Terms and Conditions
Please review the list of Terms and Conditions (below) relating to the services provided by Elliott Laboratories. Don't hesitate to contact us if you have any questions about this document. You can call us at 408-245-7800 or send an email to info@elliottlabs.com.
1. TERMS AND CONDITIONS OF ACCEPTANCE:
(a) This Quotation is offered by Seller for acceptance within sixty (60) calendar days from the date printed on the face of this Quotation, unless a longer time period is specified in the Quotation. This Quotation is withdrawn if not formally accepted by: (1) a return to Seller of a copy of the Quotation signed by Buyer, or (2) a signed Purchase Order referencing the NTS Quotation number, within the designated period. No other form of acceptance of this Quotation is valid or will be recognized or accepted. Seller shall commence work only after receipt of one of the above identified acceptance instruments. Additional or differing terms or conditions proposed by Buyer or included in Buyer's purchase order, attachments thereto, or contract or acceptance are hereby objected to by Seller and shall have no effect unless expressly accepted in writing by Seller.
(b) Seller's acceptance of any purchase order is contingent upon Seller's approval of Buyer's credit. Seller is under no obligation to enter an order acknowledgement and may rescind this Quotation at any time prior to Buyer's unqualified acceptance. Buyer agrees that Seller's acknowledgement of receipt of Buyer's purchase order or a signed Seller's Quotation is conditioned upon and subject to Seller's Terms and Conditions contained herein, and no other terms or conditions shall apply.
(c) BUYER'S SUBMISSION OF ITEMS FOR TEST SHALL CONSTITUTE BUYER'S UNQUALIFIED WITHDRAWAL OF ALL PRIOR AND CURRENT OBJECTIONS TO, AND ACCEPTANCE, WITHOUT ADDITIONS OR CHANGES, OF THE PRICES, TERMS AND CONDITIONS CONTAINED IN SELLER'S QUOTATION, UNLESS SELLER HAS EXPLICITLY AGREED TO OTHER PRICES, TERMS OR CONDITIONS IN A SIGNED WRITING. NO OTHER DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL APPLY.
2. BUYER FURNISHED EQUIPMENT AND LABOR:
(a) Unless otherwise specified in this Quotation, the prices in this Quotation are based upon the timely receipt of all Buyer-furnished test articles, technical data, and support equipment in operating condition prior to the date such items are required to support the testing schedule. Any Buyer supplied technical support labor must be available on the same date. Buyer shall supply all mating connectors, hardware, adapters and vibration fixtures compatible with Seller's equipment, unless specific exemptions to this requirement are identified in the Quotation. Buyer is responsible for test item operation unless specific exemptions to this requirement are identified in the Quotation. If the Buyer-furnished items and labor are not so provided, the prices and schedule quoted shall be subject to change. All test articles and equipment must be received by Seller in one (1) lot, unless specific exemptions to this requirement are identified in the Quotation.
(b) SELLER'S LIABILITY FOR BUYER FURNISHED PROPERTY AND TEST ITEMS SHALL BE AS SET FORTH BELOW IN ARTICLE 8 OF THESE NTS GENERAL TERMS AND CONDITIONS. Seller may dispose of any Buyer-supplied articles, supplies, specifications, fixtures, special tooling, drawings or related items provided by the Buyer, and which are unclaimed within sixty (60) calendar days after Seller gives notice to Buyer to remove such items from Seller's facility. Buyer-supplied equipment at Seller's facilities shall be subject to additional charges for disposal, storage, transportation, and other charges, to the extent applicable, where Buyer does not remove the property from Seller's facility or provide timely disposition instructions following notice to remove such items.
(c) Buyer warrants that unless specifically and individually identified in writing, data provided to Seller does not contain information required in the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of the test articles. Buyer also warrants that such information cannot be obtained by casual inspection of the assembled items provided for test, unless Buyer notifies Seller to the contrary. Buyer agrees to cooperate with Seller by providing any information required under the Arms Control Export Act, or the implementing International Traffic in Arms Regulations (ITAR).
(d) BUYER MUST NOTIFY SELLER, IN WRITING, IN ADVANCE OF COMMENCEMENT OF ANY TESTING OR DELIVERY OF THEIR PRODUCT IF THE VALUE OF THEIR PRODUCT EXCEEDS $2,000,000 US.
