When you submit a service request to Verified Testing Services (“VTS”) that is finally and accurately completed, or if you sign a quotation for services provided by VTS for the performance of designated testing and services (the “Services”), then you are the “Customer” hereunder and will be subject to these Standard Terms and Conditions for VTS services. VTS and Customer are, collectively, the “Parties” and each is a “Party”.
1. Services by VTS.
(i) Upon the completion of the Services, VTS shall issue to Customer a written report setting forth the results of the Services, including the results of any testing performed (the “Report”). The Report shall be based upon the requested testing/data as set forth in the service request(s) and/or executed quotation, applicable testing protocols and available scientific data.
(ii) Customer shall, as necessary or as requested by VTS, provide all samples, documentation and other information needed by VTS to complete the Services.
(iii) VTS will perform all Services itself or, in its discretion, VTS may engage/employ appropriate subcontractors to perform certain of the Services.
(iv) Upon completion of the Services, VTS, in its sole discretion, may dispose of product samples utilized or tested in performing the Services.
2. Customer Representation.
(i) Customer represents and warrants to VTS that each product to be tested in the performance of the Services is a product with intellectual property rights owned by and/or licensed to Customer. No products submitted for testing are submitted in violation of any third party’s patent or intellectual property rights or in violation of a license held by Customer from a third-party.
(ii) All products submitted for testing shall be submitted to VTS in a condition appropriate for the testing requested in the Services, and the product will be identical to products transferred or sold to any third party that are represented or reported to any party, agency or otherwise as covered by the Services hereunder. Customer may not submit or use the Report provided by VTS for any product with raw materials, properties and/or constituents that are different from the samples the Report is based upon.
(c) Customer is solely responsible for submitting accurate documentation and reports to any applicable governmental or regulatory agencies, whether in the United States and any state thereof, or any other country. Customer’s responsibilities include the accurate preparation and submission of any certificates or reports required under the United States Consumer Product Safety Improvement Act of 2008, as amended, and any other similar act applicable to the products tested. Customer shall also be solely responsible for the submission of accurate information and/or reports to the European Union and/or any applicable agency including any applicable requirements under the Registration, Evaluation, Authorization and Restriction of Chemicals regulation.
3. Report Requirements.
(i) The Report when issued by VTS shall be the sole deliverable to Customer for the Services provided, and shall include only those things observed and recorded by VTS at the time of the testing and performance of the Services. VTS shall be obligated to prepare the Report(s) only in accordance with the documentation, information and instructions received from Customer.
(ii) VTS is under no obligation whatsoever to monitor the products tested in the issuance of the Report, conduct other testing or evaluation, or to update the Report in any way after its issuance and delivery to Customer.
(iii) When the Services include the testing and/or inspection of Customer’s products or raw materials to be made into such products, the Report is limited to the findings of VTS as they relate to the product samples or raw materials identified in the Report and such testing and/or inspection results in the Report are not to be interpreted by Customer or any other party as being applicable to, representative of, or a guarantee of the quality or composition of other items not tested or observed by VTS.
(iv) The Report and its findings are issued by VTS for the sole and exclusive use of Customer, and no interpretation of the Report by any third party shall be binding upon VTS. The Report may not be published or disclosed by Customer for any purpose without the express prior written agreement by VTS. Customer may report the contents of the Report to an applicable governmental regulatory body if so required.
(v) Customer may not, without prior written agreement by VTS, request, publish, disclose or file a Report for use for expert testimony or similar in any legal proceeding.
4. Representations and Warranties.
(i) VTS does not, by providing the Services hereunder and/or the issuance of any Report(s), warrant, promise and/or guarantee, in any way, products or goods manufactured, produced and/or sold by Customer and/or its affilaites and/or assigns to VTS or any other third party.
(ii) VTS in the performance of the Services and/or the issuance of a Report(s) shall utilize ordinary and customary care and skill. VTS will reperform Services at no additional cost to Customer if VTS determines, in its reasonable discretion, that any errors in testing and or testing protocols caused exclusively by VTS resulted in invalid results. This is the sole warranty given by VTS hereunder. THIS WARRANTY IS IN LIEU OF ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER OBLIGATION ON THE PART OF VTS. VTS’s maximum total liability to Customer, including under the above limited warranty, shall not exceed the amount paid by Customer to VTS for the Report at issue.
(iii) VTS SHALL NOT IN ANY EVENT BE LIABLE WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS OR ASSOCIATED PRODUCTS, BUSINESS INTERRUPTION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES.
(iv) Customer agrees to hold harmless and indemnify VTS from any and all claims, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) involving personal injury, property damage and/or claims raised by any third party or governmental agency relating to products sold by Customer and for which VTS was involved, in any way, in testing such products.
5. Payment for Services.
Payment in full for the Services and/or the issuance of a Report(s) by VTS, as set forth in the signed service request and/or quotation, shall be paid by Customer within thirty (30) days after invoicing. Any additional work occasioned in any way by the late delivery by Customer of necessary information or samples shall also be due and payable to VTS. Overdue invoices shall accrue interest at the rate of 1.5% per month.
6. Relationship of the Parties.
This Agreement and the relationship created thereby does not, in any way, result in the formation or creation of a partnership, employment and/or joint venture relationship by and between the Parties.
Any of the terms or conditions of this Agreement may only be waived in writing by the Party which is entitled to the benefits thereof. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of such provision at any time in the future or a waiver of any other provision hereof.
8. Complete Agreement.
These Terms and Conditions shall govern the relationship between the Parties hereto, and if any terms in conflict between these Terms and Conditions and any other document, quotation, or service request or otherwise exist, the terms of these Terms and Conditions shall take precedence and priority. The quotation, service request and these Terms and Conditions represent the entire understanding and agreement between VTS and Customer relating to this subject matter hereof, and as such supersedes all prior contracts, agreements, arrangements, communications, discussions, representations and warranties, whether oral or written, between relating to this subject matter.
9. Binding Effect.
The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto; provided, however, that unless otherwise provided herein, this Agreement may not be assigned by any Party without the express written consent of the other Party hereto.
10. Choice of Laws.
This Agreement shall be governed by and construed under the laws of the State of Ohio, United States of America, without giving effect to its choice of law provisions. Subject to the dispute resolution provisions set forth below, any action filed in any court may only be filed in the state and federal courts covering Fulton County, Ohio, United States of America.
11. Dispute Resolution.
Any dispute, controversy, or claim arising out of or related to this transaction shall be resolved by binding arbitration. A demand for arbitration shall be served on the other party by certified mail. Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator. The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association (“AAA”). If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with the AAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA. In all circumstances, the arbitration shall take place in Fulton County, Ohio. In the event of any action or proceeding related to this transaction, and VTS is determined to be the prevailing party with regard to some or all claims, Purchaser agrees to pay all of VTS’s attorneys’ fees and litigation costs up through and including any appeal.