Last updated: January 11, 2018 at 5:09 pm
The terms “you” and “your” refer to the Customer. The terms “we”, “our”, and “us” refer to AMPAC Analytical.
The following Terms and Conditions apply to all transactions for laboratory testing and consulting services between Customer and AMPAC Analytical (AMPAC) unless otherwise specified in writing by an officer of AMPAC Analytical:
- By checking the box for the “Terms and Conditions”, you acknowledge that you have read and agreed to all of the terms and conditions in this Agreement. You have agreed to become a party to, and legally bound by, this Agreement for payment and performance of services by AMPAC. If you do not agree to all of the terms of this Agreement and decline to click on the “Terms and Conditions” checkbox, you will not be entitled to access the site or use the services. If you have any questions regarding this Agreement, please contact AMPAC via email at firstname.lastname@example.org.
- Terms and Conditions: The Customer agrees that when placing an order with AMPAC, that AMPAC’s final price quotation, these Terms and Conditions, the Customer’s purchase order (excluding any terms and/or conditions that may be contained in the Customer’s purchase order), the Sample Submission Form and AMPAC’s confirmation to perform services shall constitute the entire contract between the Customer and AMPAC (the “Agreement”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the Services hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. A purchase order issued to AMPAC shall not constitute a binding contract unless and until it is accepted and acknowledged by AMPAC. The Customer accepts and agrees to all of AMPAC’s Terms and Conditions in lieu of the Customer’s terms and conditions. AMPAC will not be bound by any conflicting terms contained in any acceptance or order submitted by Customer on all orders placed with AMPAC unless otherwise agreed to in writing by both parties. Orders submitted without a quotation shall be subject to AMPAC’s default pricing for the current year. Prices are subject to change at AMPAC’s sole discretion. AMPAC shall be entitled to increase the price of services to the Customer without prior notice unless the Customer has a valid quote from AMPAC for such specific service quoted.
- Payment Terms: The Customer agrees to pay AMPAC with any applicable fees and expenses in accordance with this Agreement.
- 3.1. Payment in advance is required for all Customers except those whose credit has been established at AMPAC’s sole discretion, and AMPAC may cancel, reduce or refuse to extend additional credit at any time, with or without cause of any kind. The Customer agrees that the amount reflected in the invoice as issued by AMPAC shall be due and payable unconditionally in (a) on acceptance of the Customer’s purchase order by AMPAC; (b) if the Customer is a credit approved Customer, within 30 days from the date the invoice was issued by AMPAC or as otherwise agreed to by Customer and AMPAC in writing; or (c) prepayment prior to commencement of work if required by AMPAC. A late payment fee of 1.5% per month (or the maximum amount permitted by law if less than 1.5%) is added for any unpaid balance(s) not paid by the due date, compounded monthly, from the due date of payment.
- 3.2. AMPAC reserves the right to cease all work in the event the Customer does not pay its invoice(s). In the event of default in payment for services rendered, the Customer is responsible for reasonable collection and/or legal fees. AMPAC will make all reasonable efforts to initiate good faith discussions with the Customer to resolve such payment issues.
- 3.3. The Customer agrees to accept changes to the prices in the Agreement and to any other aspect of the services to be performed by AMPAC resulting from changes to the scope of services, specifications, assumptions, or requirements that arise during the performance of the services, provided that such price changes do not arise as a result of AMPAC’s failure to either perform the services in a commercially reasonable manner or otherwise act in good faith. Any such price changes will be memorialized in change orders to be executed by both parties.
- 3.4. Prices quoted by AMPAC shall remain in effect for ninety (90) days unless otherwise stated in the quote or agreed to by the parties in writing and are subject to change after that period. The prices contained in a quotation supplied by AMPAC apply specifically to the Customer, project or test named on the quote in accordance with stated specifications and documentation provided to AMPAC at the time of quotation. Any subsequent testing, repeat testing, additions, and omissions to the test program or parts thereof shall be additions to the Customer’s initial quote unless otherwise agreed to in writing between the parties. In addition to the initial quoted services to be provided by AMPAC, the Customer shall be obligated to pay for any additional or subsequent testing, repeat testing, additions, and omissions to the test program or any parts thereof provided by AMPAC. Sample return fees may apply. Standard sample disposal fee is $45.
- Acceptance of Project or Test Reports: All reports and letters issued by AMPAC are for the exclusive use of the Customer to whom they are addressed. No other entity or person may rely upon or use such letter or report without the written consent of AMPAC. AMPAC reports apply only to the specific samples tested under stated test conditions and protocols and test results are not necessarily indicative of the qualities of apparently identical or similar test or conditions. AMPAC shall have no liability for any deductions, inferences or generalizations drawn by the Customer or others from AMPAC’s reports.