3. PRICES: The prices contained herein are predicated upon the use of these NTS General Terms and Conditions. The use of different or additional terms and conditions may result in higher prices. When a quotation involves multiple items, the Quotation is non-severable. If the Quotation is made prior to receipt and review by Seller of all applicable specifications and proposed contract documents, prices quoted are subject to revision once missing documents are received. Prices quoted are "Market Prices" (defined in FAR §2.101(a)"Commercial Items"(6)ii ), are predicated upon the existence of viable competitors, are valid only for the purpose of this Quotation, and may not be utilized as a basis for pricing similar, repeat, or subsequent testing. The prices for procedures and reports include one (1) revision; additional revisions will be separately priced. Any detail of the prices proposed is budgetary and may not be used as a basis for pricing increments or for pricing subsequent or repeat tests. All prices are Free on Board Seller's facility, unless otherwise specified. All prices quoted herein are exclusive of taxes. Buyer agrees that all taxes, interest and penalties thereon, if any, relating to the services performed or the products produced or sold hereunder, are to be paid when due by the Buyer.
Buyer hereby acknowledges and agrees that: (a) Seller's services are not provided at a fixed price and; (b) any cost estimates provided by Seller to Buyer are for budgetary purposes only and such estimates do not include any agency application fees, unless otherwise expressly provided in the Project Proposal. Buyer further acknowledges and agrees to the following:
(a) Fees: (i) Buyer shall pay for any time spent by Seller to set-up and break-down equipment at the Buyer site and/or Seller's premises; (ii) Some tests and safety projects are stipulated to have a specific minimum billing regardless of the actual time reserved; (iii) Buyer shall pay for long distance travel by Seller for one direction and shall pay for local travel by Seller for both directions; (iv) For a reserved test session, Buyer shall be invoiced for 100% of the reserved test session starting at the beginning of the test session. Test sessions are booked in 2, 4 and 8 hour blocks, except for Open Area test sites during weekdays, which are booked in 8 hour blocks, or unless otherwise specifically called out in the Project Proposal; (v) The minimum Buyer purchase order shall be for two (2) hours; (vi) Seller may at its discretion require a deposit from Buyer prior to Seller's initiation of services; (vii) If a test is scheduled across multiple shifts (non-continuous times, or more than 8 hours), then cancellation charges (see section 5 below) and minimum billing are to be assessed for each scheduled portion of the test. (viii) After the minimum billing requirement is met, services provided by Seller to Buyer will be billed to Buyer at the rates set forth by Seller for the actual time spent by Seller on such services. Billing occurs every two weeks and does not necessarily follow agency or project completion; and (ix) Safety project(s) expedite fees start at 30% of total project cost and are quoted on a case by case basis.
(b) Expenses: (i) All expenses, including but not limited to expenses relating to telephone, fax transmission, air fare, supplies, postage, shipping and handling, transit insurance, agency standards, outside facilities, hotel and meals, equipment rental, shall be billed by Seller to Buyer with a fifteen percent (15%) surcharge and such expenses are not generally included in a Project Proposal, unless otherwise expressly provided therein; and (ii) Buyer shall be invoiced for mileage at the IRS approved rate.
4. SELLER'S OBLIGATIONS:
(a) The Seller agrees to perform the services quoted in compliance with procedures and specifications furnished by Buyer and specifically incorporated into Seller's Quotation, if any, at the time of quotation, except for deviations as noted by the Seller in this Quotation. In any event or instance not covered by the Buyer's specifications, the Seller reserves the right to perform services in accordance with its standard practices. Seller shall not be responsible for errors or omissions due to the Buyer's supplied or approved procedures, specifications, or other supplied information. Seller shall not be responsible for incompatibility of the Buyer's supplied or approved materials, specifications or test specimens.
(b) Buyer agrees that Seller's sole obligation is to perform services in a workmanlike manner, exercising a reasonable degree of care consistent with testing services industry standard practices, and report the results in accordance with applicable specifications and instructions received from Buyer's authorized representatives. Seller does not render opinions as to the suitability of the item tested for any intended purposes.
(c) Seller agrees that all work performed for formal certification, accompanied by an accredited certification report, will be done in accordance with all relevant ISO 17025 requirements for standards within Seller's accredited scope. However, testing performed by Seller for other purposes (such as engineering evaluations, preliminary testing, debug testing, etc) may be performed in accordance with selected ISO 17025 requirements to offer Buyer a more cost-effective and less time-consuming process. By contracting Seller to perform such services, Buyer overtly acknowledge and accept that work performed for purposes other than formal certifications may adhere only to selected requirements of ISO 17025. Additionally, some work performed by Seller's subcontractors may not be performed in accordance with all A2LA or ISO 17025 requirements and would therefore be offered as non-accredited services. It is the Buyer's responsibility to confirm whether or not subcontracted work will be required to be in accordance with any specific accreditation requirement before work commences, otherwise non-accredited subcontracted services will be quoted and delivered. Contracting with Seller to provide such subcontracted services constitutes acknowledgment and acceptance of these conditions.
