TERMS AND CONDITIONS
- SCOPE
a. These terms and conditions (the “Terms”) between Deibel Laboratories of Illinois, Inc., including all corporations, limited liability companies, partnerships, and other business entities utilizing the name “Deibel,” “Deibel Labs,” or “Deibel Laboratories” (“Deibel”) and the customer (the “Customer” or “the Client”) requesting certain Services (as defined below), shall govern the relationship between Deibel and Customer, and the terms on which the Services are provided to Customer.
b. Customer agrees that when Customer signs or submits a Service Order, Sample Analysis Request Form or otherwise indicates Customer’s acceptance, as the context requires, an agreement will be formed between Customer and Deibel for the provision of the Services which will be governed exclusively by these Terms.
- SERVICES
a. At Customer’s specific request, Deibel shall perform testing and analytical and other services for Customer (the “Services”) and Deibel shall report the results of the services in writing to be transmitted to customer as Deibel and Customer may agree (“Results of the Services”).
b. The Results of the Services performed according to Customer’s request are not pre-determined or certain. The validation of the Results of the Services is a set of experiments, each with an unknown outcome. Deibel does not guarantee, either express or implied, that the Results will meet the acceptance or other criteria set out by Customer, and Deibel does not accept responsibility for failure to meet any acceptance or other criteria.
c. Deibel does not represent the Certificate of Analysis as having been produced under the ISO/IEC 17025 accreditation guidelines. Deibel may look to accrediting bodies as a reference but retains the full rights to utilize its own quality system in connection with the generation of its analyses and the disclosure of the internal and external resources utilized to produce the results of testing.
d. Deibel shall submit reports of services performed indicating results of testing. Deibel reserves the unconditional right to utilize external (non-Deibel) laboratory resources to produce the results of testing or performance of Services as required. Such results and reports thereon will be based solely upon samples as provided by Customer. Such results are intended for use by persons having professional skill and training in the interpretation of such results. Deibel assumes no responsibility, and Customer hereby waives all claims against Deibel, for interpretation of such results.
e. Beginning August 1, 2019, the minimum amount of any invoice for services rendered by Deibel is $75.00 which shall exclude any shipping and handling charges.
f. Shipping charges are payable by Customer in addition to any charges for testing or other services
3. CUSTOMER RESPONSIBILITIES
a. Customer agrees that all decisions regarding which Services are required related to Customer’s products or business is solely Customer’s responsibility and Customer must decide whether the specific Service is appropriate for Customer’s circumstances and intended use of the Results, Service Reports, or Software applications.
b. While Deibel may provide advice and recommendations, Customer must decide whether the specific Service is appropriate for Customer’s circumstances and intended use of the Results, Service Reports or Software Applications. Customer represents and warrants that (i) it has sufficient and reasonable commercial knowledge and experience with respect to all international, federal, state and local laws and regulations (the “Laws”) related to its products and business, (ii) that Customer is in material compliance with all applicable Laws, including but not limited to, export and data privacy laws and regulations of any relevant jurisdiction with respect to Customer’s use of any Software Application and the related Software System.
c. The Results and Service Reports are intended for use by persons having professional skill and training in the interpretation of such information. Interpretation of any Results or Service Report is at Customer’s own risk.
d. Deibel disclaims and assumes no responsibility, and Customer hereby waives and releases Deibel, its past and present employees, agents and representatives from all actions, proceedings, suits, causes of action, arbitration, verdicts and judgments either at law or in equity or arising under a statute, demands, claims of any nature, costs and expenses or otherwise resulting from interpretation and use of such Results or Service Reports or Customer’s use or non-use of any Application Platform and any data or information in connection therewith. Customer understands and agrees that in the event of a discrepancy between information set forth in a Software Application and a hard copy Service Report, such Service Report will control.
e. Customer acknowledges and agrees that implementing any corrective actions, including but not limited to a withdrawal of products, a recall of products, ceasing production (in whole or in part), and/or sanitization of Customer facilities,, based on the Results, including, but not limited to, interim, presumptive, indicator and/or preliminary Results, is Customer’s sole responsibility and at Customer’s sole risk, and Deibel shall not be liable for any corrective actions taken by Client based on such Results, including, but not limited to, interim, presumptive, indicator, and/or preliminary Results. For the purpose of these Terms, references to ‘indicator’ results shall be deemed to include the results of locally governed industry-standard indicator-type testing, including, but not limited to, aerobic plate count (APC), yeast/mold (YM), coliforms, and/or enterobacteriaceae.
f. Customer agrees to defend, indemnify and hold harmless Deibel, its affiliates and their respective past, current, and future officers, agents, employees, representatives and contractors from and against any and all Claims arising out of or relating to: (i) the performance of the Services in accordance with these Terms or any Service Order; (ii) Customer’s use of any products reviewed or analyzed by Deibel; (iii) the use of the Results or Service Reports or any other data or analysis provided by Deibel hereunder; (iv) any Customer Content; or (v) any unauthorized use of or access to the Software Systems.