- 4.1. If the Customer requests verification of any part of the project or test report, AMPAC shall be notified within five (5) days of submission of the report to the Customer. Failure to notify within this five (5) day period acknowledges acceptance of the report. Should additional work be required for verification purposes, AMPAC shall be entitled to the reasonable value of the additional work performed by AMPAC. Payment for any project or test report or other AMPAC invoice shall not be conditioned upon acceptance and/or approval of a third party or the results of the test.
- Project or Test Cancellation / Termination: This Agreement may be canceled or terminated by the Customer at any time for any reason. The Customer must provide AMPAC with written notice (via email or formal letter) and directions regarding sample return upon cancellation or termination. If a test or project is canceled by AMPAC, a written acknowledgment (via email or formal letter) will be addressed to the Customer.
- 5.1. AMPAC begins testing upon receipt of samples from the Customer. If the Customer interrupts or suspends testing for any reason, the completed portion of the work, including (but not limited to) supplies, materials, labor, and equipment utilization shall be billed to the Customer. In such circumstances where AMPAC agrees to place samples on hold, AMPAC may bill the Customer stand-by charges, up to the full cost of established testing rates including storage fees, until the testing resumes or is terminated by the Customer. If the testing is terminated by the Customer, the Customer shall pay for all work performed by AMPAC up to cancellation and AMPAC may impose a cancellation fee of no less than 15% for the un-billed portion of the project.
- Rush Analyses: A surcharge is added if rush analysis is requested. The surcharge(s) are subject to change depending on the analysis to be performed. Rush analysis service is offered contingent upon availability and prearrangement.
- Premium Rush: 3 Business Days (200% surcharge)
- Rush: 5 Business Days (100% surcharge)
- Standard:10 Business Days
- Delivery of Samples: Upon timely delivery of samples, AMPAC will use commercially reasonable efforts in meeting mutually agreed upon turnaround times. The risk of loss or damage to the sample during shipment to and from AMPAC remains with the Customer. AMPAC will advise the Customer of samples which are missing or received in damaged, contaminated, or improperly preserved condition. The risk of loss or damage to the sample will be assumed by AMPAC at the time of possession when the sample is delivered to either the AMPAC Fine Chemicals facility or the AMPAC Analytical facility. All samples delivered to AMPAC must contain the sample in its required and necessary packaging. Secondary containment is required by AMPAC Analytical for sample receipt. The Sample Submission Form (electronically submitted or printed and submitted with sample) and the Safety Data Sheet (SDS) are also required with sample delivery. All shipments sent to AMPAC from outside the United States must pass through U.S. customs. There will generally be a cost associated with shipping to/from AMPAC that cannot be determined until the shipment arrives. Please note that all U.S. and International Customs Fees, Taxes, Tariffs and related costs will be billed to the Customer on the final invoice. Note: All transportation fees apply with an additional 10% handling fee. For instance, custom fees depend upon country of origin and are determined at the time of shipment. That value would be added to the invoice + 10% of that value.
- Scheduled Dates for Performance: The scheduled dates for performance represent our best estimate and are not guaranteed, as unforeseen delays may occur. AMPAC will not be held liable to the Customer, nor be deemed to have breached this Agreement for errors, delays, or other consequences arising from the Customer’s failure to provide necessary documents, materials, or information in a timely manner. Nor will AMPAC be liable if the Customer fails to reasonably cooperate with AMPAC to perform the required services and obligations. Such failures will automatically extend any timelines. Both parties agree to use good faith efforts to minimize the timing disruption for the scope of work.
- Hazard Communication: The Customer has the responsibility to inform AMPAC of any hazardous characteristics known or suspected about the sample based on the sample collection site or circumstances. Likewise, information on hazard prevention and personal protection should be provided to AMPAC. The cost of returning the hazardous sample may be invoiced to the Customer.
- AMPAC’s Right to Refuse any Sample: AMPAC reserves the right to refuse to accept any sample, which in the judgment of AMPAC is likely to pose an unreasonable risk in handling and/or analysis. The Customer represents and warrants that any sample containing any hazardous substance which is to be delivered to AMPAC is labeled, packaged, manifested, transported, and delivered to AMPAC in accordance with the most current state and federal regulations.
- Quality Assurance: AMPAC will perform services in accordance with current Good Manufacturing Practice (cGMP) guidelines. It shall be the exclusive responsibility of the Customer to confirm that AMPAC’s standard practices will meet the needs of the Customer prior to placing a service order. In the event the Customer desires an alternative to these standard practices, such requests must be made in writing prior to sample acceptance.
- Debarment: AMPAC agrees that, to the best of its knowledge, none of AMPAC employees have been debarred by the FDA and we will not knowingly use in any capacity in connection with this Agreement the services of any person debarred.