5. TOOLING AND SETUPS: Where applicable, tooling and setups quoted by Seller reflect costs and special designs to adapt Buyer's equipment to Seller's proprietary test fixtures, and neither the tooling nor the setups will be released from the Seller's facility. Except as otherwise agreed in writing, all right, title and interest to Seller's fixtures, special tooling drawings, design and related data is, and shall remain, the property of the Seller.
6. SCHEDULES: The estimated schedule and pricing are based upon on the Seller's current commitments, Seller's standard business hours (nine (9) hours per day, Monday through Friday) and the Seller's acceptance of the Buyer's supplied documents and materials. Firm schedules will be acknowledged by the Seller from time to time. ALL WORK SCHEDULE DATES ARE APPROXIMATE. All orders are subject to reschedule due to the possibility of Government priority orders superseding a normal schedule. Performance of services is subject to delays caused by acts of God, labor difficulties, shutdowns, the availability of utilities or materials, equipment breakdown, unforeseen engineering problems, government regulations, priorities, preemption, or other causes beyond Seller's control.
7. CHANGE ORDERS, INTERRUPTIONS, AND TERMINATION: Seller is not obligated to perform any additional services not specifically referenced in this Quotation, including, but not limited to, repeat testing. If Seller agrees to perform additional services requested by Buyer's change order, the Seller's price and schedule shall be adjusted for the additional work commensurate with the changed requirements, the status of Seller's work in process at the time of the Seller's receipt of the Buyer's change notice, and the Seller's written acceptance of the changed work. If for any reason beyond Seller's control, the original test program is interrupted at Buyer's direction, or a failure of items under test, or a failure of Buyer's support equipment occurs, standby charges will accrue until resumption or termination of testing is directed by Buyer in writing. Re-setup charges may apply at resumption of testing. Rescheduling shall be at the discretion of Seller. Termination or cancellation, whether partial or complete, may be made by Buyer, subject to payment of cancellation charges based upon status of work completed or in process, commitments made and facilities allocated. Additional services (e.g., repeat tests) necessitated by specimen failure or Buyer provided equipment malfunctions will be construed as Change Orders, and the appropriate charges will be added accordingly. If Buyer should disagree, for any reason, with the results or conclusions of the testing and require additional work for verification, Seller shall be entitled to the cost of the additional work required to verify results.
Cancellation and No Shows: In the event that Buyer desires to cancel a test session, a minimum prior cancellation notice of two business days, Monday-Friday from 8AM to 5PM, shall be required. Buyer cancellations less than two days prior to a test session will be assessed a 75% cancellation charge. Cancellations the same day as the test session, "no-shows", session's scheduled with no product tested, and test failures will be assessed for 100% of the time booked in the scheduled test session. For purposes of this Agreement, Buyer's failure to arrive by the end of the first scheduled hour of a test session will be deemed a "no show" unless prior arrangements have been made. In the event that Buyer desires to cancel a product safety test session with a certifying agency, a minimum prior cancellation notice of three business days, Monday-Friday, shall be required. Buyer cancellations two days prior to a safety test session will be assessed a four hour cancellation fee. Reports cannot be canceled once work has begun. Reports placed on hold by a Buyer (either directly or indirectly by a delay in providing information necessary to complete a report) will be invoiced at 50%, 75%, or 100% based upon the amount of work completed when the report is placed on hold.
8. LIMITATIONS OF LIABILITY:
(a) Buyer agrees that regardless of the claim, form or theory of law applied, including, but not limited to negligence, other torts, warranty, strict liability, reckless conduct or intentional conduct, under which any legal or equitable action may be brought against Seller by any party, Seller shall not be liable for any damages, costs or expenses, whether direct, indirect, special, consequential, exemplary, punitive or compensatory, including but not limited to loss of profits, except as set forth herein, and only when Seller is decided to be liable by a court of competent jurisdiction. Seller is neither an insurer nor a guarantor and disclaims all liability in such capacity. Buyer is not a co-insured under Seller's insurance. BUYERS SEEKING A GUARANTEE AGAINST LOSS OR DAMAGE SHOULD OBTAIN APPROPRIATE INSURANCE.
