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 Terms and conditions
This document sets forth the terms and conditions under which Envirolab Services Pty Ltd (hereinafter "Envirolab") provides laboratory services to Clients.
Offers and Acceptance
The lodgement of an order or receipt of samples constitutes an acceptance of the following terms and conditions.
Work Orders and Sample Receipt
Clients may order services (specify a "Scope of Work") by submitting a written purchase order or a written request for analysis or by placing a telephone order. All telephone orders must be subsequently confirmed in writing by the Client. All such orders shall only be effective upon acceptance by Envirolab. Envirolab recognizes that time is of the essence in completing it’s services, and upon timely delivery of samples, Envirolab will use it’s reasonable best efforts to meet mutually agreed upon turnaround times. All turnaround times will be calculated from the date of Chain of Custody delivery acceptance by Envirolab. Chain of Custody delivery acceptance is the point in time when Envirolab reasonably determines that Envirolab can proceed within a defined scope of work following receipt, inspection of samples, and resolution of any discrepancies in chain of custody and previously agreed upon work.
Samples
Clients must provide, together with the submission of their samples, a completed and signed Chain of Custody form with adequate instructions describing the type of analysis requested and a complete and thorough written disclosure of the known or suspected presence of any hazardous substances. Hazardous substances are those defined as such by local, state and federal law. Clients shall be liable and shall pay all costs and damages resulting from a Client's failure to disclose to Envirolab that a sample contained or was suspected to contain a hazardous substance. Clients shall be liable and shall pay all costs and damages resulting from a Client's failure to comply with any local, state or federal law regarding the sample. Clients shall be liable and shall pay all costs and damages resulting from any action on the part of the Client which interrupts Envirolab's ability to process work, contaminates Envirolab's instruments or work areas or necessites any clean-up or recovery on the part of Envirolab.
Shipment
Envirolab will ensure that any substances and/or containers shipped to Client for purposes of facilitating sampling are shipped in compliance with all applicable local, state , federal or national laws, regulations and ordinances of any kind. Client bears sole responsibility for determining the applicability of compliance with all laws, regulations or ordinances applicable to the shipment of samples back to the laboratory. Client assumes full responsibility for any injury, harm, or damages arising out of the collection, handling, storage and shipment of explosive materials, biological agents, radioactive materials or other hazardous material to Envirolab.
Billing and Payment
All services provided by Envirolab shall be performed in accordance with the Quotation or Pricelist provided by Envirolab to the Client. An agreement by Envirolab and the Client to proceed absent the issuance of a Quotation shall be performed and billed in accordance with Envirolab's published price schedule in effect at the time of the agreement of the parties to proceed.
Envirolab will issue an invoice, based upon the quotation or price schedule, whichever is applicable, upon completion of a work order (Chain of Custody). Payment terms are net 30 days from date of invoice. The net amount of the invoice is due within thirty(30) days of the date of the invoice. Finance charges will be assessed on late payments equal to one and one - half percent (1.5 %) per month on the outstanding balance beyond the 30 day net period. Envirolab may refuse to perform work, demand immediate payment for work performed, withhold delivery of data, or require prepayment for services based upon a Client's failure to make timely payments or upon receipt by Envirolab of an unfavorable credit report for Client.
A minimum invoice fee of $100 GST applies.
The establishment of a trading account is subject to the completion of an account application form.
Envirolab reserves the right to undertake credit verification of all established accounts or to request up-front payment of services before services can commence.
In the event the Envirolab is serving as a sub-contractor of Client, Client is responsible for payment of Envirolab invoices regardless of non-reimbursement or late reimbursement by Client’s client.
GST
GST (Goods and Services Tax) at the applicable rate (currently 10%) will be charged in addition to the quoted prices and will shown as a separate item on tax invoices and adjustment notes.
Suspending or Stopping Envirolab's Performance
The Client may direct Envirolab to suspend a portion or all of the work to be performed. In such case, the Client will remain responsible for all work performed up until the time Envirolab became aware of Client's desire to discontinue the services. Any uncompleted analysis will be billed on a prorated basis, as determined by Envirolab. All directions by Client to suspend work must be issued to Envirolab in writing.
Professional Practice
Envirolab employees will perform in accordance with accepted industry practice and to accepted industry standards. Envirolab seeks to ensure that all services will be performed in a timely and professional manner and that all findings are technically valid. Any failure on the part of Envirolab to perform in accordance with industry standards will be corrected, provided such failure was a direct result of acts or omissions by Envirolab concerning factors deemed to be in Envirolab's scope of work pursuant to this Agreement and under Envirolab's exclusive control.
Compliance with Laws
Envirolab and the Client agree to comply with all applicable laws, ordinances, codes and regulations.
Licenses and Certifications
The Client shall provide Envirolab with notice in writing, prior to Sample Delivery Acceptance, of all licenses and certifications that it will require Envirolab to hold during performance of services by Envirolab for the Client. Envirolab will notify the Client of any revocation of a required license or certification.
