac at the time of contracting.
- Ownership and Use of Reports and Other Deliverables of Microbac. Microbac may produce in the performance of the Services reports, compilations, analyses, data and other documentation and information (collectively, “Reports”). Reports provided by Microbac 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 Microbac 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.
- Project Delays and Changes. Microbac shall not be liable for delays in or failure to perform the Services caused directly or indirectly by circumstances beyond Microbac'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 inactions of Client or third parties, site inaccessibility, or inability of others to obtain material, labor, equipment, or transportation.
- Confidentiality. Unless required by law, regulation, or court order, Microbac shall not disclose to any third party the substance of any site condition or report, test, or recommendation that is furnished to Client in connection with the Services. Microbac shall consider all maps, data, reports, and other proprietary information relating to the Services and received from Client as confidential, provided such proprietary information is clearly identified in writing by Client as being confidential. Client shall consider as confidential all information and data furnished to it by Microbac that relate to Microbac’s technologies, formulas, procedures, processes, methods, trade secrets, ideas, improvements, inventions, and/or computer programs that are designated in writing by Microbac as confidential at the time of transmission and are obtained or acquired by Client in connection with this Agreement, and shall not disclose such information to any third party. Notwithstanding the foregoing, Microbac or Client may disclose and/or use confidential information or data when: (a) the information or data are actually known to the receiving party before being obtained or derived from the transmitting party; (b) the information or data are generally available to the public without the receiving party’s fault at any time before or after it is acquired from the transmitting party; (c) the information or data are obtained or acquired in good faith at any time by the receiving party from a third party who has the same in good faith and who is not known to the receiving party to be under any obligation to the transmitting party in the respect thereof; (d) the receiving party obtains a written release from the transmitting party; or (e) five (5) years have elapsed since completion of the Services.
- Litigation. All costs incurred by Microbac in order to comply with any subpoena or other official request for documents, testimony, or other purpose relating to the Services performed by Microbac hereunder shall be paid by Client. In the event that Microbac pays for any such costs directly, Client shall promptly reimburse Microbac for all such costs. Such costs shall include, but are not limited to, hourly charges for persons involved in responding to subpoenas, travel and accommodations, mileage, attorneys’ fees in connection with response to subpoenas, and all other reasonable expenses.
- Standard of Care and Warranty of Services. Microbac warrants that it shall perform the Services in accordance with generally accepted industrial hygiene, safety, health, environmental, and other applicable professional practices in effect at the time and in the locality that Microbac’s services are rendered. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, MICROBAC MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ITS FINDINGS, RECOMMENDATIONS, PLANS, SPECIFICATIONS, DRAWINGS, PROFESSIONAL JUDGMENT OR ADVICE, OR ANY OTHER SERVICES FURNISHED BY MICROBAC TO CLIENT.
- Limitations of Liability. Microbac’s total aggregate liability under this Agreement shall be limited to the amount actually paid by Client for Microbac to perform the Services. In no event shall Microbac be liable for indirect, special, consequential, or incidental damages including, but not limited to, damages for loss of profit or goodwill. Client hereby acknowledges and agrees that Microbac shall have no liability for the purposes for which Client uses the results provided by Microbac to Client.
- Termination. Either party may terminate this Agreement in the event that the other party defaults on its obligations hereunder. The party terminating the Agreement shall give the other party thirty (30) days written notice of the breach giving rise to termination. In the event that such breach is not cured within the stated thirty (30) day period, the non-breaching party may terminate the Agreement. In addition to the foregoing, Microbac may terminate this Agreement if conditions or hazards are encountered that differ materially from the expected conditions and hazards that make Microbac’s performance impracticable. In the event of termination for any reason, Microbac 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 this Agreement, Client and Microbac understand that employees and personnel from both companies will work closely together and form professional relationships. To provide for a continuity of each company’s employment relationship with its employees, Client agrees that 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 Microbac, or former person who was employed Microbac, during or for one (1) year after the performance of the Services. A violation of this provision shall be considered a material breach of this Agreement, which shall result in damages payable to Microbac by Client equal to the annual salary or equivalent prorated annual compensation for hourly employees paid by Microbac to the employee in question.
- Choice of Law; Venue. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws provisions. Any legal proceeding arising out of or relating to this Agreement shall be brought in the state or federal courts of record in Allegheny County, Pennsylvania. Each party consents to the 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.
- Assignment. Client shall not assign or transfer this Agreement to any third party for any reason without the prior written consent of Microbac, which such consent may be withheld in Microbac’s sole discretion. Any such assignment of transfer in violation of the foregoing shall be null and void and of no force and effect. This Agreement shall be binding upon Client and its permitted successors and assigns.
- No Third-Party Claims. The Services provided and Reports generated by Microbac are intended to be for the benefit of Client only, and Microbac shall have no liability with respect to any third-party claims. No person or entity is intended to be a third-party beneficiary of this Agreement.
FOR PENNSYLVANIA CLIENTS ONLY:
With respect to samples provided under the Pennsylvania Safe Drinking Water Act and the regulations promulgated thereunder, these samples are subject to Microbac’s Sample Acceptance Policy for PA SDWA Testing which can be found at: https://www.microbac.com/sample-acceptance-policy/.