These General Terms and Conditions of Service (Terms) shall govern all orders for and purchases of services from Global Pharma Analytics, LLC ("GPA"), including analytical chemistry tests, unless other terms are specifically designated by GPA to apply to a specific service, or GPA and client have entered into a written agreement that expressly agrees to be bound by terms which supersede or replace these Terms with respect to the services written agreement (See Section 12, SOLE TERMS, INCONSISTENCIES, ORDER OF PRECEDENCE). Any company, person, or other entity submitting a purchase order for services from GPA shall be referred to herein generically a "client."
The price for any service (hereinafter collectively "Service or Services") shall be the price stated in GPA’s quotation to client for the Service ("GPA’s Quotation") or, if GPA has not issued a quotation, GPA’s list price or current billable hour price of the Service at the time GPA receives client’s purchase order. GPA’s Quotations are valid for 30 days from the quotation date unless otherwise stated in GPA’s Quotation. If GPA’s quotation pricing is contingent upon purchase volume or quantity, then GPA reserves the right to readjust the price, up or down, to reflect the purchase volume or quantity of services which actually occurred.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS.
“GPA requires a down payment in advance of 50% of the total quote to be submitted prior to scheduling analytical services.” Payment terms are net 30 days from date of GPA’s invoice. If GPA deems client to be or to have become uncreditworthy, GPA shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. If payment is not received by the due date, GPA may assess and client agrees to pay a late payment charge at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If GPA retains a collection agency or attorney to collect unpaid amounts, GPA may invoice client for, and client will pay, all reasonable costs of collection, including without limitation reasonable attorney’s fees.
3. CREDIT TERMS.
GPA may, at any time and in its sole discretion, offer, limit, or cancel credit to client as to time and amount, suspend testing or Service, demand payment in cash before delivery of results or conduct of Service, or demand other assurances of client’s performance. If client fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, GPA may, without prejudice to any other right or remedy GPA may have: (i) by notice to client, treat such failure or refusal as a repudiation by client of that portion of client’s order not then fully performed, whereupon GPA may cancel all further performance, and any amounts unpaid for non-cancelled Service shall immediately become due and payable; or (ii) make performance under reservation of a security interest, whereby the client will execute any documents necessary to create and perfect this security, and demand payment against tender of analysis results or security title documents.
4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS.
GPA may accept or reject any client purchase order for Service in whole or in part. If a purchase order is accepted, GPA will use reasonable efforts to perform Services subject to the purchase order within a reasonable time after ordered, or, if a service commencement date is indicated in GPA’s Quotation or otherwise agreed upon in writing by an authorized representative of GPA, on or before such date. GPA may make delivery of Services in installments, and each installment shall be deemed to be a separate sale. GPA may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in GPA’s Quotation, risk of loss with respect to all products or samples sent from client to GPA shall not pass from client to GPA upon transfer of possession of the product to a common, other third party carrier, or directly to GPA’s facility; client shall retain all risk of loss of product or samples related to testing. Client shall be responsible for costs associated with return or disposal of samples.
5. CANCELLATION AND DEFERRAL. CLIENT MAY NOT CANCEL ANY PURCHASE ORDER.
Because it may become necessary, from time to time, for GPA to incur costs in preparation to process samples after receipt of a purchase order, client may not cancel an order for services, such as analytical chemistry services, once purchase order has been received by GPA without written consent of GPA. In the event cancellation is accepted by GPA, GPA may charge client for the Services performed, or portion thereof, at time of cancellation, plus a service charge of 10% of the original purchase order amount to cover losses associated with cancellation of the project.
6. REJECTION AND RETURN OF PRODUCT.
In the event GPA receives any product from client in a condition in which the container appears to be in nonconformance with the container’s standard form, such as a leaking container, GPA may, at GPA’s sole discretion, contact appropriate hazardous materials contractors to quarantine or remove the product at client’s expense. Furthermore, GPA may reject any sample delivery that does not contain a properly completed purchase order, including a samples submission form with reference to these terms, and any certificates for transportation of hazardous materials as may be required by law.