(b) Buyer acknowledges that there are hazards associated with the services and equipment provided under this Agreement, including unattended test operations, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect its employees and others exposed to such hazards. Buyer shall hold harmless, indemnify and defend Seller from and against any liability incurred by Seller because such warnings were not made.
(c) Buyer assumes all risk and liability for loss, damages or injury to persons or to property of Buyer or others arising out of the services or equipment provided by Seller. Each party hereby agrees to indemnify and hold harmless the other party from any form of action, lawsuit, claims, losses, costs (including attorney's fees), expenses or damages arising from the injury, illness or death of the indemnifying party's customers, employees, agents or invitees directly or indirectly related to the services or equipment supplied by Seller under this Agreement, except to the extend such loss, damage, injury, illness or death is proven to have been caused by, resulted from, or in any way contributed to the negligence of the party seeking to be indemnified. Seller's liability for such claims shall be strictly limited to the amount of reimbursement from Seller's insurance.
(d) All services furnished by Seller, and all tests performed utilizing Seller's equipment and facilities, whether conducted by Seller's or Buyer's personnel, shall be at the risk of Buyer. Seller shall not be liable for maintenance, loss, damage, destruction or theft of property furnished by Buyer, nor does Seller insure Buyer's property, while such property is on Seller's premises, whether under test, or otherwise under Seller's care, custody or control. Transfer of Property to Seller's premises shall not constitute a bailment or transfer of title to Seller. Buyer furnished Government Property shall remain under the stewardship and control of the Buyer's Property Management System. Federal Acquisition Regulation (FAR) §52.245-1(h), wherein the term "Seller" shall be substituted for "Contractor" and "Buyer" shall be substituted for "Government", is applicable to all public and private contracts or subcontracts under this Agreement. This Agreement makes no other liability or insurance provisions for Buyer's property.
(e) The Seller shall not be liable for any damages arising from delay in the performance of services, if such delay is due to a cause beyond reasonable control of the Seller. Any event beyond the Seller's reasonable control shall not constitute cause for cancellation of Buyer's Purchase Order, but shall extend the Seller's time to perform on a business-day for business-day basis for a period equal to the duration of the delay.
(f) Seller shall have the right to stop work and adjust prices or schedules, or terminate this Agreement, without default, breach or liability, if unforeseen engineering difficulties, impossibility to perform or mistake in bid are detected after the work is begun. In the event of such a termination, Buyer's liability is limited to payment for the work performed to date of termination, and termination costs to cover closure of the work.
Buyer is hereby advised, that in Sellers opinion, Buyer equipment that is provided for susceptibility or product safety testing should not subsequently be sold or used in reliability studies due to the likelihood of damage that may have occurred during testing.
9. WARRANTIES: Seller warrants that the services provided hereunder shall conform to the specifications and express warranties set forth in these Terms and Conditions and that at the time of delivery, Seller shall have the right to perform such services and that the services and any resulting report shall be delivered upon due payment free of encumbrances. Services performed by Seller will be performed in a workmanlike manner exercising a reasonable degree of care consistent with testing services industry standard practice. Seller will modify or correct any such Services which have not been so performed if written notice of any such failure is given to Seller within sixty (60) calendar days of the date such service was performed. Seller warrants that the Services provided hereunder shall meet the Specifications and Requirements of this Quotation unless exception is taken to the applicable specification in writing by Seller. No claim of any kind with respect to the conformance of the Services to the foregoing Specifications, whether or not based on negligence, warranty, strict liability or any other theory of law, will be greater than the price of the nonconforming Services in respect to which such claim is made. Seller's sole warranty liability, and Buyer's exclusive remedy, shall be retest when retest is performed by Seller. The foregoing constitutes the Buyer's exclusive remedy and Seller's sole obligation with respect to any such claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS PARAGRAPH. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS PROVIDED IN THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER THEORY OF LAW, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. TERMS OF PAYMENT:
(a) All invoices are due and payable upon presentation unless other terms are agreed upon in writing prior to the commencement of services. Failure to make such payments when due shall entitle Seller to discontinue services without further notice and such failure may result in additional requirements or deposit requirements being imposed before work is resumed.
