1. DEFINITIONS. NSF AuthenTechnologies (“NSF AuthenTechnologies”) agrees to furnish to the party ordering Services and/or Products (“Buyer”), including but not limited to laboratory work, research, and other services provided by NSF AuthenTechnologies in connection with sale or use of Products including botanical identity reference materials, and all other goods or equipment provided to Buyer are subject to the following terms and conditions. Buyer agrees that no other terms and conditions, including those of any purchase order issued by Buyer, shall apply unless explicitly incorporated herein. Upon completion of testing, NSF AuthenTechnologies shall provide an electronic written report of the results to Buyer. Samples which are received in unsatisfactory condition upon visual inspection, or which have not been clearly identified will not be tested. NSF AuthenTechnologies shall notify Buyer immediately of any samples that are unusable.
2. ACCEPTANCE. Buyer will be deemed to have accepted this Agreement when Buyer places order for Products or Services and NSF AuthenTechnologies has confirmed and/or received order form or samples, either by mail or electronically. NSF AuthenTechnologies reserves the right to accept or reject any order for Products or Services. Buyer has no right to cancel or defer shipment, delivery or installation unless agreed to in writing by NSF AuthenTechnologies. This Agreement, and all exhibits, riders or limited warranties attached hereto, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the Products or Services.
3. RATES & PAYMENT. Payment shall be made immediately in full by Buyer when Services or Products are ordered as pre-payment, either using a credit card online or by phone. For existing customers, a Purchase Order or Annual Service Agreement may be established at NSF AuthenTechnologies’ discretion, with payment due on receipt of invoice, or as stated in the Annual Service Agreement Failure to make prompt and full payment hereunder constitutes a material breach of this Agreement and affords NSF AuthenTechnologies the right to suspend its performance without liability to Buyer and cancel this Agreement and any purchase orders. Buyer has no right of setoff. If full payment is not made when due, NSF AuthenTechnologies shall be entitled to charge Buyer a 10% late fee, with an additional interest on any amount unpaid at the rate of 1.5% per month, until NSF AuthenTechnologies receives payment in full. Buyer agrees to reimburse NSF AuthenTechnologies for any and all expenses NSF AuthenTechnologies may incur, including reasonable attorneys’ fees, in taking any action contemplated by this Paragraph.
4. DISCLAIMER OF WARRANTY. Buyer will pay for work performed by NSF AuthenTechnologies regardless of the results of Services or the quality of Products. (A) NSF AUTHENTECHNOLOGIES WARRANTS FOR A PERIOD OF 30 DAYS COMMENCING ON THE DATE OF DELIVERY THAT THE PRODUCTS MEET OR EXCEED THE WRITTEN SPECIFICATIONS SET FORTH ON NSF AUTHENTECHNOLOGIES’ ORDER ACKNOWLEDGEMENT, AND ARE FREE OF MATERIAL DEFECTS. BUYER’S EXCLUSIVE REMEDY IN CONNECTION WITH THESE EXPRESS WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR, AT NSF AUTHENTECHNOLOGIES’ OPTION, A REFUND OF THE PURCHASE PRICE, IF ANY, ACTUALLY PAID BY BUYER. (B) NSF AUTHENTECHNOLOGIES MAKES NO WARRANTY AS TO RESULTS TO BE OBTAINED BY THE BUYER FROM THE USE OF ANY SERVICES AND/OR PRODUCTS AND/OR FACILITIES PROVIDED BY NSF AUTHENTECHNOLOGIES UNDER THIS AGREEMENT, AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. (C) ANALYSES ARE CARRIED OUT IN THE BEST CONDITIONS AVAILABLE TO NSF AUTHENTECHNOLOGIES IN ACCORDANCE WITH TECHNOLOGY DEVELOPED BY NSF AUTHENTECHNOLOGIES. INTERPRETATIONS ARE BASED UPON ANALYSIS RESULTS AND ON INFORMATION PROVIDED BY BUYER. INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS ARE PREPARED WITH A REASONABLE DEGREE OF CARE BUT BUYER ACKNOWLEDGES THAT IN ANY EVENT THEY CAN ONLY BE CONSIDERED AS BEING THE SIGNATORY’S OPINION. NSF AUTHENTECHNOLOGIES CANNOT GUARANTEE THAT THESE WILL ALWAYS BE CORRECT OR ABSOLUTE, PARTICULARLY IN VIEW OF THE CONSTANT EVOLUTION AND RE-EVALUATION OF SCIENTIFIC KNOWLEDGE AND REGULATIONS. IN ALL CASES IT IS THE RESPONSIBILITY OF THE BUYER TO VERIFY THE VALIDITY OF ANY INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS SUPPLIED BY NSF AUTHENTECHNOLOGIES AND ANY INQUIRIES RELATED TO THE VALIDITY OF THE RESULTS MUST BE MADE WITHIN FIFTEEN (15) DAYS OF THE REPORT DATE. (D) ANALYSIS RESULTS ARE PREPARED AND SUPPLIED EXCLUSIVELY FOR THE USE OF BUYER. (E) EACH ANALYTICAL REPORT RELATES EXCLUSIVELY TO THE PRODUCT RECEIVED BY NSF AUTHENTECHNOLOGIES AS SPECIFIED IN THE WRITTEN ACCEPTANCE OF ORDER BY NSF AUTHENTECHNOLOGIES. NSF AUTHENTECHNOLOGIES ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD NSF AUTHENTECHNOLOGIES HARMLESS, FOR THE WAY THE SAMPLE WAS COLLECTED, STORED OR DELIVERED TO NSF