7. LIMITED WARRANTY.
GPA makes only those warranties with respect to Service expressly identified as "warranties,” if any, in a written document signed by both parties. Warranties are made only to the client purchasing the Service directly from GPA, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by GPA. ANY SERVICE NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE GPA’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO SERVICE AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE. IF A COURT FINDS LIABILITY ON THE PART OF GPA BASED ON A CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS, CLIENT EXPRESSLY AGREES THAT GPA’S LIABILITY IS LIMITED TO THE PRICE PAID TO GPA BY CLIENT FOR THE SERVICE AND CLIENT FURTHER AGREES TO NOTIFY ANY POSSIBLE, INTENDED OR UNINTENDED, THIRD PARTY BENEFICIARIES OF THIS LIMITATION OF LIABILITY IN ADVANCE OF THE PROVISION OF RESULTS TO SUCH PARTIES. ANY RESULTS REPORTED BY GPA ARE RELEVANT ONLY FOR THE ACTUAL MATERIALS, SAMPLES OR SUB-SAMPLES TESTED BY GPA; GPA MAKES NO CLAIMS RELATED TO ANY MATERIAL NOT TESTED AT OR BY GPA.
8. COMPLIANCE WITH LAWS.
The parties understand and agree that services have not received any governmental approval, clearance, or similar designation ("Service Approvals"), do not satisfy the requirements of any governmental body or other organization; the client is solely responsible for compliance with any and all applicable laws, regulations, and governmental policies that pertain to its use of the results of Services.
9. FORCE MAJEURE.
GPA shall not be liable for any delay or failure of performance, including without limitation failure to deliver product or failure to perform a service, where such delay or failure arises or results from any cause beyond GPA’s reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, GPA shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and GPA shall also have the right, to the extent necessary in GPA’s reasonable judgment, to apportion services then available for delivery of results fairly among its various customers in such manner as GPA may consider equitable. Liability of GPA for any delay or failure of performance, including without limitation failure to deliver product or failure to perform a service, where such delay or failure arises or results from any cause that may have been within GPA’s control, is limited to the price paid to GPA by the client for the product or service.
10. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL GPA BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY CLIENT OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY SERVICES, GPA’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF SERVICES OR PERFORMANCE OF SERVICES, GPA’S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY RESULTS OF SERVICE, OR THE PERFORMANCE BY GPA OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT GPA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF PRODUCT BY CLIENT OR THIRD PARTY, STORAGE COSTS, PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS. In any case, the parties expressly agree that GPA’s maximum liability is limited to the price paid by client to GPA for services, wherein the payment amount is calculated on the smallest discretely separable unit of Service.
11. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE.
These Terms, together with GPA’s Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of GPA with the title of "Director" or higher "(collectively, "GPA’s Terms"), and client’s statement on its purchase order (if accepted by GPA) of the name or identity of the Service(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on client’s purchase order), constitute the complete, exclusive and entire agreement between GPA and client with respect to purchases of Service, and GPA’s offer to sell Services is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of client’s additional or different terms and conditions, which are hereby rejected and shall be void. Client’s submission of a purchase order or other instrument for or regarding the purchase of Services, whether or not in response to an GPA Quotation, shall be deemed acceptance of and agreement to GPA’s Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity of services or products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in client’s purchase order or other instrument or elsewhere. ANY ACCEPTANCE BY GPA OF ANY OFFER OF CLIENT IS EXPRESSLY CONDITIONED ON CLIENT’S ASSENT TO AND ACCEPTANCE OF GPA’S TERMS TO THE EXTENT THEY ARE ADDITIONAL OR DIFFERENT TERMS FROM THOSE OF CLIENT’S OFFER. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on GPA’s Quotation or other agreement signed by an authorized representative of GPA, the terms appearing on GPA’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, provided these terms were expressly created or assented to by an authorized GPA representative, and all other provisions of these Terms shall remain in full force and effect.
