All work and services to be performed and all obligations that Akron Rubber Development Laboratory, Inc. (along with its affiliated companies, their officers, employees, agents, contractors or subcontractors are referred to as “ARDL”) assumes (the “Services”) are undertaken and the rates and charges of ARDL are based upon the following Terms and Conditions.
1. ARDL warrants exclusively to the party requesting the Services (the “Client”) that ARDL shall perform the Services in a manner consistent with that level of care and skill ordinarily exercised by others that provide services under similar circumstances. The Services shall be performed in accordance with relevant scientific principles, ethical standards, Good Laboratory Practice and applicable national or international standards (where required). ARDL makes no other warranties, express or implied. ARDL excludes and disclaims all implied warranties, including but not limited to, any warranty of fitness for a particular purpose, warranty of merchantability, warranty of workmanlike performance and warranty of results. This warranty shall become null and void in the event Client does not pay ARDL as required.
2. Client's exclusive remedy for ARDL's breach of its express warranty and the maximum liability of ARDL for any loss or damage claimed, either directly or indirectly, in contract, tort, or otherwise, in connection with the performance of the Services shall be the fee paid to ARDL for the Services. Client waives any and all other claims or causes of action against ARDL resulting from the Services for incidental, consequential, punitive, special damages or lost profits.
3. Client acknowledges that by their very nature, the Services are limited in scope and subject to expected measurement variability. Unless otherwise expressly stated in writing, nothing contained in any report shall be deemed to imply or mean that ARDL shall conduct any quality control and/or production program for Client.
4. ARDL strongly recommends that Client review state and federal intellectual property laws and facts prior to Client's use of any information ARDL supplies. Client shall defend, indemnify and hold harmless ARDL from and against all claims, suits and liabilities (including but not limited to cost of litigation and attorneys fees) arising, directly or indirectly, in connection with: (a) claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial body; (b) claims or suits arising from information supplied by Client; and/or (c) claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to intellectual property incurred by or occurring to any third party and arising in connection with or related to the Services. This indemnity shall apply even if the claims, suits and liabilities arise or are alleged to arise from the negligence, breach of contract or other legal fault of ARDL.
5. Written notice of any claim by Client against ARDL must be made within ninety (90) days after ARDL delivers the report regarding the corresponding Services. Failure to give such written notice of claim within such ninety (90) days shall constitute a bar and irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the performance of the corresponding Services.
6. The Services and the reports and other documents generated in connection with the Services are not intended to be for the benefit of any person or entity other than the Client. Reports are based, and the Services are conducted, under the Client's specific instructions, and there may be other relevant information not requested nor reported. Delivery of any report to any third party does not constitute a representation to such third party by ARDL of any matter stated in the report. The Client acknowledges that ARDL does not, either by entering into a contract or by performing the Services, abridge, abrogate or undertake to discharge any duty of the Client to any third party.
7. ALL CLAIMS MADE AGAINST ARDL, EITHER DIRECTLY OR INDIRECTLY, IN CONTRACT, TORT OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF OHIO. ANY SUIT BROUGHT AGAINST ARDL SHALL BE FILED EXCLUSIVELY IN SUMMIT COUNTY, OHIO.
8. These Terms and Conditions constitute part of any agreement entered into pursuant to the attached document and any purchase order that Client delivers to ARDL. ARDL's acceptance of Client's request for the Services is limited to the Terms and Conditions of Service on this page and any attached provisions. Any additional or inconsistent terms proposed or submitted by Client at any time (including, but not limited to, provisions or terms in Client's purchase order, instruction or other document) are objected to and rejected, and shall be deemed a material alteration hereof, and shall be of no force or effect.
9. In performance of the Services, Client may provide ARDL with sample materials for analyses that are defined, determined or identified as being toxic or hazardous by federal, state or local laws, rules or regulations, whether now existing or hereafter enacted or promulgated or defined, or by judicial or administrative interpretation ("Hazardous Materials"). ARDL understands and agrees that any Hazardous Materials that it receives from or on behalf of Client will remain the property of Client and that, upon completion of the Services, ARDL will dispose of all unused portions of samples (at Client's cost) in accordance with disposal instructions Client provides to ARDL. In the event Client does not specify its preferred method of disposal, ARDL will return (at Client's cost) to Client all unused samples that contain Hazardous Materials. ARDL reserves the right to charge Client for the disposal of all unused samples in accordance with ARDL's then-current sample disposal policy. Client shall notify ARDL of and provide ARDL with a material safety data sheet for any Hazardous Materials that Client delivers to ARDL.
10. Information, data, and sample materials Client delivers to ARDL and the results of the Services will be held in confidence unless: (a) such information and data are generally available to the Public or is in the Public domain; and (b) disclosure of such information and data was made pursuant to a judicial order or governmental regulations or requirements. In fulfillment of this provision, ARDL will use the same standards of care it uses in protecting its own confidential information and data and will not be responsible for unauthorized disclosure of any information and data where such standards were observed.
11. Client will pay ARDL for the Services in accordance with the prices set forth on the corresponding quotation from ARDL. Payment terms are net thirty (30) days from date of invoice (unless ARDL and Client expressly agree otherwise), in accordance with payment instructions as set forth on the invoice. If Client disputes any items on an invoice, Client shall notify ARDL of the disputed item specifying the reason, and payment of the disputed item may be withheld until settlement of the dispute. Amounts unpaid and undisputed beyond 30 days after receipt of invoice are subject to a late payment charge of the lesser of 1% per month or the maximum allowable under law. If unpaid amounts are collected through legal proceedings, by an attorney, or by a commercial collection agent, Client shall pay reasonable court costs, attorneys' fees or agents' fees associated with such collection. Any tax or levy, whether now in force or enacted or levied in the future, except taxes based on ARDL's net income, will be in addition to the charges specified on the Service Work Order and will be paid by Client.
12. Failure by either party to enforce any of the terms of this Agreement in any particular instance will neither constitute a waiver of its rights under this Agreement, nor will it constitute a continuing waiver or preclude subsequent enforcement thereof. ARDL may subcontract its obligations under this Agreement. Client will not assign its duties, interests, obligations, benefits or responsibilities under this Agreement, nor will it sell, transfer, or in any way encumber its interest under this Agreement without first obtaining ARDL's prior written consent. No change or modification to this Agreement will be valid unless in writing and signed by duly authorized representatives of the parties. If any term, condition or provision, or part thereof, is deemed unenforceable, then that term, condition or provision, or part thereof, shall be void and all other terms, conditions or provisions shall have the same effect as if the voided term, condition or provision, or part thereof, had not existed. These Terms and Conditions shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared them, and any uncertainty or ambiguity shall not be interpreted against any one party.