MQA Terms and Conditions
1. Analysis Requests.
Before performing any work, Microbiology & Quality Associates, Inc. (MQA) shall examine and review clients analysis request, which shall outline the scope and timing of work to be performed. If such request is incomplete or unclear, MQA shall consult with client before proceeding with the work. Client shall provide such additional information requested by MQA as may be necessary for the satisfactory performance of the work covered by each analysis request.
2. Responsibilities of MQA.
MQA shall perform its work in accordance with accepted standards within the industry and accepted standard operating procedures. However, MQA reserves the right to modify methods as necessary based upon experience and /or current scientific literature. MQA shall furnish all supervision, labor, facilities, equipment, materials, supplies and certifications necessary or desirable to perform its work. If client directs a manner of making tests that varies from standard or recommended procedures, client shall hold MQA harmless from all claims, damages and expenses arising out of such direction. Such variations shall be noted on analysis requests.
3. Sample Custody.
Samples accepted by MQA shall remain the property of client while in the custody of MQA. MQA shall retain samples for a period of thirty (30) days following the date of submission of its report to client. MQA shall extend the retention period if client so requests and agrees to pay for additional storage. Following the retention period, MQA will dispose of most samples upon client request. MQA reserves the right to charge for disposal of samples it considers difficult to handle or, at the option of MQA, to return samples to client in lieu of disposal. All such samples returned shall be accepted by client.
MQA is responsible for the health and safety of its employees. Client shall notify MQA of any hazardous substances present at the site where samples were acquired, or believed by client to be present in the samples, that may put MQA employees at risk. MQA may refuse acceptance or revoke acceptance of samples if it determines they present a risk to health, safety or the environment or that MQA is not authorized to accept them. Client shall promptly remove from MQA facilities any sample for which MQA revokes its acceptance.
5. Reports and Records.
Unless otherwise agreed by MQA in writing, client shall use reports prepared by MQA only for the purposes disclosed to MQA at the time of contracting. MQA shall maintain records and supporting documents for work for a period of five (5) years after completion of said work. The client shall be the owner of all such documents and MQA will keep copies.
MQA shall not provide analytical results or information on client work to any party other than client, unless client, in writing, requests information to be provided to a third party or unless disclosure by MQA is required by law.
7. Payment Terms.
Client shall pay in full the net amount of each invoice submitted by MQA within 15 days (15) days of the date thereof. Amounts not paid when due shall bear interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is less, from the date due until the date of payment.
8. Termination or Suspension.
Client shall have the right to cancel orders placed with MQA or suspend work on orders, but shall be obligated to pay for any work completed and expenses incurred during the period of time prior to cancellation or suspension. A proposal by client to change an analysis request may be regarded by MQA as an order to suspend work until agreement is reached on the effect of such change on the compensation payable to MQA and other relevant issues raised by the change.
9. Right to Stop Work.
In the event client fails to pay for services rendered within thirty (30) days after the date of any invoice from MQA, then, in addition to any other rights or remedies provided by law, MQA shall have the right to suspend any further work for client and to retain any and all of its work product not yet delivered to client. Client shall have no right to use the work of MQA for any purpose until the same has been paid for in full.
10. Alternative Dispute Resolution.
All disputes between MQA and client shall be submitted to alternative dispute resolution (ADR) as a condition precedent to litigation and other remedies provided by law. MQA and client each agree to exercise good faith efforts to resolve disputes through mediation unless both parties agree to another ADR procedure.
11. Attorneys Fees.
If either party to this agreement makes a claim against the other as to issues arising out of the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses of litigation, including reasonable attorneys fees. If MQA brings a lawsuit against client to collect the invoiced fees and expenses of MQA, client agrees to pay the reasonable collection expenses, including attorneys fees, incurred by MQA.
12. Time Limit For Making Claims.
MQA shall not be liable for damages unless suit is commenced within two (2) years of the date of injury or loss or within two (2) years of the date of completion by MQA of its services, whichever is earlier. In no event shall MQA be liable for damages unless it has been notified by client of the discovery of any claimed negligent act, error, omission or breach within sixty (60) days of the date of its discovery and unless client has given MQA an opportunity to investigate and to recommend ways client may mitigate its damages.
13. Limitation of Liability.
In no event shall MQA be liable for any incidental or consequential damages of any kind, whether or not arising out of negligence. The aggregate liability of MQA for its negligent acts and omissions and for its non-intentional breach of the agreement with client shall not exceed the fee paid to MQA for its services, and client agrees to indemnify MQA from all liabilities to others in excess of that amount. The foregoing limitation on MQAs liability does not apply to losses arising from the gross negligence of MQA or intentional breaches of contract.
Subject to the limitation on liability set forth above, MQA agrees to indemnify and hold client harmless from and against demands, damages and expenses caused by MQAs negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom MQA is legally responsible. Client shall indemnify and hold MQA harmless from and against demands, damages and expenses caused by clients negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom client is legally responsible.
15. Response to Legal Process.
Client shall compensate MQA for its services and expenses if MQA is required to respond to legal process related to its services for client. Compensable services shall include hourly charges for all MQA personnel involved in the response and attorneys fees reasonably incurred in obtaining advice concerning the response, the preparation of the testifier and appearances related to the legal process.
MQA shall, while performing its work for client, maintain in force workers compensation insurance in the amount required by law and general liability insurance in the amount of not less than One Million Dollars ($1,000,000.00).
17. Force Majeure.
Neither MQA nor client shall have any liability for nonperformance caused in whole or in part by causes beyond their reasonable control. Such causes include, but are not limited to, acts of God, civil unrest and war, acts of authorities and failure of subcontractors that could not reasonably be anticipated.
18. Relationship of the Parties.
MQA shall perform work for client as an independent contractor.
19. Employment of MQA Employees or Associates
Client shall not recruit or hire MQA associates or employees. In the even that an associate or employee is hired by the client the hiring company will compensate MQA with a 25% fee of the associate/employees new salary.
20. Entire Agreement; Governing Law.
Unless modified by a written agreement signed by client and MQA, these terms and conditions shall constitute the entire agreement between the parties as to the matters herein addressed, any prior course of dealing or trade custom notwithstanding. The agreement between MQA and client shall be governed by California law.