g, In the event that Customer becomes insolvent, files a voluntary petition in bankruptcy or liquidation, or if a petition in bankruptcy or liquidation is filed against Customer or a receive is appointed or takes possession of Customer’s property, or if Customer is adjudicated as bankrupt or takes any similar action under any bankruptcy and insolvency laws or similar laws of any jurisdiction, then: (i) Customer shall immediately provide written notice to Deibel thereof; (ii) Deibel shall have the right to immediately terminate its Services for the Customer and declare any amounts owed by Customer to Deibel for all complete and incomplete Services to be immediately due and payable; and (iii) Deibel shall have the right to file a proof of claim in such proceedings for all amounts owed by Customer to Deibel for all complete and incomplete Services rendered by Deibel to Customer. In the event Customer fails to provide such notice to Deibel as required in this Section, then Customer expressly agrees that any claim Deibel may have against Customer for unpaid Services rendered to Customer shall not be extinguished, discharged, or waived as a result of such insolvency, bankruptcy, or liquidation.
- DEIBEL’S RESPONSIBILITIES AND LIMITATIONS OF LIABILITY
a. In performing the services that Customer has requested, Deibel will use a degree of care and skill consistent with applicable practices, laws, and regulations.
b. Deibel shall have no liability for any errors, deficiencies, or omissions in any Services provided to Customer that are based on inaccurate or incomplete information provided to Deibel.
c. Customer acknowledges that, due to the nature of the Services to be conducted, Deibel shall be under no obligation at any time to return or dispose of samples or other materials provided by Customer to Deibel for testing or analytical services. Samples and materials provided by Customer may be destroyed by Deibel upon completion of the Services or after a retention period determined by Deibel or used by Deibel for non-client purposes.
d. ALL TERMS, CONDITIONS AND WARRANTIES (INCLUDING ANY WARRANTY AS TO MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) IMPLIED BY COMMON LAW OR STATUTE (“IMPLIED WARRANTIES”) AS TO THE MANNER, QUALITY AND TIMING OF THE TESTING OR OTHER SERVICE ARE EXCLUDED UNLESS THE EXCLUSION OF ANY SUCH IMPLIED WARRANTIES WOULD CONTRAVENE APPLICABLE LAW OR CAUSE ANY PART OF THIS AGREEMENT TO BE VOID.
e. DEIBEL’S WARRANTIES, OBLIGATIONS AND LIABILITIES HEREUNDER ARE EXCLUSIVE AND DEIBEL’S LIABILITY TO CUSTOMER FOR BREACH OF ANY TERM OF THIS AGREEMENT OF ANY IMPLIED WARRANTIES, OR FOR ANY NEGLIGENCE OR OTHER WRONGDOING IN THE PERFORMANCE OF TESTING SERVICES, IS LIMITED, AT DEIBEL’S OPTION, TO EITHER RE-PERFORMING THE TESTING SERVICE OR REFUNDING THE TOTAL FEE PAID IN RESPECT OF THAT PART OF THE TESTING SERVICE.
f. DEIBEL WILL UNDER NO CIRCUMSTANCES BE LIABLE TO CUSTOMER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGE SUFFERED BY CUSTOMER IN ANY WAY ARISING FROM THE TESTING OR OTHER SERVICES OR CUSTOMER’S USE OF THE TEST RESULTS OR SERVICES. DEIBEL, NOR ANY OF ITS AFFILIATES NOR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, SUBCONTRACTORS, OR AGENTS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS OR REVENUE, LOSS OF INCOME, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, OR ANY TYPE OF SPECIAL, INCIDENTIAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOSS IN CONNECTION WITH OR IN ANY WAY CLAIMED TO BE ARISING FROM OR RELATED TO THESE TERMS, THE TESTING, THE SERVICES, THE RESULTS, OR OTHER SERVICES PROVIDED TO CUSTOMER, AND/OR CUSTOMER’S USE OF THE RESULTS OR SERVICES, EVEN IF SUCH DAMAGE OR LOSS MAY HAVE BEEN FORESEEABLE. THIS LIMITATION OF LIABILITY EXPRESSLY INCLUDES, BUT IS NOT LIMITED TO, CIRCUMSTANCES WHERE DEIBEL HAS NOTIFIED CUSTOMER OF A ‘PRESUMPTIVE’, INDICATOR, INTERIM AND/OR PRELIMINARY RESULT, AND DEIBEL SHALL NOT BE LIABLE FOR ANY CORRECTIV ACTIONS TAKEN BY CUSTOMER BASED ON SUCH ‘PRESUMPTIVE’, INDICATOR, INTERIM, AND/OR PRELIMINARY RESULTS PROVIDED TO CUSTOMER.
g. Deibel shall not be liable for delays or other problems caused by unforeseen circumstances, compliance with governmental requests, laws, regulations, or breakage or failure of equipment or apparatus, or any other event beyond Deibel’s reasonable control.