12. NO IMPLIED RIGHTS.
Nothing in these Terms shall be deemed or construed as granting client any right to be supplied with any service, or component thereof, beyond those ordered by client and supplied by GPA in accordance with these Terms. GPA shall not release, nor shall GPA be required to release, any information concerning GPA’s proprietary standard operating procedures, components of the GPA quality management system, or other information regarding the internal processes of GPA in performing services for client.
13. CHOICE OF LAW.
Any contract between GPA and client relating to Services, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of Palm Beach County, State of Florida, U.S.A. unless another jurisdiction and venue are expressly agreed to, in writing, by a Director level, or higher, officer of GPA.
No amendment of GPA’s Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both GPA and client. GPA’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. Any images, biographies, or statements on the GPA website are not an indication of or commitment to the instrumentation, personnel, or processes at GPA or which will be assigned to a given project, but are provided exclusively for illustrative purposes, which may include stock photos. Contacting GPA by email or providing GPA with an email address is consent to be contacted by GPA.
15. THIRD PARTY SERVICES AND SERVICES.
Client acknowledges and agrees that third party services and services acquired via any GPA sales channels are governed by contractual terms provided by the sellers of such third party services and services. GPA has no control over and does not guarantee the quality or safety of the third party services or products, the truth or accuracy of third parties’ content or listings, the ability of third party sellers to sell services or products, the timely delivery of such services or products, or that the third party seller will complete a transaction. Client acknowledges that when the client makes a purchase from or enters into a license with a third party seller via a GPA sales channel, GPA is not a party to such transaction and the contractual relationship is solely between client and the third party seller. Client further agrees that it is client’s sole responsibility to pre-approve any third party seller that client conducts business with, and that client assumes sole responsibility for any risks or liabilities that may arise out of such transaction. Client acknowledges that GPA makes no representations or warranties regarding the creditworthiness or any other matter regarding any services or services of third parties. It is at the client’s sole discretion to reject any transaction with a third party seller and obtain the same or alternate services through other channels. Client irrevocably waives and releases GPA from any claim that client may have, now or in the future, known or unknown, as a result of the content, action or inaction of third party sellers, or services or services that client purchases from third party sellers via GPA. In the event GPA uses a third party supplier of products or services to fulfill orders for client, whether disclosed or not disclosed to client, without disclosing the name of the service provider to client, then GPA’s Terms shall apply to that product or service.
16. CLIENT REPRESENTATIONS.
By submitting an order, client represents, warrants and agrees that client will provide GPA with all information known to client regarding biological, radiological, and chemical hazards associated with the handling, transport, exposure to or other use of any materials supplied to GPA by client. Furthermore, client represents, warrants and agrees that client will provide GPA, in advance of services being performed, all information known to client regarding any intended or possible uses of the services in or for regulatory markets or in uses which may be prohibited by law.
17. CONFIDENTIAL INFORMATION OF CLIENT.
From time to time client may share Confidential Information of Client with GPA. If such information is expressly labeled as confidential information, GPA will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Confidential Information of Client to any third party. This undertaking of confidentiality shall not apply to, and GPA shall have no obligations under this paragraph with respect to, any Confidential Information of Client that (a) was in GPA’s possession before receipt from client, (b) is or becomes a matter of public knowledge or part of the public domain through no fault of GPA, (c) is rightfully received by GPA from a third party that was not obliged to keep such information confidential, (d) is developed by GPA without reference to Confidential Information of Client, or (e) is disclosed by GPA with client’s prior written approval. GPA is granted, for future use with other clients, a shop right in any intellectual property developed at GPA, such as the parameters of a method development or method verification, with the express understanding that Confidential Information of Client shall be protected as proscribed herein. Notwithstanding the foregoing, GPA may disclose Confidential Information of Client to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that GPA takes reasonable and lawful actions to avoid or minimize the extent of such disclosure.