NOTE: THIS SERVICES AGREEMENT WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN CUSTOMER (DEFINED BELOW) AND ENVIRAL TECH, INC. PERTAINING TO THE PRODUCTS AND/OR SERVICES TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN CUSTOMER’S USE OF THE SERVICES (AS DEFINED BELOW) AND THIS AGREEMENT WILL NOT APPLY.
BY INDICATING YOUR ASSENT TO ENTER THIS AGREEMENT, YOU SUBMIT TO ENVIRAL TECH, INC., A DELAWARE CORPORATION (“ENVIRAL TECH”), AN OFFER TO OBTAIN THE RIGHT TO USE THE SERVICES UNDER THE PROVISIONS OF THIS SERVICES AGREEMENT (THE “AGREEMENT”) AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE SERVICES LISTED ON THE QUOTE, PROPOSAL, ORDER FORM OR OTHER DOCUMENT (EACH AN “ORDER”) THAT ENVIRAL TECH PROVIDES TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF SERVICES. THE TERMS OF EACH ORDER WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
If YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER do not agree to any of the terms below, ENVIRAL TECH is unwilling to PROVIDE THE SERVICES TO CUSTOMER, and you should discontinue the SERVICES ENGAGEMENT process.
1.0. SCOPE OF AGREEMENT. This Agreement sets forth the terms and conditions under which Enviral Tech will provide to Customer the (i) surface and/or air environmental testing kits (“Testing Kits”); (ii) related lab testing services (“Services”); and (iii) lab testing report (“Report“) described in each Order. No Order will be effective unless executed by both parties. Each Order, and the provision of all Testing Kits, Services and Reports to Customer, shall be governed by and in all respects subject to this Agreement. In the event of any conflict or inconsistency between the terms or conditions of this Agreement and any provision in an Order, the conflicting or inconsistent provision in the Order will have no force or effect unless expressly stated otherwise in the applicable Order. All changes to any Order shall be mutually agreed to by the parties in writing.
2.0. PERFORMANCE STANDARDS AND WARRANTIES; DISCLAIMERS.
2.1. Enviral Tech warrants that each of its employees, agents or representatives assigned to provide Services shall have the proper skill, training and background so as to be able to perform such Services in a professional, competent and workmanlike manner in accordance with the prevailing standards in Enviral Tech’s industry. If Customer notifies Enviral Tech in writing within thirty (30) days after a Report is made available to Customer that Enviral Tech is not in compliance with the foregoing warranty, then Enviral Tech will, as Customer’s sole and exclusive remedy and Enviral Tech’s sole liability, use commercially reasonable efforts to cause the Services to conform to such warranty at no additional cost to Customer. Any request made by Customer for remedial work on particular Services after such thirty (30) day period shall require the payment of additional fees.
2.2. Enviral Tech will pass through and make available to Customer all warranties, indemnities and support and maintenance terms offered by applicable third party providers in connection with applicable Testing Kits (the “Third Party Terms”), which such Third Party Terms shall be provided by Enviral Tech to Customer upon request. Subject to the foregoing, Enviral Tech does not warrant, and shall not be liable for any damages related to, the suitability OR PERFORMANCE of any Testing Kits.
2.3. Customer acknowledges that the timely and successful performance of Services and delivery of Reports requires good faith cooperation by Customer. Therefore, Customer shall promptly (a) collect applicable ) surface and/or air samples using Testing Kits and (b) return such Testing Kits to Enviral Tech, in each case as requested by Enviral Tech. In the event that any failure by Customer to comply with the provisions of this Section 2.3 results in any delay in performance of the Services by Enviral Tech, Enviral Tech shall not be deemed in breach of this Agreement for such delay and Customer shall be responsible for any costs incurred by Enviral Tech in addressing and remedying such delay.
2.4. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.1 ABOVE, ENVIRAL TECH DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE TESTING KITS, SERVICES AND REPORTS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND THOSE THAT MAY ARISE FROM ANY COURSE OF DEALING OR PERFORMANCE.
3.0. TERM AND TERMINATION.
3.1. This Agreement shall continue in effect until terminated as set forth herein.
3.2. This Agreement may be terminated by either party if (a) the other party materially breaches this Agreement or any Order and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party, or (b) there is no Order outstanding at the time that the terminating party delivers written notice of termination to the other party; provided that an Order may include a subscription term during which Customer has agreed to purchase Services (a “Subscription Term“).
3.3. Upon any such termination, without prejudice to any other rights or remedies which the parties may have (a) all rights and obligations of the parties shall immediately cease, and (b) Customer shall pay to Enviral Tech the full amount of any outstanding fees due hereunder. Sections 2.4, 3.3 and 4.0 through 11.0 shall survive termination of this Agreement for any reason.
4.0. FEES AND PAYMENTS. Fees for all Services provided under this Agreement will be as set forth in the applicable Order, including fees payable during a Subscription Term. If a particular Order does not specify a specific payment due date, Customer agrees to pay to Enviral Tech all amounts owed under such invoices within thirty (30) days of their issuance. All payments shall be made in currently available funds payable at either the address set forth on the invoice or such other address as Enviral Tech may specify in writing. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Enviral Tech’s income). Any amounts due under this Agreement which are not paid within thirty (30) days of their due date shall be subject to a late payment charge of one and one half percent (1-1/2%) and shall thereafter bear interest at a rate of eighteen percent (18%) per annum until paid. Each party is responsible for its own expenses under this Agreement.