AUTHENTECHNOLOGIES UNLESS NSF AUTHENTECHNOLOGIES HAS SPECIFICALLY AGREED IN WRITING TO UNDERTAKE SUCH TASKS ITSELF. (F) NSF AUTHENTECHNOLOGIES ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD NSF AUTHENTECHNOLOGIES HARMLESS, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO ANY SAMPLE IN TRANSIT. BUYER WILL AT ALL TIMES BE LIABLE FOR THE SECURITY, PACKAGING, AND INSURANCE OF THE SAMPLE FROM ITS DISPATCH UNTIL IT IS DELIVERED TO THE OFFICE OR LABORATORIES OF NSF AUTHENTECHNOLOGIES. NSF AUTHENTECHNOLOGIES WILL USE COMMERCIALLY REASONABLE CARE IN HANDING AND STORING SAMPLES, BUT NSF AUTHENTECHNOLOGIES SHALL NOT BE HELD RESPONSIBLE, AND BUYER SHALL HOLD NSF AUTHENTECHNOLOGIES HARMLESS, FOR ANY LOSS OR DESTRUCTION OF SAMPLES EVEN AFTER THEIR RECEIPT AT ITS LABORATORIES. (G) BUYER WARRANTS AND REPRESENTS TO NSF AUTHENTECHNOLOGIES THAT ALL SAMPLES TO BE SENT TO NSF AUTHENTECHNOLOGIES FOR ANALYSIS SHALL BE IN A SAFE AND STABLE CONDITION AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD NSF AUTHENTECHNOLOGIES HARMLESS FOR ANY AND ALL DAMAGES WHICH NSF AUTHENTECHNOLOGIES MAY SUFFER AS A RESULTS OF ANY SAMPLE NOT BEING IN A SAFE OR STABLE CONDITION, NOTWITHSTANDING THAT BUYER MAY HAVE GIVEN AN INDICATION ON THE SAMPLE OR ANY ORDER FORM OF ANY PERCEIVED PROBLEM WITH THE SAMPLE.
5. NON-LIABILITY OF NSF AUTHENTECHNOLOGIES.
A. NSF AuthenTechnologies shall not be liable, by reason of its performance under this agreement, for any loss of profits, claims against Buyer by any third party, or consequential damages even if NSF AuthenTechnologies is advised of the possibility of such loss, claims, or damages. Buyer agrees that NSF AuthenTechnologies’ liability hereunder for damages, regardless of the form of action, shall not exceed the total of all charges paid by Buyer for the particular services rendered.
B. Buyer agrees that NSF AuthenTechnologies shall incur no liability to Buyer or to any third party for any loss, cost, claim or damage, either direct or consequential, arising from NSF AuthenTechnologies’ delay in performance or failure to perform services pursuant to this agreement.
C. NSF AuthenTechnologies shall incur no liability to Buyer or to any third party for loss or destruction of or damage to any data, equipment, or other property brought upon NSF AuthenTechnologies premises by Buyer or delivered to NSF AuthenTechnologies by Buyer in connection with this agreement. Buyer accepts all liability for risk of loss to any and all such property.
Any proceeding or dispute relating directly or indirectly to this Agreement shall be submitted to final and binding arbitration before the Judicial Arbitration and Mediation Service (“JAMS”) before a single arbitrator. The arbitrator shall have expertise in the subject matter of the dispute. The arbitration process including the selection of an arbitrator, exchanges of requests for information and the arbitration hearing, shall be completed within ninety (90) days following the initiation of arbitration. The actual arbitration hearing shall be limited to no more than two (2) days and the arbitrator shall issue a written opinion specifying the reasons for the decision within ten (10) days following the arbitration hearing. Judgment upon any arbitration award may be entered in any court having jurisdiction located in San Francisco, California. This provision will be self-executing and in the event anyone fails to appear at any properly noticed arbitration proceeding; an award may be entered against such Party notwithstanding such failure to appear. In the event of any litigation or arbitration hereunder, the arbitrator or court shall award costs and reasonable attorneys’ fees to the prevailing party. The Parties agree that any breach of the obligations under this Agreement which is otherwise not subject to remedy by monetary damages that will cause irreparable harm will be entitled to injunctive relief and other forms of equitable relief in addition to all other remedies provided in this Agreement or available at law, in any court of competent jurisdiction. This dispute resolution requirement shall survive termination of this Agreement. Any claim must be submitted to arbitration within the earlier of twelve (12) months of termination of this Agreement or twelve (12) months from the date of discovery or shall be void. The venue for arbitration shall be San Francisco, California. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
(A). Each party agrees to indemnify, defend, and hold harmless the other party, its officers, employees and agents, from and against any and all liability, loss, expense, attorneys’ fees or claims for injury or damages arising out of or in connection with this agreement, but only in proportion to and to the extent such liability, loss, expense, attorney’s fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the indemnifying party, its officers, agents or employees.
