Terms and Conditions
Responsibilities of ART.
Before performing any work, American Research and Testing Inc. (“ART”) shall examine and review client’s project request. If such request is incomplete or unclear, ART shall consult with client before proceeding with the work. Client shall provide such additional information requested by ART as may be necessary for the satisfactory performance of the work covered by each analysis request.
ART shall perform its work in accordance with accepted trade standards and customs as applicable, and reserves the right to modify methods as necessary based upon experience and/or current scientific literature. Where specific standard methods do not exist for a project, ART may adapt, customize, or develop appropriate methods, following relevant trade customs. If client directs a manner of making tests that varies from ART recommended procedures, client shall hold ART harmless from all claims, damages and expenses arising out of such direction. ART shall furnish all supervision, labor, facilities, equipment, materials, and supplies necessary or desirable to perform its work, but reserves the right to delegate performance of some services to a qualified subcontractor.
Deliverables for testing services shall be a report that identifies the client, the sample, the test procedure, and the results, and where applicable, a conclusion. Deliverables for consulting services may be written or oral communications. Deliverables for SDS services shall be an OSHA/GHS-compliant Safety Data Sheet. Deliverables for educational and training services shall be a certificate of participation or proficiency, as applicable.
Test results apply only to the tested samples, and should not be construed to represent the entire lot. An exception to this condition is when items in a lot have been independently sampled and tested according to statistical sampling protocols.
Samples accepted by ART shall remain the property of client while in the custody of ART. ART shall retain samples for a period of thirty (30) days following the date of submission of its report to client. ART shall extend the retention period if client so requests and pays for additional storage. Following the retention period, ART will dispose of samples in an environmentally responsible manner. ART reserves the right to charge for disposal of samples it considers difficult to handle or, at the option of ART, to return samples to client in lieu of disposal. All such samples returned shall be accepted by client.
ART is responsible for the health and safety of its employees. Client shall supply a current SDS for all samples, and notify ART of any hazardous substances believed by client to be present in the samples that may put ART employees at risk. ART may refuse acceptance or revoke acceptance of samples if it determines they present a risk to health, safety or the environment or that ART is not authorized to accept them. Client shall promptly remove from ART’s facilities any sample for which ART revokes its acceptance.
Use of Reports, ART Logo, ART name.
Unless otherwise agreed by ART in writing, client shall use reports prepared by ART only for the purposes disclosed to ART at the time of contracting. ART name, logo, or report excerpts are not to be used as product endorsements or in advertisements without express written permission from ART. The client may include a copy of the entire ART report with printed or on-line marketing materials without further permission.
ART shall maintain records and supporting documents for work for a period of five (5) years after completion of said work. ART shall be the owner of all such documents; provided, however, that copies may be supplied to client upon request. Such copies will be provided for a nominal charge.
ART shall not provide results or information on client work to any party other than client, unless client, in writing, requests information to be provided to a third party or unless ART is legally compelled to disclose the information. ART will not use confidential information or results of a project or consultation to compete with the client. Confidential information does not include information that is in the public domain, information which was known by ART prior to disclosure, or information later disclosed to ART by a third party that is not in violation of any obligations of confidentiality from or through Client.
An established client shall pay in full the net amount of each invoice submitted by ART within thirty (30) days of the date thereof. Amounts not paid when due shall bear interest at the maximum rate permitted by law from the date due until the date of payment. At the discrimination of ART, some projects – especially for new clients, out-of-state clients, clients who have failed to pay within Net 30, litigation support, product development, investigations, and consulting services – may require a retainer or COD payment terms. All off-shore clients shall pay in advance by direct bank deposit in US funds.
Termination or Suspension.
Client shall have the right to cancel orders placed with ART or suspend work on orders, but shall be obligated to pay for any work completed and expenses incurred during the period of time prior to cancellation or suspension. A proposal by client to change a project scope may be regarded by ART as an order to suspend work until agreement is reached on the effect of such change on the compensation payable to ART and other relevant issues raised by the change.
Right to Stop Work.
In the event client fails to pay for services rendered within thirty (30) days after the date of any invoice from ART, then, in addition to any other rights or remedies provided by law, ART shall have the right to suspend any further work for client and to retain any and all of its work product not yet delivered to client. Client shall have no right to use the work of ART for any purpose until the same has been paid for in full.
Alternative Dispute Resolution.
All disputes between ART and client shall be submitted to alternative dispute resolution (“ADR”) as a condition precedent to litigation and other remedies provided by law. ART and client each agree to exercise good faith efforts to resolve disputes through mediation unless both parties agree to another ADR procedure.
If either party to this agreement makes a claim against the other as to issues arising out of the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses of litigation, including reasonable attorneys’ fees. If ART brings a court action against client to collect the invoiced fees and expenses of ART, client agrees to pay the reasonable collection expenses, including attorneys’ fees, incurred by ART.
Time Limit For Making Claims.
ART shall not be liable for damages unless suit is commenced within two (2) years of the date of injury or loss or within two (2) years of the date of completion by ART of its services, whichever is earlier. In no event shall ART be liable for damages unless it has been notified by client of the discovery of any claimed negligent act, error, omission or breach within thirty (30) days of the date of its discovery and unless client has given ART an opportunity to investigate and to recommend ways client may mitigate its damages.
Limitation of Liability.
In no event shall ART be liable for any incidental or consequential damages of any kind, whether or not arising out of negligence. The aggregate liability of ART for its negligent acts and omissions and for its non-intentional breach of the agreement with client shall not exceed the fee paid to ART for its services, and client agrees to indemnify ART from all liabilities to others in excess of that amount. The foregoing limitation on ART’s liability does not apply to losses arising from the gross negligence of ART or intentional breaches of contract.
Subject to the limitation on liability set forth above, ART agrees to indemnify and hold client harmless from and against demands, damages and expenses caused by ART’s negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom ART is legally responsible. Client shall indemnify and hold ART harmless from and against demands, damages and expenses caused by client’s negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom client is legally responsible.
Response to Legal Process.
Client shall compensate ART for its services and expenses if ART is required to respond to legal process related to its services for client. Expert Witness Fees shall apply, and the Client shall pay a retainer in advance. Compensable services shall include hourly charges for all ART personnel involved in the response, the preparation of the testifier, appearances related to the legal process, and attorneys’ fees reasonably incurred in obtaining advice concerning the response.
ART shall, while performing its work for client, maintain in force workers compensation insurance in the amount required by law, as well as general liability insurance and professional liability insurance.
ART does not discriminate or allow harassment against any employee or applicant for employment because of race, color, national origin, religion, sex, sexual orientation, gender identity, gender expression, age, physical (dis)ability, veteran status, or for any other reason prohibited by law.
Neither ART nor client shall have any liability for nonperformance caused in whole or in part by causes beyond their reasonable control. Such causes include, but are not limited to, forces of nature, civil unrest and war, acts of authorities and failure of subcontractors that could not reasonably be anticipated.
Relationship of the Parties.
ART shall perform work for client as an independent contractor.
Entire Agreement; Governing Law.
Unless modified by a written agreement signed by client and ART, these terms and conditions shall constitute the entire agreement between the parties as to the matters herein addressed, any prior course of dealing or trade custom notwithstanding. The agreement between ART and client shall be governed by California law.