ACCURATE ANALYTICAL TESTING LLC TERMS
AND CONDITIONS
1. WARRANTIES AND
INDEMNIFICATION
IN PERFORMING THE SERVICES, ACCURATE ANALYTICAL
TESTING LLC SHALL EXERCISE THE DEGREE OF SKILL AND CARE ORDINARILY EXERCISED BY
A REASONABLE PRUDENT PROFESSIONAL IN THE SAME COMMUNITY AND IN THE SAME TIME
FRAME GIVEN THE SAME OR SIMILAR FACTS AND CIRCUMSTANCES. EXCEPT AS SET FORTH IN
THE IMMEDIATELY PRECEDING SENTENCE, ACCURATE ANALYTICAL TESTING LLC MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY OF ITS ORAL OR
WRITTEN REPORTS. CLIENT ACKNOWLEDGES AND AGREES THAT (I) THE SERVICES MAY
REQUIRE JUDGMENTS TO BE MADE BY ACCURATE ANALYTICAL TESTING LLC THAT ARE BASED
UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; (II) ACCURATE
ANALYTICAL TESTING LLC’S APPROACH, RECOMMENDATIONS, AND ASSOCIATED COST
ESTIMATES, IF ANY, ARE BASED ON INDUSTRY PRACTICES AND AVERAGES; (III)
PROFESSIONAL OPINIONS ARE RENDERED WITH RESPECT TO OBSERVATIONS MADE AND DATA
OBTAINED AT THE TIME OF ASSESSMENT; (IV) ULTIMATE OUTCOMES COULD BE INCONSISTENT
WITH THE CONCLUSIONS, RESULTS AND PROJECTIONS OF ACCURATE ANALYTICAL TESTING
LLC; AND (V) THERE MAY BE ADDITIONAL REPORTS RELATING TO THE SITE (WHETHER
PREPARED BY ACCURATE ANALYTICAL TESTING LLC OR OTHER PARTIES), AND RELIANCE UPON
ANY ACCURATE ANALYTICAL TESTING LLC REPORT WITHOUT REFERENCE TO ANY SUCH OTHER
REPORTS IS DONE AT CLIENT’S SOLE RISK. ALL INFORMATION REGARDING OPERATIONS,
PLANS, SPECIFICATIONS, CONDITIONS OR TEST DATA WHICH IS PROVIDED TO ACCURATE
ANALYTICAL TESTING LLC BY CLIENT, OWNERS OR THIRD PARTIES (INCLUDING WITHOUT
LIMITATION, ANY POINT OF CONTACT AT THE SITE), IS DEEMED BY ACCURATE ANALYTICAL
TESTING LLC TO BE CORRECT AND COMPLETE WITHOUT ANY INDEPENDENT VERIFICATION BY
ACCURATE ANALYTICAL TESTING LLC. ACCURATE ANALYTICAL TESTING LLC ASSUMES NO
RESPONSIBILITY FOR THE ACCURACY OF SUCH INFORMATION AND SHALL NOT BE LIABLE IF
RELIANCE ON SUCH INFORMATION RESULTS IN INCORRECT CONCLUSIONS OR RESULTS. CLIENT
SHALL INDEMNIFY AND HOLD ACCURATE ANALYTICAL TESTING LLC HARMLESS FROM AND
AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS, DAMAGES, CLAIMS, OBLIGATIONS,
FEES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY,
“LOSSES”), IF RELYING ON SUCH INFORMATION RESULTS IN INCORRECT CONCLUSIONS OR
RESULTS. IN ADDITION, CLIENT SHALL INDEMNIFY AND HOLD ACCURATE ANALYTICAL
TESTING LLC HARMLESS FROM AND AGAINST ANY AND ALL LOSSES IF A FAILURE TO PROVIDE
DOCUMENTS OR INFORMATION PURSUANT TO SECTION 7 HEREOF RESULTS IN INCORRECT
CONCLUSIONS OR RESULTS.