(B.) Buyer expressly understands and agrees that NSF AuthenTechnologies is solely retained for the purpose of analysis of specific samples provided to it by Buyer to determine their DNA profile. Buyer further expressly understands and agrees that NSF AuthenTechnologies offers and expresses no opinion of any kind whatsoever as to the fitness for any particular use of any sample provided to NSF AuthenTechnologies for analysis. Buyer agrees to defend and indemnify NSF AuthenTechnologies from and against any liability, loss, expense, attorney’s fees or claims for injury or damages arising out of or in connection with any claims that material or product from which any particular sample or the aggregate of any samples which Buyer provided to NSF AuthenTechnologies for analysis were not fit for the use to which Buyer put said material or product.
(C.) The parties specifically agree that NSF AuthenTechnologies’ limit of liability for any alleged breach of this agreement, whether sounding in tort or contract shall be the total amount paid to NSF AuthenTechnologies, or 500 dollars, whichever is less. In the event that NSF AuthenTechnologies is named in any action related to the services performed hereunder, client agrees to defend and indemnify NSF AuthenTechnologies against any and all such claims.
7. TESTING TURNAROUND TIME. Due to the nature of DNA testing services, NSF AuthenTechnologies does not guarantee its testing turnaround time, but estimates that most standard turnaround times for its DNA Species Identification tests are within approximately ten (10) business days. Custom species and other tests may be longer, and rush service (5 to 7 business days) may be available to expedite the testing turnaround time (with a 100% fee mark-up), however it is the responsibility of the Buyer to inquire with NSF AuthenTechnologies about its current estimated turnaround times and availability of rush service prior to placing an order.
8. RESERVATION OF RIGHTS. The sale of Products and Services covered by this Agreement shall not confer upon Buyer any license or right under any patents, trade secrets or other proprietary information owned or controlled by NSF AuthenTechnologies, or the right to otherwise utilize such proprietary information, it being specifically understood and agreed that all such rights are reserved to NSF AuthenTechnologies.
9. NSF AUTHENTECHNOLOGIES’ RIGHT TO USE DATA. NSF AuthenTechnologies shall have the unrestricted right to use for its own purposes, including publication, any data or information that it may develop in connection with or as a result of performing the services described, however all results will remain anonymous.
10. NAME. No form of the names “NSF AuthenTechnologies®” or its services shall be used in any form or manner in advertisements, reports or other information released to the public without the prior written approval of NSF AuthenTechnologies.
11. RELATIONSHIP OF THE PARTIES. The parties to this agreement shall be and remain at all times independent contractors, neither being the employee, agent, representative, or sponsor of the other in their relationship under this agreement.
12. WAIVER AND SEVERABILITY. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. If any term, covenant, warranty, remedy or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law.
13. FORCE MAJEURE. NSF AuthenTechnologies shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products or provide Services, arising from any delay or failure to perform all or any part of this Agreement as a result of causes, conduct or occurrences beyond NSF AuthenTechnologies’ reasonable control, including, but not limited to, commercial impracticability, fire, flood, earthquake, lightning, storm, accidents, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), shortages of energy or raw materials, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to NSF AuthenTechnologies.
14. ASSIGNMENT AND MODIFICATION. The rights and obligations of Buyer under this Agreement shall not be assignable with the prior written consent of NSF AuthenTechnologies. This Agreement shall not be modified, altered or amended in any respect except by a writing signed by the parties.
15. GOVERNING LAW. This Agreement and all claims and causes of action shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of California. The sole and exclusive venue for all claims and causes of action between the parties shall be via arbitration with JAMS in San Francisco CA.
16. WHOLE AGREEMENT. These Terms & Conditions constitute the entire understanding of the parties respecting the subject matter hereof and supersedes any prior understanding or agreement between them, written or oral, regarding the same subject matter, unless both parties have engaged in an Agreement that supersedes this. To the extent that the parties have entered into an Annual Service Agreement, the Annual Service Agreement is considered to be an addendum to these Terms & Conditions. In the event of an ambiguity between these Terms & Conditions and any Annual Service Agreement, these Terms & Conditions shall govern the relationship between the parties.