Terms & Conditions
ANALYTICAL SERVICES
SVTC TECHNOLOGIES, LLC - 3901 North First Street, San Jose, CA 95134 - [REV 091011]
1. Applicability. Except as otherwise mutually agreed in writing, these Terms and Conditions shall govern analytical services provided by SVTC. These Terms and Conditions supersede all previous communications, representations, or agreements, either verbal or written, between the parties. These Terms and Conditions shall override any additional, inconsistent or conflicting terms, whether printed, referenced, linked, or otherwise set forth in any purchase order or other documents provided by Customer to SVTC.
2. Services. SVTC agrees to perform the services described in the proposal/quotation to which these Terms and Conditions are referenced. Unless specifically agreed, completion times are not assured. SVTC will electronically transmit the results of the analytical services which shall constitute full performance of SVTC’s obligations.
3. Law. This agreement shall be interpreted in accordance with the laws of the State of California except for that portion known as conflict of laws. The invalidity or unenforceability, in whole or in part of any provision shall not affect the validity or enforceability of the remainder of the Terms and Conditions. Waiver by SVTC of any provision or of any breach or obligation shall not constitute a waiver of such provision on any other occasion. Modifications to this Agreement must be mutually agreed in writing.
4. Methodology. (A) Services provided by SVTC: Customer acknowledges that analytical services may be outsourced to subcontractors of SVTC at SVTC’s sole discretion. Industry standard methodologies will normally be used, however, SVTC reserves the right if necessary to deviate from standard methodologies. Customer shall provide a prior written disclosure of known or suspected hazards or toxicity and shall provide written instructions concerning handling. Customer warrants that all submissions will be packaged, labeled, transported and delivered in accordance with applicable laws. Customer will be responsible for disposal. (B) Services performed by Customer: With SVTC’s prior written consent and upon satisfactory completion of training on the applicable equipment, Customer may be allowed limited access to SVTC facilities to perform its own analytical services; if Customer damages any SVTC equipment, Customer agrees to be liable for all damages, repairs, and replacement, to SVTC. Customer acknowledges that SVTC shall have the right to require Customer to maintain and keep in force, specific insurance to protect SVTC against damages from Customer’s use of SVTC equipment. SVTC shall have no obligations regarding the performance or results of Customer’s analytical work.
5. Warranty. SVTC warrants only that it will perform analytical services and prepare reports in a commercially reasonable manner. No specific results are guaranteed. Preliminary results may be given in advance of a final report. If provided to Customer, preliminary results are subject to change and final review by SVTC and Customer's use of preliminary results shall be at Customer's risk. SVTC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
6. Liability. Customer’s exclusive remedy in the event of a breach of this Agreement shall be that SVTC will repeat the services at its own expense, and SVTC shall have no other liability whatsoever. All claims shall be deemed waived unless made in writing and received by SVTC within sixty (60) days following completion of services. Results are provided only for the use and benefit of SVTC Customers. Customer shall indemnify SVTC from any claims by third parties arising out of or related to the services provided under this agreement. IN NO EVENT SHALL SVTC BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER CUSTOMER, FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON SVTC HEREUNDER, AWARDED DAMAGES SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO SVTC FOR THE SERVICE TO WHICH SUCH LIABILITY RELATES. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be different.
7. Handling. SVTC shall have no responsibility or liability for the actions of any carrier or for delivery problems to or from SVTC. All shipment arrangements will be at Customer's expense. If not picked up, submissions will be held for a limited time after which they will be destroyed unless otherwise agreed in writing. Disposal of hazardous materials is the responsibility of the Customer. SVTC reserves the right to refuse accept any submission if SVTC determines in its sole discretion, that a submission is of insufficient volume, or that it poses a risk due to health, safety, environmental or other factors, even if not a hazardous substance or notice was made by Customer.
8. Fees. Services performed will be billed in the amounts quoted or as stated on applicable SVTC Fee Schedules. If Customer notifies SVTC to terminate services prior to completion, Customer shall remain liable for all services commenced prior to receipt of notice plus reasonable expenses related to early termination and if applicable, the recovery of any discounts recalculated taking into account terminated portions. Payment terms are stated on SVTC’s invoice and unless otherwise agreed, are due within thirty days. Charges do not include any sales, use or other taxes that will be added if legally required. SVTC reserves the right to require payment prior to commencing services or release of data. Forensic testimony or other services not stated on the quotation are not included the services to be provided.
9. Intellectual Property. Customer’s proprietary property submitted to SVTC shall remain the Customer's property. Upon satisfactory payment to SVTC for services provided, data or information generated by SVTC for the Customer for the analytical work shall be considered the Customer's property. SVTC or its subcontractors shall retain ownership of all analytical methods, protocols, and equipment. Without SVTC’s prior written consent, Customer shall not use SVTC's or its subcontractor’s names or trademarks in any written materials, press releases or in any other manner and shall not attribute to SVTC any test result, tolerance or specification derived from SVTC's data.
10. CONFIDENTIALITY: It may be necessary for Confidential to be disclosed by either party to the other. Confidential Information shall mean information that is disclosed between the parties that is conspicuously marked or confirmed in writing if oral, that the disclosure is confidential, including the disclosure of any intellectual property or other documentation or any product plans, business, financial or personnel information. “Confidential Information” shall not include information which: (i) is publicly available or publically disclosed by the receiving party with the prior written approval of the disclosing party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is intentionally disclosed by the disclosing party to a third party without restriction on disclosure; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed pursuant to any judicial or governmental order, provided that the receiving party gives the disclosing party sufficient prior written notice to contest such order. All Confidential Information exchanged between the parties shall not be disclosed by the recipient to anyone except its own employees, contractors, consultants or subcontractors or those of its affiliates, who have a need to know such
Confidential Information in connection with the contracted services, and who have been contractually obligated to observe the terms and conditions comparable to those herein. Confidential Information shall not be used by the recipient for any purpose other than exercising its rights or fulfilling its contractual obligations. Parties shall not disclose confidential information of third parties without the owner’s prior consent. Parties shall at all times and notwithstanding any termination or expiration hold received Confidential Information in strict confidence with at least the degree of care it uses for its own confidential information and with not less than a legally reasonable degree of care. Recipient’s obligations to maintain confidentiality shall survive the termination of the contract and shall be binding upon the recipient’s heirs, successors and assigns. Upon request of the disclosing party, copies and embodiments of the disclosing party’s Confidential Information shall be promptly returned to the disclosing party by the recipient, unless such copies are required to fulfill the terms of the contract. Upon termination for any reason, each party shall promptly return to the other party all Confidential Information provided by the other party, including all copies, except that a recipient may keep one copy solely for archival purposes. If either party becomes aware of an unauthorized disclosure, even if not confirmed, it shall promptly notify the original disclosing party and promptly take reasonable actions to mitigate the effects of the unauthorized disclosure.