Holding Times
Envirolab will initiate preparation and/or analysis within holding times, provided Sample Delivery Acceptance and complete Chain of Custody occurs within one-half (1/2) of the holding time for the test. This does not apply to tests with short holding times such as ferrous iron, Nitrite or BOD that are received on a Friday or day before a public holiday after 10am. In cases where Sample Delivery Acceptance is not made within these time periods, Envirolab will use their best efforts to meet the holding times. The holding time commitment shall be satisfied if an initial analysis is performed within the holding time and reanalysis, to comply with Quality Assurance Requirements, is performed outside the holding time. Envirolab will remedy any failure to meet a holding time commitment where such failure is due to Envirolab's negligence.
Progress Reports
Envirolab will provide the Client with information concerning the progress of the work Envirolab is performing for the Client and will notify the Client of any changes, concerns, problems or delays materially affecting performance.
Methods
Envirolab will use those analytical methodologies which are based on methodologies set by NEPM, EPA, Standard Methods for the Examination of Water and Wastewater, or other such appropriate methodologies. Envirolab may deviate from these methodologies where, in Envirolab's judgment, it is necessary or appropriate to do so. The nature or compositions of a sample are examples of factors that may require Envirolab to deviate from these methodologies. Any deviations from the analytical methodologies set forth above will be made in accordance with recognized industry standards, Quality Assurance Plans and/or referenced Standard Operating Procedures.
Data Quality Objectives (DQO’s)
Should the Client want Envirolab to perform in accordance with a mutually agreed upon DQO, the Client must seek agreement with Envirolab on such a plan before Envirolab receives the samples. Samples arriving prior to an agreement upon a DQO will be analyzed under Envirolab's standard Quality Assurance Plan then in effect. Envirolab will not be responsible for re-sampling or other costs for work that must be completed in order to comply with a DQO that is finalized subsequent to Envirolab receiving samples.
Confidentiality
Envirolab will exercise all reasonable efforts to maintain the Client's confidentiality with regard to business or technical information it receives in connection with its performance for the Client. Envirolab will use the information it receives about Clients solely for the purpose of providing services to the Client.
The Client shall treat all information and data it receives about Envirolab as proprietary and confidential. The Client shall maintain in strict confidence all such information, including but not limited to information concerning technology, procedures, and methods used by Envirolab, formulas, trade secrets, ideas, computer programs and inventions. The Client shall not disclose, and shall prevent disclosure of, confidential information to any third party without express written permission being granted by Envirolab. This provision does not prevent either party from disclosing and/or using information or data (i) known to the receiving party before being obtained or derived from the transmitting party; (ii) that is available to the public without the receiving party's fault at any time before or after it is acquired by the transmitting party; (iii) that is obtained or acquired in good faith by the receiving party from a third party who has the same information in good faith and who is not under obligation to the receiving party with respect thereto; (iv) where a written release is obtained by the receiving party from the transmitting party; (v) after five (5) years from the receipt of such information; or (vi) when required by process of law; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process.
No Warranties
Envirolab does not make any express or implied warranties of any kind to the Client. Neither this document, nor the Quotation nor any action or communication on the part of Envirolab shall lead to the issuance of an express or implied warranty to Client.
Remedy
In the case of any finding of liability, by a court of competent jurisdiction, on the part of Envirolab for damages incurred by Client, Client agrees, to the maximum extent permitted by law, to limit an award for damages, to one hundred dollars ($100.00) or to the fee charged to the Client by Envirolab for the relevant services, whichever is greater. This limitation applies regardless of the cause of action or legal theory pled or asserted. This remedy is to be exclusive and in lieu of any other available in law or in equity. Indemnification, releases from liability and limitations of liability shall apply, not withstanding the fault, negligence, or strict liability of the party to be indemnified, released or whose liability is limited, except to the extent that there is willful misconduct.
Challenge to results
The Client shall pay Envirolab for all services performed on their behalf and for all results utilized by the Client or the Client's client, regardless of any allegation on the part of the Client or Client's client that the results issued by Envirolab did not conform with Envirolab's responsibilities as set forth in these terms and conditions. In every instance, Envirolab shall be given the opportunity to defend its data directly with any person or entity challenging its results. Should Envirolab be prohibited or hindered from directly defending its data, all sums owed to Envirolab by the Client shall be immediately due and payable and no refund for sums paid by the Client will be issued by Envirolab.
Ownership of Data
Data or information provided to Envirolab by the Client shall remain the Client's property. Upon full payment to Envirolab for all services provided by Envirolab, data or information generated by Envirolab for the Client shall become the Client's property. Envirolab will retain exclusive ownership of any and all analytical methods, QA/QC protocols, and equipment developed by Envirolab for performance of work by Envirolab.
Choice of Laboratory
Unless the Client has specified, in a timely manner, a particular location where Envirolab is to perform its services for the Client, Envirolab may perform services for the Client at any laboratory in its network. Envirolab retains the right, at its discretion, to subcontract services ordered by the Client to another laboratory or other laboratories.