- PAYMENT
a. Invoicing is conducted on a monthly basis after all testing is completed for the month. Invoices are typically transmitted by email with PDF attachments of the invoice and the Lab Report Summary (LRS).
b. Unless otherwise stated in the Service Order, all prices for the Services are expressed in US dollars, and all amounts payable are exclusive of tax. Unless otherwise stated in the applicable Service Order, Customer shall pay Deibel for performance of the Services and all related expenses in accordance with Deibel’s invoices, which shall be paid on a net 30 day basis from the date of invoice. Any balance remaining unpaid after the due date may be subject to a service charge of 1.5% per month until paid, but in no event shall such charge exceed the rate permitted by applicable law. Customer’s failure to make payments within 45 days of the date of invoice shall be deemed an event of default under these Terms. If legal action or collection proceedings are necessary to enforce Customer’s payment obligations, Customer shall be liable to Deibel for its costs of collection, including any collection agency retention costs, court costs, and attorneys’ fees. Deibel reserves the right, prior to performing any Services, to require from Customer satisfactory security for performance of Customer’s obligations. If Customer fails to furnish satisfactory credit information, or if its account is in arrears, Deibel may, at its option, defer further performance or terminate any outstanding Service Orders.
c. Customer may, for convenience, and in Deibel’s sole and absolute discretion, make payments by credit card. To the extent permitted by applicable laws, Deibel may require Customer to pay a convenience fee on such transactions (the “Convenience Fee”). The Convenience Fee is subject to change, and is currently 3% (three percent). This Convenience Fee will be due at the time of credit card payment and is non-refundable under any circumstances.
- CONFIDENTIALITY AND INTELLECTUAL PROPERTY
a. Without prejudice to the right granted to Deibel to use the Customer Content under these Terms, neither party may disclose the other party’s confidential information, including these Terms and any detail related to the Service Orders, to any third party, other than its duly authorized representatives, affiliates, employees or agents who have a need to know for the purpose of the Service Order and who are bound by the obligations stated herein without prior written consent of the discloser.
b. The confidentiality and non-use obligations hereunder shall not apply to information which (a) was in possession of the recipient prior to transmission by the discloser; (b) was or became accessible to the public through no fault of the recipient; (c) the recipient receives in good faith from a third party entitled to disclose it; or (d) is independently developed by the recipient, without reference to information received hereunder. In the event that either party is required by mandatory reporting obligations, applicable law or regulation or by legal process to disclose any confidential information, such party shall provide the other party with prompt notice of such request, unless otherwise prohibited. The confidential information of Deibel expressly includes, without limitation, the Software Systems and the intellectual property related thereto. If required by law to make any disclosures, Deibel reserves the right to seek reimbursement from Customer for reasonable costs associated with the preparation and submission of Results, Service Reports or other Customer confidential information.
c. Any Service Report or Results furnished by Deibel is furnished solely for the benefit of Customer and the contents of any such Service Report or Results shall be the confidential property of Customer. Customer shall not at any time misrepresent the content of any Service Report, Results, or other information received from or relating to Deibel or its work on behalf of Customer.
d. Customer shall not, without Deibel’s prior written consent, (i) use Deibel’s name, trademark, or logo; or (ii) use any Results or Service Report in any manner which may cause harm to Deibel’s reputation and/or its business.
- GENERAL CONDITIONS
a. These Terms and any open Service Orders may be terminated by Deibel with thirty (30) days written notice. If the Terms or any outstanding Service Orders are terminated, Deibel shall be paid in full for all Services performed through the termination date, and the Customer shall be provided with a report of Services of Services conducted prior to termination.
b. Customer may not delegate, assign, or transfer obligations or interest in these Terms or any Service Order without Deibel’s prior written consent. Deibel may assign or transfer some or all of its rights at any time to an affiliate provided such affiliate assumes Deibel’s obligations hereunder. Customer hereby expressly waives and releases any claim it may have against any affiliate of Deibel not providing services under the applicable Service Order.
c. The relationship between the parties hereunder is of independent contractor and principal. No partnership, joint venture or agency is created through the provision of the Services.
d. These Terms and any Service Orders represent the entire agreement between Customer and Deibel and supersede all negotiations, representations or agreements, written or oral. In the event of any inconsistency, these Terms will prevail over the Service Order, unless otherwise stated on the Service Order, and over any terms and conditions included in Customer’s purchase order or any other document unless expressly accepted by Deibel in writing. The obligations set forth in Sections 3. 4, and 6 shall survive the termination of the commercial relationship between the parties.
e. In the event that any of the provisions of these Terms are or become null or void, such provisions shall be deemed to have been deleted from these Terms and the remaining provisions hereof shall remain valid and enforceable.
f. The validity, interpretation and performance of these Terms and any Services Orders shall be governed by the laws (but not the conflict of law rules) of the State of Illinois (USA).
g. Customer consents to the exclusive jurisdiction and venue of the state or federal courts in Chicago, Cook County, Illinois.
