Description of the Terms of Service for Sound Microbiology Laboratory:
1. Fees and Costs. Fees and costs for services provided by Sound Microbiology Laboratory, LLC (“SML“) shall be performed and billed in accordance with SML’s published fee schedule in effect at the time of the agreement of the parties to proceed.
2. Periodic Statements. Periodic statements may be rendered to Client indicating fees and costs incurred to the date indicated. A late payment charge will accrue on the unpaid account balance at the rate of 1.5% per month. Balances will be considered past due 20 days after date of billing. Payments received from Client shall be first applied to any late charges and then to costs and fees. SML may suspend work if Client fails to make timely payment of its invoices.
3. Samples. Client shall provide, together with the submission of its samples, a completed and signed chain of custody form with adequate instructions describing the type of analysis requested (“the Scope of Work”) and a complete and thorough written disclosure of known or suspected presence of any hazardous substance. “Hazardous substance” means any material or substance regulated under any federal, state or local law, regulation or ordinance enacted for the protection of human health and safety or the environment. Client shall be liable and shall pay all costs and damages resulting from (a) Client’s failure to disclose to SML that a sample contained or was suspected to contain a hazardous substance; (b) Client’s failure to comply with any local, state or federal law regarding the sample; or (c) any action on the part of Client which interrupts SML’s ability to process work, contaminates SML’s instruments or work areas or necessitates any clean-up or recovery on the part of SML.
If Client or SML requests, or one of the parties believes that a change to the Scope of Work is necessary, (a “Change”), the parties shall comply with the following procedure to reflect a Change in the Scope of Work: a. The party requesting or noting the Change shall write a description of the change and give the other party that writing (the “Change Notice”); b. Before proceeding with the changed work, unless excused by an emergency, SML shall provide Client with a fixed-price written estimate of the cost and time impact of the requested Change; c. Client and SML shall execute a Change Order confirming their agreement with the Change, the fixed-price cost, and the extension of the date for completion, if any. If the Change cannot be performed on the fixed-price basis, the Change Order shall identify the agreed method of compensation.
4. Sample Delivery Acceptance. “Sample Delivery Acceptance” is defined as the date when SML has received and inspected the samples, received project guidance regarding the work to be done, resolved any discrepancies in the chain of custody forms, and determined that it can proceed with the defined work. SML reserves the right to refuse or reject any sample that it believes is: (i) of unsuitable volume; (ii) a health, safety, environmental or other risk; (iii) unable to meet holding times due to the passage of half the holding time for the requested test; or (iv) not suitable to render a reliable test result.
5. Risk of Loss. Prior to Sample Delivery Acceptance, the entire risk of loss or damage to samples remains with Client, except where SML provides courier services. In no event will SML have any responsibility or liability for the action or inaction of any carrier shipping or delivering any sample to or from SML premises. Client is responsible for determining whether or not the sample it is shipping contains a hazardous substance 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.
6. Confidentiality. SML will exercise all reasonable efforts to maintain Client’s confidentiality with regard to business or technical information it receives in connection with its performance for Client. SML will use the information it receives about Client solely for the purpose of providing services to Client. Client shall treat all information and data it receives about SML as proprietary and confidential. Client shall maintain in strict confidence all such information, including but not limited to information concerning technology, procedures, and methods used by SML, formulas, trade secrets, ideas, computer programs and inventions. Client shall not disclose, and shall prevent disclosure of, confidential information to any third party without express written permission being granted by SML.
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.
7. Record Retention. SML will retain records pertaining to the work performed for Client for a period of six (6) years following the issuance of a work report. Should Client desire SML to maintain the records in excess of six (6) years, Client must notify SML in writing, and pay SML an additional record retention charge as set forth in SML’s fee schedule then in effect at the time of the request.
8. Methods. Where the services to be provided by SML require the use of analytical methodologies, SML 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. SML may deviate from these methodologies where, in SML judgment, it is necessary or appropriate to do so. The nature or compositions of a sample are examples of factors that may require SML to deviate from these methodologies.
9. Holding Times. SML will initiate preparation and/or analysis within holding times, provided Sample Delivery Acceptance occurs within one-half (1/2) of the holding time for the test. For analyses which do not have holding time requirements, SML shall use its best efforts to process samples as soon as practicable, while the sample is viable, provided that SML reserves the right to reject the sample as being untimely received. In cases where Sample Delivery Acceptance is not made within these time periods and SML does not reject the sample, SML will use best efforts to meet the holding times. SML shall not be responsible where sample viability is reduced due to shipping time or conditions in transit.