2. LIMITATION OF
LIABILITY
IN NO EVENT SHALL
ACCURATE ANALYTICAL TESTING LLC BE LIABLE FOR LATENT OR HIDDEN CONDITIONS,
CONDITIONS NOT ACTUALLY OBSERVED BY ACCURATE ANALYTICAL TESTING LLC, THE
POTENTIAL CONSEQUENCES OF OBSERVABLE CONDITIONS, CONDITIONS OF WHICH CLIENT HAD
KNOWLEDGE OF AT THE TIME OF THE ASSESSMENT, OR ANY UNAUTHORIZED ASSIGNMENT OF OR
RELIANCE UPON THE REPORTS. THE LIABILITY OF ACCURATE ANALYTICAL TESTING LLC, AND
THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUBCONTRACTORS, TO CLIENT
OR TO ANY THIRD PARTY, INCLUDING ANY COMPANY AFFILIATED WITH SUCH PARTIES, OR
ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, SUBCONTRACTOR, SUCCESSOR, OR ASSIGN OF
SUCH PARTIES, FOR ANY LOSSES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE
AND STRICT LIABILITY), RELATED TO THE SERVICES, THE AGREEMENT OR OTHERWISE,
SHALL NOT EXCEED (A) AN AGGREGATE OF $1,000.00 PER PROJECT. IN NO EVENT SHALL
ACCURATE ANALYTICAL TESTING LLC BE LIABLE TO CLIENT FOR ANY EXEMPLARY, PUNITIVE,
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES
ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM
UNDER THE AGREEMENT, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY
OF SUCH DAMAGES.
3. RELIANCE AND
ASSIGNMENT
ACCURATE ANALYTICAL TESTING
LLC’S WRITTEN REPORT SHALL CONTAIN THE STANDARD RELIANCE LANGUAGE (IF ANY) THAT
HAS BEEN PRE-APPROVED BY THE CLIENT AND ACCURATE ANALYTICAL TESTING LLC. IF NO
PRE-APPROVED LANGUAGE EXISTS, THE SERVICES, THE REPORTS AND OTHER RELATED WORK
PRODUCT PROVIDED BY ACCURATE ANALYTICAL TESTING LLC MAY BE RELIED UPON BY THE
CLIENT, ITS SUCCESSORS AND ASSIGNS WITH RESPECT TO A LOAN SECURED BY THE SUBJECT
PROPERTY, AND ANY RATING AGENCY RATING, OR ANY ISSUER OR PURCHASER OF, ANY
SECURITY COLLATERALIZED OR OTHERWISE BACKED BY SUCH LOAN. NO OTHER PERSON OR
ENTITY MAY RELY ON THE REPORT WITHOUT THE ADVANCE WRITTEN CONSENT OF ACCURATE
ANALYTICAL TESTING LLC, AND NO OTHER THIRD PARTY BENEFICIARIES ARE INTENDED.
EXCEPT AS DESCRIBED ABOVE, THE CLIENT SHALL NOT ASSIGN THE PROPOSAL, ANY REPORT
OR ANY RELATED WORK PRODUCT, WITHOUT THE PRIOR WRITTEN CONSENT OF ACCURATE
ANALYTICAL TESTING LLC. ANY UNAUTHORIZED REUSE OR REDISTRIBUTION OF ACCURATE
ANALYTICAL TESTING LLC’S WORK PRODUCT OR REPORTS SHALL BE AT THE CLIENT’S AND
RECIPIENT’S SOLE RISK, WITHOUT LIABILITY TO ACCURATE ANALYTICAL TESTING LLC.
ACCURATE ANALYTICAL TESTING LLCACCURATE ANALYTICAL TESTING LLCACCURATE
ANALYTICAL TESTING LLCCLIENT WILL HOLD ACCURATE ANALYTICAL TESTING LLC HARMLESS
FROM ANY AND ALL LIABILITY, OBLIGATION, COST AND EXPENSE ARISING FROM OR RELATED
TO ANY UNAUTHORIZED DISTRIBUTION OR USE BY CLIENT OF ACCURATE ANALYTICAL TESTING
LLC’S WORK PRODUCT OR REPORTS. ACCURATE ANALYTICAL TESTING LLC SHALL NOT ASSIGN
ITS OBLIGATIONS UNDER THE PROPOSAL; HOWEVER, ACCURATE ANALYTICAL TESTING LLC MAY
EMPLOY, BY SUBCONTRACT, SUITABLY TRAINED PERSONS OR ENTITIES ACCEPTABLE TO
ACCURATE ANALYTICAL TESTING LLC TO PERFORM THE SERVICES.