5.0. REPORTS; EXCLUSIVITY. Upon completion of applicable Services, Customer will be provided with a Report that details the results of the laboratory analysis of the surface and/or air samples provided by Customer. Reports are not intended to comply with any legal obligations to disclosure. Each Report is intended for the sole, confidential and exclusive use and benefit of Customer and Enviral Tech has no obligation or duty to any other party. Enviral Tech accepts no responsibility for use of Reports by third parties. Notwithstanding the foregoing, Customer understands that Enviral Tech may (i) market publicly, unless otherwise set forth in the applicable Order; and/or (ii) notify the facility operator, owner, occupants, or appropriate public agencies of any condition(s) discovered that may pose a safety or health concern.
6.0. PROPRIETARY RIGHTS. As between the parties, (i) Customer will retain all ownership rights in and to the specific results included within Reports, subject to Section 5.0 above; and (ii) Enviral Tech and/or its suppliers will otherwise retain all ownership rights in and to the Testing Kits, Services and Reports that are provided to Customer, and all intellectual property rights incorporated into or related to the foregoing. All rights not expressly licensed by Enviral Tech under this Agreement are reserved.
7.0. NO GUARANTEES OR ENDORCEMENTS. In the event that a Report identifies a positive laboratory analysis, such Report may also recommend certain third parties that may be available to help remediate such condition (each, a “Service Professional“). Although Enviral Tech takes certain steps to examine the credentials of the Service Professionals, Enviral Tech makes no guarantees, warranties or representations regarding the skills or undertakings of any such Service Professional or the quality of the job that it may perform for Customer if Customer elects to retain their services. Enviral Tech does not endorse or recommend the services of any particular Service Professional. It is entirely up to Customer to evaluate the Service Professional and its qualifications, and to enter into a direct contract or otherwise reach agreement with a Service Professional. The Service Professionals are not employees or agents of Enviral Tech, nor is Enviral Tech an agent of any Service Professional.
8.0. RELATIONSHIP. The parties acknowledge and agree that the relationship between Enviral Tech and Customer is that of an independent contractor and nothing in this Agreement or related to the Services performed in connection with any Order shall be construed to create a partnership, joint venture, agency or employer-employee relationship between Customer and Enviral Tech or any of Enviral Tech’s employees or agents. Enviral Tech, as such, is solely responsible for any and all taxes, including FICA, FUTA, and unemployment taxes, worker’s compensation coverage, and other liabilities incurred as an independent contractor. Enviral Tech also expressly waives employee status for all purposes, including eligibility for any and all benefits under any benefit plan of Customer, its affiliates, or successors. Customer may, upon reasonable notice, request that Enviral Tech remove or reassign certain personnel based on the individual’s skills, background, or failure to perform work in a manner consistent with Enviral Tech’s obligations hereunder.
9.0. CONFIDENTIAL INFORMATION.
9.1. “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such.
9.2. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information.
9.3. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information:
(a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure;
(b) was in the public domain on or before the Effective Date;
(c) came into the public domain after the Effective Date through no fault of the receiving party;
(d) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or
(e) is divulged pursuant to any legal proceeding or otherwise required by law, subject to the receiving party giving all reasonable prior notice to the disclosing party to allow it to seek protective or other court orders and provided that the receiving party uses best efforts to make such disclosure under conditions of confidentiality.
10.0 INDEMNIFICATION; UNCONDITIONAL RELEASE; LIMITATION OF LIABILITY.
10.1 Customer will defend, indemnify and hold Enviral Tech harmless against any action against Enviral Tech brought by a third party to the extent that the action is based upon a claim related to the Testing Kits, Services or Results. The foregoing obligations are conditioned on Enviral Tech notifying Customer promptly in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Customer’s reasonable request and expense, assisting in such defense.
10.2 CUSTOMER ACKNOWELDGES AND AGREES THAT ENVIRAL TECH AND ITS AGENTS ARE NOT INSURERS AND, THAT ANY LABORATORY ANALYSYS AND REPORT TO BE PROVIDED UNDER THIS AGREEMENT SHALL NOT BE CONSTRUED AS A GUARANTEE OR WARRANTY AS TO WHETHER OR NOT ANY INFECTIOUS DISEASE IS PRESENT WITHIN A CUSTOMER FACILITY OR ANY OF THE SAMPLES CUSTOMER HAS RETURNED TO ENVIRAL TECH FOR TESTING. CUSTOMER HEREBY RELEASES AND EXEMPTS ENVIRAL TECH, ITS AGENTS AND EMPLOYEES OF AND FROM ALL LIABILITY AND RESPONSIBILITY FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING THOSE RELATED TO PERSONAL INJURY OF ANY NATURE. IN THE EVENT THAT ENVIRAL TECH, ITS AGENTS OR EMPLOYEES ARE FOUND LIABLE DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENT MISREPRESENTATION, NEGLIGENT HIRING OR ANY OTHER THEORY OF LIABILITY, THEN THE CUMULATIVE AGGREGATE TOTAL LIABILITY OF ENVIRAL TECH, ITS AGENTS AND EMPLOYEES SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT.
11.0 MISCELLANEOUS. Neither party shall be liable to the other party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including acts of God, governmental orders, pandemics or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder. Except as expressly set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent. Either party may assign this Agreement in whole pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Additionally, Enviral Tech may utilize subcontractors in the performance of Services provided that Enviral Tech remains liable for such subcontractor’s compliance with this Agreement. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement together with the Orders issued hereunder and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. The terms on any purchase order or similar document submitted by Customer to Enviral Tech will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order.
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