10. Limited Warranty; Remedy. The sole and exclusive warranty for SML’s services is that such services shall be performed to industry standards. Client’s sole and exclusive remedy for the breach of warranty in connection with any services performed by SML, will be to repeat any services performed, contingent on Client providing, at the request of SML and at Client’s expense, additional sample(s) if necessary. Any reanalysis requested by Client generating results consistent with the original results will be at Client’s expense. This warranty constitutes the sole and exclusive warranty made by SML and there are no other warranties, including but not limited to the implied warranty of merchantability and warranty of fitness for a particular purpose and all such warranties are expressly disclaimed and excluded by the parties. SML shall not be liable for any incidental or consequential damages, including liquidated, delay damages, or other damages, and the remedies herein are expressly agreed to be exclusive. In the case of any finding of liability, by a court of competent jurisdiction, on the part of SML for damages incurred by Client, Client agrees to limit an award for damages, to one hundred dollars ($100.00) or to the fee charged to Client by SML 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 without limitation, those for negligence, shall be deemed waived unless suit thereon is filed within one (1) year after SML’s completion of those services giving rise to Client’s claim(s). Under no circumstances, whether arising in contract, tort, or otherwise, shall SML 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.
11. Force Majeure. If SML is delayed at any time in performing Services by an act, failure to act or neglect of Client or Client’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 Client, 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 SML’s reasonable control; by delay authorized by Client and agreed to by SML, then the time for completion of such Services shall be extended based upon the impact of the delay. SML shall receive an equitable compensation adjustment from Client if the delays caused by any of the above result in changes, require additional services, or result in additional costs to SML.
12. Ownership of Data. Data or information provided to SML by Client shall remain Client’s property. Upon full payment to SML for all services provided by SML, data or information generated by SML for Client shall become Client’s property. SML will retain exclusive ownership of any and all analytical methods, QA/QC protocols, and equipment developed by SML for performance of work by SML.
13. Challenge to Results. Client shall pay SML for all services performed on Client’s behalf and for all results utilized by the Client, regardless of any allegation on the part of Client that the results issued by SML did not conform with SML’s responsibilities as set forth herein. In every instance, SML shall be given the opportunity to defend its data directly with any person or entity challenging its results. Should SML be prohibited or hindered from directly defending its data, all sums owed to SML by Client shall be immediately due and payable and no refund for sums paid by Client will be issued by SML.
14. Sample Disposal. Where samples are not consumed in the analytical process, SML shall dispose of Client’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 Client at its’ own expense.
15. Litigation Related Services and Expenses. Client agrees to pay and/or reimburse SML for all costs and fees incurred, including the time spent by SML employees and officers, should SML be required to respond to legal process related to services it has provided to Client or should Client request file searches, additional reporting, or a consultation that is above and beyond that usually offered in the normal course of business. Client agrees to pay for time expended by SML employees and officers in accordance with their hourly rate in effect at the relevant time. In addition, Client agrees to pay all reasonable legal fees incurred by SML that relate to SML’s response to legal process related to services it has provided to Client. Client’s agreement to pay and/or reimburse SML for the litigation services and costs referenced above shall remain in full force and effect for 10 years from the last date that SML completes providing services for Client.
16. Governing Law; Entire Agreement. This agreement shall be governed in all respects by the laws of the State of Washington. Both parties hereto warrant that there are no other agreements, express or implied, between them, which govern or affect this transaction, except those contained in this agreement, and only written Change Orders and/or contract amendments which may be executed by the parties hereto in the future are effective to change this agreement. This agreement is binding upon/shall inure to the benefit of the heirs, agents, successors and assigns of the undersigned.
17. Counterpart Originals; Facsimile/Emails. This Agreement may be executed in any number of counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and when taken together with the other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all parties. Facsimile transmission or e-mail transmission of any signed original document, and retransmission of any signed facsimile transmission or e-mail transmission, shall be the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmitted signatures by signing an original document.
18. 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 of this Agreement, the intent of the parties being that the provisions be severable. The section headings contained herein are intended solely for convenient reference and shall not define, limit or affect in any way this agreement.
19. 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.
20. Collection. Client agrees to pay reasonable attorney fees and the costs of collection in the event any action is necessary to collect any fee, cost or disbursement through a collection agency or otherwise. Client consents and agrees to venue in the Kitsap County District or Superior Court.