4. BILLINGS, PAYMENT AND
CREDIT
THE CLIENT SHALL PAY
ACCURATE ANALYTICAL TESTING LLC FOR THE SERVICES PERFORMED IN ACCORDANCE WITH
THE PRICES SET FORTH IN THE PROPOSAL. INVOICES SHALL BE SUBMITTED IN
ACCORDANCE WITH THE PROPOSAL. ACCURATE ANALYTICAL TESTING LLC RESERVES THE
RIGHT TO CANCEL OR MODIFY PAYMENT TERMS OF THE PROPOSAL IF THE CLIENT DOES NOT
MEET THE CREDIT REQUIREMENTS OF ACCURATE ANALYTICAL TESTING LLC. IN
ADDITION, IF THE POTENTIAL FINANCIAL CONDITION OF THE CLIENT WERE TO CHANGE DUE
TO LAWSUIT, BANKRUPTCY, OR OTHER SIGNIFICANT INCIDENTS, OR IF ACCURATE
ANALYTICAL TESTING LLC WERE TO BECOME AWARE OF SUCH CHANGE DURING THE TIME FRAME
OF PERFORMING THE SERVICES, ACCURATE ANALYTICAL TESTING LLC RESERVES THE RIGHT
TO CANCEL OR MODIFY THE PAYMENT TERMS OF THE PROPOSAL. PAYMENT OF THE ACCURATE
ANALYTICAL TESTING LLC INVOICES SHALL BE THE PRIMARY, ABSOLUTE AND
NON-CONTINGENT OBLIGATION OF THE CLIENT, AND SHALL NOT BE CONDITIONED UPON THE
CLOSING OF A LOAN TRANSACTION OR ANY OTHER EVENT. PAYMENT IS DUE
UPON RECEIPT. IF ACCURATE ANALYTICAL TESTING LLC DOES NOT RECEIVE PAYMENT IN
FULL WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE OF THE INVOICE, THE ACCOUNT
SHALL BE DEEMED DELINQUENT. UNPAID DELINQUENT BALANCES SHALL BEAR INTEREST
FROM THE INVOICE DATE AT ONE AND ONE-HALF PERCENT (1.5%) PER MONTH, OR AT THE
MAXIMUM LAWFUL INTEREST RATE (WHICHEVER RATE IS LESS). IF A DELINQUENCY
OCCURS, ACCURATE ANALYTICAL TESTING LLC MAY, AT ITS OPTION (AND WITHOUT
RELIEVING THE CLIENT FROM ITS PAYMENT OBLIGATION), REVOKE AND DISCLAIM THE
CLIENT’S RIGHT TO RELY ON ANY REPORT DELIVERED PURSUANT TO THE PROPOSAL, UNTIL
PAYMENT IN FULL IS MADE. THE CLIENT SHALL BE LIABLE TO
ACCURATE ANALYTICAL TESTING LLC FOR ALL COSTS AND EXPENSES OF COLLECTION,
INCLUDING REASONABLE ATTORNEY AND PARALEGAL FEES, AND COURT COSTS. TIME IS OF
THE ESSENCE WITH RESPECT TO THIS PROVISION. ACCURATE ANALYTICAL TESTING
LLC'S NON-EXERCISE OF ANY RIGHTS OR REMEDIES, WHETHER SPECIFIED HEREIN OR AS
OTHERWISE PROVIDED BY LAW, SHALL NOT BE DEEMED A WAIVER OF ANY RIGHTS OR
REMEDIES, NOR PRECLUDE ACCURATE ANALYTICAL TESTING LLC FROM THE FUTURE EXERCISE
OF SUCH RIGHTS OR REMEDIES. IF A THIRD PARTY IS ACCEPTING A PROPOSAL AS
AGENT FOR THE CLIENT, SUCH THIRD PARTY REPRESENTS AND WARRANTS TO ACCURATE
ANALYTICAL TESTING LLC THAT IT IS DULY AUTHORIZED TO BIND THE CLIENT TO THE
TERMS OF THE PROPOSAL AND GUARANTEES PAYMENT FOR SERVICES.