(b) Whenever credit terms are extended in any public or private contract or subcontract under this Agreement, it is with the express agreement that the terms are consistent with the Prompt Payment Act as implemented in FAR §52.232-25 Alternate I. The applicable interest rate for late payments and penalties will be one and one half percent (1.5%) per month, unless government mandated interest rates are agreed upon in writing prior to the commencement of services. Government mandated interest rates can be found at http://www.fms.treas.gov/prompt/. Payment of Seller's invoices by Buyer shall not be delayed by, or contingent upon, approval or payment by Buyer's customer or any other third party. Any test program or order requiring more than ten (10) calendar days to complete will be billed on a Line Item or Milestone basis. Buyer must separately list the billable Line items or Milestones in the purchase order issued to NTS or state explicitly that they accept Line Item or Milestone Billings.
(c) Unless otherwise required by law, if a petition is brought by or against Buyer under any present or future bankruptcy or insolvency laws seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief with respect to Buyer, or if Buyer shall make any assignment for the benefit of creditors, or if a receiver is appointed for Buyer, or if Buyer shall fail to make payments in accordance with the terms of this Agreement, or if in Seller's opinion Buyer's credit has been impaired, Seller may, at its option, terminate this Agreement by written notice to Buyer or impose such new payment terms, including cash on delivery, auto pay or a security agreement as it deems adequate to protect its interest. Buyer agrees to pay costs associated with collection of any overdue amount including reasonable attorney's fees. Buyer acknowledges and agrees that until final payment, the Seller shall have a lien as a result of services rendered on any and all reports or data generated and upon Buyer-supplied equipment in Seller's possession.
(d) The election of any option under this Paragraph shall not preclude the exercise of any and all rights and remedies available to Seller at law or in equity.
11. NOTICES: Notice shall be deemed effective when received or refused, if sent prepaid to the other party at the address provided on the face of Seller's Quotation.
12. ENTIRE AGREEMENT: These Terms and Conditions contain all the terms and conditions of the sale and purchase of the services or materials described in the Seller's Quotation, and supersedes any and all previous instruments or agreements which are hereby made null and void. No terms and conditions in any form of purchase order, order acknowledgment or other acceptance forms of Seller or Buyer issued with respect to this transaction shall alter the terms hereof and objection is hereby made to all such additional or different terms. Acceptance is expressly limited to the terms offered herein. No modification or waiver of these Terms and Conditions shall bind Seller or Buyer unless written, signed, and accepted by Authorized Representatives of both Seller and Buyer. These Terms and Conditions, the associated Quotation and any attachments, exhibits or addenda thereto are valid only if in writing and bilaterally executed by Authorized Representatives of Seller and Buyer. An Authorized Representative shall be any employee, consultant or representative of the party to this Agreement having the apparent authority to legally bind that party.
13. APPLICABLE LAW AND REGULATIONS: This Agreement created by Seller's Quotation, Buyer's Purchase Order, and Seller's Order Acknowledgement shall constitute the contract between Buyer and Seller and shall be governed under the laws of the State of California without regard to conflict of laws provisions. Where the Federal Acquisition Regulations (FAR) are referenced in this Agreement, the version in effect on the revision date shown above shall be used. In all FAR clauses listed herein, the terms "Government" and "Contractor" shall be revised to identify properly the contracting parties under this contract, generally by replacing "Government" with "Buyer" and "Contractor" with "Seller".
14. DISPUTES:
(a) Any dispute between the parties relating to these Terms and Conditions or the Seller's Quotation that cannot be resolved with reasonable promptness shall be referred to each party's senior manager in an effort to obtain prompt resolution. Neither party shall commence any action against the other until the expiration of fifteen (15) business days from the date of referral to such senior managers, provided, however, this shall not preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.
(b) Buyer acknowledges that it has read this Agreement, and has had the opportunity to clarify these Terms and Conditions with Seller, and is satisfied that it reflects the intent of the parties. Accordingly, the rule of contra preferendum shall not apply to this Agreement, and Buyer agrees and acknowledges that any ambiguity, inconsistency or conflict that remains in the Agreement after its execution by both parties shall not be construed for or against either party.
15. SEVERABILITY: If any provision of these Terms and Conditions are held invalid by any law and/or regulation, all other provisions hereof shall continue in full force and effect.
16. HEADINGS: The headings contained herein are for the convenience of the reader and they are not intended to be all inclusive nor shall they be considered for any other purpose in construing these Terms and Conditions.
17. ELECTRONIC SIGNATURE VALID: The parties agree that this Agreement may be executed (i) pursuant to the process set forth in the Electronic Signatures in Global and National Commerce Act (15 USC §7001 et. seq.), or (ii) in as many counterparts as may be required to reflect all Parties' assent; all counterparts shall collectively constitute a single agreement. A legible facsimile signature that can be authenticated will constitute an original and binding signature of a Party.