- Retention of Samples: Samples may be destroyed thirty (30) days after the date the project or test results have been reported, unless the Customer indicates otherwise in writing and prepays before the expiration of said thirty (30) day period the entire cost of any storing, packaging and shipping the sample(s) by AMPAC.
- Retention of Reports: Unless otherwise agreed in writing, AMPAC shall retain copies of the project or test reports for a period of twenty (20) years, or as required by law, with a computer backup. File storage beyond twenty (20) years shall be billed at an annual rate of $30.00 per study or such other rate set by AMPAC. If storage fees are not paid by Customer when due AMPAC shall have the right to delete or destroy the file. If the Customer requests additional copies of the reports during the retention period, an additional charge will apply for the preparation and printing of such reports.
- Confidentiality: AMPAC maintains strict confidentiality in all of our dealings with Customers. Any information regarding project or test is shared only with the individual(s) designated on the Sample Submission Form, unless authorization is received in writing. Confidentiality Agreements are willingly provided. In any instance where information is subpoenaed by and must be released to a regulatory or legal body, AMPAC will make reasonable efforts to notify Customer prior to disclosure. Likewise, the Customer agrees to respect all such relationships of trust.
- 15.1. Both parties agree to not disclose confidential information to any third parties without express written permission of the disclosing party. Both parties also agree to not use such confidential information for any purpose other than the purposes of this Agreement. The Customer agrees it will not use AMPAC’s name and/or data in any manner which might cause harm to AMPAC’s reputation and/or business. Under no circumstances is the name of AMPAC to be published, either alone or in association with that of any other party, without its approval in writing.
- Copyrights/Intellectual Property: The Customer acknowledges and agrees that all testing protocols or processes used to generate project or test results are the sole ownership of AMPAC. No rights or ownership of AMPAC’s copyrights or other intellectual property of AMPAC is transferred by invoicing the Customer for protocols used in the performance of the service by AMPAC. Customer agrees that it shall not infringe upon any of the intellectual property rights of AMPAC.
- Reservation of Ownership: Nothing in this Agreement shall be construed as a sale or transfer of AMPAC’s copyrights, trademarks or any other intellectual property owned or held by AMPAC. Until such time as the Customer has paid AMPAC in full with respect to any services provided by AMPAC, the license to use any test results or any data related thereto shall be prohibited and shall remain the property of AMPAC. AMPAC shall, in its sole discretion, without notice to the Customer, be entitled to take possession of any such reports which have not been paid for and in respect of which payment is overdue, in which event the Customer shall not be entitled to a credit in respect of the services not paid for.
- Change of Ownership: The Customer shall notify AMPAC, in writing, within ten (10) days of any change in ownership of the Customer’s business. Failing such notice the entire balance shall become due and owing. If deemed necessary by AMPAC in its sole discretion, Customer may be required to resubmit a credit application.
- Warranty and Limitation of Liability: In accepting analytical work, we warrant the accuracy of test results for the sample as submitted. THE FOREGOING EXPRESSED WARRANTY IS EXCLUSIVE AND IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. WE DISCLAIM ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING A WARRANTY OF FITNESS FOR PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY. IN NO EVENT SHALL AMPAC BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT OR GOODWILL REGARDLESS OF (A) THE NEGLIGENCE (EITHER SOLE OR CONCURRENT) OF AMPAC AND (B) WHETHER AMPAC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
- Third Party Claims: CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS AMPAC AND ITS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AGENTS AND SUCCESSORS OR ASSIGNS (EACH AN “INDEMNIFIED PARTY”) FROM ALL LOSSES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF, OR RELATED TO, CLAIMS ASSERTED BY THIRD PARTIES THAT RELATE TO THE TESTING RESULTS OR TESTING DATA PROVIDED BY AMPAC TO CUSTOMER, OR THE MANUFACTURE, MARKETING, OR SALE OF CUSTOMERS PRODUCTS OR THAT RELATE TO THE SERVICES.
- Customer Remedies: AMPAC will provide services in accordance with this Agreement and AMPAC will not have any responsibility other than to exercise reasonable skill and care in the performance of services. In the event an arbitrator described in Section 23 below makes a final determination that AMPAC has failed to comply with such standards of conduct in providing services and that such failure directly caused the Customer harm, AMPAC will be responsible to compensate the Customer for such direct harm, PROVIDED, HOWEVER, that the amount of such compensation will not exceed the fees paid by the Customer to AMPAC for the specific portion of the services rendered that directly caused the Customer harm.
- Force Majeure: AMPAC shall not be liable or responsible, nor be deemed to have defaulted under or breached this Agreement, for any damages, delay, or failure to perform resulting from unforeseen force majeure events beyond our reasonable control including, but not limited to, (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.