5. RIGHT OF ENTRY AND FORCE
MAJEURE
THE CLIENT SHALL
ARRANGE FOR THE RIGHT OF ENTRY TO THE SUBJECT PROPERTY (“SITE”) BY ACCURATE
ANALYTICAL TESTING LLC, ITS AGENTS, EMPLOYEES, CONSULTANTS, CONTRACTORS AND
SUBCONTRACTORS, FOR THE PURPOSE OF PERFORMING ALL ACTS AS MAY BE REASONABLY
NECESSARY TO PERFORM THE SERVICES WITHIN THE AGREED SCOPE OF WORK. IN
CERTAIN INSTANCES, ACCURATE ANALYTICAL TESTING LLC MAY REQUIRE THAT SITE
PERSONNEL OPERATE MAJOR BUILDING SYSTEMS AND EQUIPMENT AT THE TIME THE SERVICES
ARE PERFORMED. ACCURATE ANALYTICAL TESTING LLC MAY REQUIRE THAT AN
AUTHORIZED KNOWLEDGEABLE REPRESENTATIVE OF THE OWNER BE PRESENT AT THE SITE AS A
CONDITION TO THE PERFORMANCE OF THE SERVICES. ACCURATE ANALYTICAL TESTING
LLC’S ABILITY TO COMPLY WITH THE SCHEDULE FOR PERFORMANCE DESCRIBED IN THE
PROPOSAL IS CONTINGENT UPON TIMELY SITE ACCESS. ACCURATE ANALYTICAL
TESTING LLC SHALL NOT BE RESPONSIBLE FOR DAMAGES OR DELAYS IN PERFORMANCE CAUSED
BY FORCE MAJEURE, ACTS OF GOD, EVENTS BEYOND THE CONTROL OF ACCURATE ANALYTICAL
TESTING LLC, OR EVENTS THAT COULD NOT HAVE BEEN REASONABLY FORESEEN AND
PREVENTED.
6. DOCUMENTS AND SAMPLES
ALL
FIELD NOTES, LABORATORY TEST DATA, CALCULATIONS, ESTIMATES AND OTHER DOCUMENTS,
DATA OR INFORMATION PREPARED BY OR ON BEHALF OF ACCURATE ANALYTICAL TESTING LLC
IN CONNECTION WITH THE PERFORMANCE OF ITS SERVICE (COLLECTIVELY, “DOCUMENTS”),
SHALL REMAIN THE SOLE PROPERTY OF ACCURATE ANALYTICAL TESTING LLC. ALL
DOCUMENTS PREPARED BY ACCURATE ANALYTICAL TESTING LLC FOR THE CLIENT WITH
RESPECT TO ANY SITE SHALL BE USED SOLELY FOR THE INTENDED PURPOSES DESCRIBED IN
THE PROPOSAL, AND SOLELY WITH RESPECT TO THE SUBJECT SITE. UNLESS
OTHERWISE AGREED, ACCURATE ANALYTICAL TESTING LLC SHALL RETAIN ALL DOCUMENTS FOR
THREE (3) YEARS FOLLOWING SUBMISSION OF ACCURATE ANALYTICAL TESTING LLC'S REPORT
TO THE CLIENT. DOCUMENTS SHALL BE MADE AVAILABLE TO THE CLIENT UPON
WRITTEN REQUEST AND UPON REASONABLE NOTICE, AND ACCURATE ANALYTICAL TESTING LLC
SHALL FURNISH COPIES TO THE CLIENT UPON PAYMENT TO ACCURATE ANALYTICAL TESTING
LLC BY THE CLIENT OF THE COST OF REPRODUCTION AND RELATED EXPENSES. IN ITS
SOLE DISCRETION AND WITHOUT PRIOR NOTICE TO THE CLIENT, ACCURATE ANALYTICAL
TESTING LLC MAY DISPOSE OF ALL FIELD SAMPLES WITHIN THIRTY (30) CALENDAR DAYS
AFTER SUBMISSION OF ACCURATE ANALYTICAL TESTING LLC'S REPORT TO THE
CLIENT.
7. MATTERS
KNOWN TO CLIENT
THE
CLIENT, OR SITE OWNER, SHALL PROVIDE ACCURATE ANALYTICAL TESTING LLC WITH ANY
AND ALL INFORMATION KNOWN TO THE CLIENT, OR SUSPECTED BY THE CLIENT, WHICH
PERTAINS TO: (A) THE EXISTENCE OR POSSIBLE EXISTENCE AT, ON, UNDER
OR IN THE VICINITY OF THE SITE, OF ANY HAZARDOUS MATERIALS, POLLUTANTS,
LEAD-BASED PAINT, RADON OR ASBESTOS; (B) ANY CONDITIONS AT, ON, UNDER OR IN THE
VICINITY OF THE SITE, WHICH MIGHT REPRESENT A POTENTIAL SAFETY HAZARD OR DANGER
TO HUMAN HEALTH OR THE ENVIRONMENT; (C) ANY PERMIT, MANIFEST, TITLE RECORD, OR
OTHER RECORD OF COMPLIANCE OR NON-COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL
LAWS, OR COURT OR ADMINISTRATIVE ORDER OR DECREES; (D) KNOW OR SUSPECTED
DEFICIENCIES OR ADVERSE CONDITIONS ASSOCIATED WITH STRUCTURES OR OTHER PHYSICAL
IMPROVEMENTS ON SITE; OR (E) MODIFICATIONS OR CHANGES FROM THE ORIGINAL PLANS
AND SPECIFICATIONS OF SITE IMPROVEMENTS WHICH COULD AFFECT THE RECOMMENDATIONS
OR CONCLUSIONS REACHED BY ACCURATE ANALYTICAL TESTING LLC IN THE PERFORMANCE OF
ITS SERVICES.