Sample Disposal or Return
Envirolab will dispose of all remaining soil samples 2 months following receipt of samples. Envirolab will dispose of all remaining water samples 1 month following receipt of samples. Envirolab complies with federal, state and local laws when disposing of samples. Should Client desire Envirolab retain the samples for longer periods the Client must notify Envirolab in writing. The Client, in accordance with Envirolab's fee schedule, will owe an additional sample retention charge in effect at the time of the request. Samples high in some contaminants such as dioxin, PCB’s, asbestos etc will be returned to client for disposal at clients expense.
Record Retention
Envirolab will retain records pertaining to the work performed for the Client for a period of three (3) years following the issuance of a work report. Should Client desire Envirolab maintain the records in excess of three years, the Client must notify Envirolab in writing. The Client, in accordance with Envirolab's fee schedule, will owe an additional record retention charge in effect at the time of the request.
Litigation Services
The Client will be required to pay and/or reimburse Envirolab for all costs incurred, including the time spent by Envirolab employees and officers, should Envirolab be required to respond to legal process related to services it has provided to the Client or should the Client request file searches, additional reporting, or a consultation that is above and beyond that usually offered in the normal course of business. Client will pay for all time expended by Envirolab employees and officers in accordance with their hourly rate as set forth on the fee schedule published and in effect at the relevant time. In addition to the above enumerated charges, Client will pay all legal costs incurred by Envirolab in obtaining legal advice, preparing a response and issuing a legal response to the legal process, and in preparing and issuing legal testimony, whether oral or in writing. Client's agreement to pay and/or reimburse Envirolab for the litigation services and costs referenced above shall remain in full force and effect for 10 years from the last date that Envirolab completes providing services for the Client.
Insurance
Envirolab shall maintain insurance for protection from claims under Worker's Compensation Acts; claims for damages because of bodily injury including personal injury, sickness or disease, or death of any and all employees or of any person other than such employees; and from claims for damages because of injury to or destruction of property, including loss of use resulting therefrom; and from claims arising out of the performance of professional services, caused by an error, omission or negligent act for which Envirolab is liable; and for claims arising from Breach of Contract.
Sample Delivery Acceptance
Sample Delivery Acceptance is defined as the point in time after which Envirolab has received and inspected the samples and received project guidance regarding the work to be done and resolved any discrepancies in the Chain of Custody Forms and made a determination that it can proceed with the defined work. Envirolab reserves the right to refuse or reject Sample Delivery Acceptance for any sample that it deems to be: (i) of unsuitable volume; (ii) a health, safety, environmental or other risk; or (iii) a sample that will fail to meet holding times either due to the passage of more than 48 hours from the time of sampling or the passage of half the holding time for the requested test, whichever is less; (iv) any other sample that Envirolab deems to refuse.
Risk of Loss
The entire risk of loss or damage to samples remains with the Client, this includes subcontracted courier services by Envirolab. The Client will be responsible and Envirolab will not have any responsibility for the action or inaction of any Client or carrier shipping or delivering any sample to or from Envirolab's premises. As set forth in Paragraph 2 above, regarding samples, the Client is responsible for determining whether or not the sample it is shipping contains a hazardous substance as defined by law, and for taking all actions necessary to ensure the sample it ships is packaged, labeled, transported and delivered properly and in accordance with all local, state and federal laws.
Entire Agreement
These Terms and Conditions, together with any duly authorized and executed addendum, embody the entire agreement of the parties and provide the exclusive remedies available to the Client. These Terms and Conditions supersede all previous verbal and written communications, representations and agreements between the Client and Envirolab. No modification or waiver of any provision of these Terms and Conditions shall be binding on either party unless made in writing and executed by the Client and Envirolab.
These terms and conditions are deemed to have been accepted by the client by the submission of samples.
Governing Law
These Terms and Conditions, and any transactions and agreements to which they apply, shall be governed and construed, both as to interpretation and performance, by the laws of the State of NSW. The Client and Envirolab agree to submit to the jurisdiction of the State of NSW and the venue for any action arising out of the Terms and Conditions set forth herein will be in Sydney, NSW.
Severability
The provisions of these Terms and Conditions are severable. The invalidity or unenforceability, in whole or in part, of any provision, term or condition herein shall not invalidate the remainder of these Terms and Conditions.
Waiver
No waiver of either party of any provision, term or condition herein nor of any obligation hereunder shall constitute a waiver of any subsequent breach. No waiver shall be inferred by a party's conduct. All waivers must be in writing.
Force Majeure
Envirolab shall not be liable for any failure to perform the contract or for any delay or non-delivery due to strikes , fires, explosion, flood, riot, lockouts, injunction, interruption of transportation, accidents, inability to obtain supplies at reasonable prices, war or apprehension of war, force majeure, government action, or any other circumstances beyond Envirolab’s control.
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