- Dispute Resolution: The parties shall first attempt in good faith to resolve any dispute by negotiation and consultation between themselves. In the event that such dispute is not resolved on an informal basis within thirty (30) business days after one party provides written notice to the other party of such dispute (“Dispute Notice”), either party may, by written notice to the other party (“Escalation to Executive Notice”), refer such dispute to the executives of each party. If the Executives cannot resolve any dispute during the time period ending fifteen (15) business days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either party may initiate non-binding mediation under this Section.
BINDING ARBITRATION AS A FINAL RESORT. ANY DISPUTE OR DISAGREEMENT, OTHER THAN NONPAYMENT OF AMPAC’S FEES OR INVOICES AND AS OTHERWISE SET FORTH BELOW, RELATING TO THE CUSTOMER OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR UNDER ANY AGREEMENT BETWEEN THE PARTIES, WILL BE SETTLED BY CONFIDENTIAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”) PURSUANT TO THE AAA COMMERCIAL ARBITRATION RULES AND PROCEDURES. THE ARBITRATION VENUE WILL BE SACRAMENTO, CALIFORNIA. THE ARBITRATION WILL BE CONDUCTED BEFORE A SINGLE ARBITRATOR. THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO ADD, CHANGE, OR DISREGARD ANY TERM OF THIS AGREEMENT OR MAKE AN AWARD AGAINST AMPAC OF ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, UNJUST ENRICHMENT, AND/OR LOST PROFITS), OR EXCEED THE REMEDIES PROVIDED BY SECTION 21, OR THE LIMITATION OF LIABILITY AND RELEASE AND WAIVER DESCRIBED IN SECTIONS 19 AND 20. THE ARBITRATOR’S DECISION WILL BE BINDING AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED BY A COURT OF COMPETENT JURISDICTION. ARBITRATION WILL BE THE FINAL REMEDY FOR ANY DISPUTE BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT OR ANY AGREEMENT ENTERED INTO PURSUANT TO THIS AGREEMENT, PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL PREVENT ANY PARTY FROM SEEKING A COURT ORDER FOR INJUNCTIVE RELIEF (IN ADDITION TO OTHER REMEDIES) TO STOP OR PREVENT MISUSE OR MISAPPROPRIATION OF AMPAC’S PROJECT OR TESTING REPORTS, TRADEMARKS OR COPYRIGHTS, CONFIDENTIAL OR PROPRIETARY INFORMATION, OR TESTING DATA, OR INFRINGEMENT OF ITS INTELLECTUAL PROPERTY, IN A COURT OF LAW.
- Applicable Law and Venue: THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS. You agree that any cause of action you may have with respect to your use of the site, the service or the content must be commenced within one (1) year after the claim or cause of action arises.
- Non-Waiver of Rights: Failure to act on any breach of any of the provisions hereof by Customer or other act, indulgence or grace by AMPAC shall not in any way operate as or be deemed to be a waiver by AMPAC of any rights under this Agreement, or be construed as a novation thereof.
- Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
- Survival: Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to Sections 3, 15, 19, 20, 21, 23, and 24.
- Entire Agreement: Subject to Section 2, this Agreement contains the entire understandings of the parties with respect to the subject matter herein, and supersedes all previous agreements (oral and written), negotiations, arrangements, understandings, and discussions with respect to the subject matter of this Agreement and except as expressly provided herein is intended by the parties to be the complete and exclusive statement of the terms and conditions of this Agreement.
- Severability: If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement. The remainder of this Agreement shall be valid and enforceable to the maximum extent possible.
- Notices: Except as explicitly stated otherwise, any notices between the Customer and AMPAC shall be sent via e-mail to us or to the email address Customer provides during the registration process, or such other address as the parties may specify. Notice shall be deemed given 24 hours after an e-mail is sent, unless the sending party is notified that the email address is invalid. Alternatively, notice may be sent by certified mail, postage prepaid and return receipt requested, to the address specified by each party. In such case, notice shall be deemed given three (3) days after the date of mailing.
- Electronic Signature: This Agreement and any related agreement between the parties may be executed and delivered by email, PDF or by means of other electronic signature and such email, PDF or other electronic signatures shall be deemed to be valid and original.
AMPAC reserves the right, at our sole discretion, to change or modify the Terms and Conditions at any time without prior notice or consent. It is the Customer’s responsibility to review the Terms and Conditions prior to submitting a Sample Submission Form. Any changes to the terms will be effective immediately upon public posting and can be indicated by the modification date. Changes to the terms will apply only to orders placed on or after the applicable modification date. By checking the box for the “Terms and Conditions”, you acknowledge that you have read and agreed to all of the terms and conditions.