8. CONFIDENTIALITY
ACCURATE
ANALYTICAL TESTING LLC SHALL NOT DISCLOSE INFORMATION REGARDING THE PROPOSAL,
THE SERVICES OR ANY DOCUMENTS, EXCEPT TO THE CLIENT, EMPLOYEES, CONSULTANTS,
SUBCONTRACTORS OR OTHER PERSONS ENGAGED BY ACCURATE ANALYTICAL TESTING LLC TO
PERFORM THE SERVICES, THIRD PARTIES DESIGNATED BY THE CLIENT (SUBJECT TO THE
RELIANCE LIMITATIONS DESCRIBED HEREIN), OR AS REQUIRED BY LAW.
NOTWITHSTANDING THE TERMS OF THIS SECTION, ACCURATE ANALYTICAL TESTING LLC (I)
SHALL COMPLY WITH ALL JUDICIAL ORDERS, GOVERNMENT DIRECTIVES, AND LAWS,
REGULATIONS AND ORDINANCES, REGARDING THE REPORTING TO APPROPRIATE PUBLIC
AGENCIES OF POTENTIAL DANGERS TO PUBLIC HEALTH, SAFETY OR THE ENVIRONMENT;
AND/OR (II) MAY REPORT SUCH INFORMATION TO THIRD PARTIES PROVIDED SUCH
INFORMATION IS AGGREGATED AND DOES NOT IDENTIFY CLIENT AS THE SOURCE OF SUCH
INFORMATION.
9.
MISCELLANEOUS
ACCURATE ANALYTICAL
TESTING LLC IS AN INDEPENDENT CONTRACTOR OF CLIENT, AND NOT CLIENT’S AGENT,
EMPLOYEE OR PARTNER. THE AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MICHIGAN. THE PARTIES AGREE THAT THEY SHALL SETTLE ANY AND ALL DISPUTES
ARISING FROM THIS AGREEMENT THROUGH BINDING ARBITRATION, WHICH SHALL BE HELD IN
DETROIT, MICHIGAN PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
CLIENT IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
MICHIGAN AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MICHIGAN,
IF A BASIS FOR FEDERAL JURISDICTION EXISTS, IN ANY SUIT TO ENFORCE AN
ARBITRATION AWARD OR IN ANY OTHER SUIT. IN THE EVENT A DISPUTE RELATING TO AN
ACCURATE ANALYTICAL TESTING LLC REPORT RESULTS IN LITIGATION, AND THE CLAIMANT
DOES NOT PREVAIL AT TRIAL, THEN THE CLAIMANT SHALL PAY ALL COSTS INCURRED BY
ACCURATE ANALYTICAL TESTING LLC IN THE DEFENSE OF THE CLAIM, INCLUDING
REASONABLE ATTORNEY’S FEES. EACH PROVISION OF THE AGREEMENT SHALL BE
CONSIDERED SEPARABLE, AND IF, FOR ANY REASON, ANY PROVISION OR PROVISIONS HEREIN
ARE DETERMINED TO BE INVALID AND CONTRARY TO ANY EXISTING OR FUTURE LAW, SUCH
INVALIDITY SHALL NOT AFFECT THOSE PORTIONS OF THIS AGREEMENT THAT ARE
VALID. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT, AND SUPERSEDES ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND ORAL, BETWEEN THE PARTIES
WITH RESPECT TO THE SERVICES TO BE PROVIDED PURSUANT TO THIS AGREEMENT. THE
PROVISIONS OF THE AGREEMENT MAY ONLY BE MODIFIED BY A WRITTEN INSTRUMENT SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
|
