Terms and Conditions for Services

These Terms and Conditions for Services (hereinafter the “Terms”) constitute a binding agreement with all customers of Smith Environmental Laboratory LLC.  Please read carefully before proceeding to request our Services or submitting a Sample to us.

  1. Definitions.
  2. “Company” means Smith Environmental Laboratory LLC.
  3. “Customer” means a person who requests that Company perform Services and/or who submits Samples to Company for the performance of Services, as well as any entity (regardless of its form of organization) on whose behalf Services are requested or performed;
  4. “On-Premise Services” means any Services performed by Company on Customer’s premises or property, for example, testing of well waters, soils or materials of any type. See Section 7 below, “Special Provisions for On-Premises Services.”
  5. “Result(s)” means: (i) a description of the outcome of the Services in Company’s standard form report (or in such other form as Company agrees to in writing), whether in printed or electronic form; and/or (ii) a data submission or other report to regulators.
  6. “Services” means collecting, testing, analyzing, examining, studying, auditing, inspecting or investigating any Sample, and includes On-Premise Services;
  7. “Sample” means any specimen, substance, material, ingredient, constituent, element or other physical matter.
  8. “Sampling Appointment” means the day and expected window of time specified by Company for pickup of a Sample or performance of any On-Premise Services.
  9. Binding Agreement.
  10. By requesting that Company provide Services and/or by submitting Specimen(s) to Company for Services, Customer agrees to be bound in all respects by these Terms and Conditions.
  11. In no event shall any term or condition included by Customer on a purchase order, work order or other request for Services have the effect of amending or modifying any provision contained in this Agreement (a “Modifying Term”) unless Company has expressly confirmed its acceptance of such Modifying Term in a separate document. Accordingly, Company’s approval and confirmation of Customer’s purchase order, work order or other request for Services shall not be deemed approval or acceptance of any Modifying Term.
  12. Company’s Responsibilities and Rights.
  13. Company shall perform the Services in a professional manner and using a degree of care and skill consistent with applicable standards in the laboratory testing industry.
  14. Company shall provide Customer with the Result(s) based solely upon the information and Sample(s) that Customer supplies to Company, or the facilities or operations that Customer makes available to Company.
  15. Company is not responsible for interpreting Results or providing advice regarding environmental regulations. The interpretation of Results is at Customer’s sole risk and is Customer’s sole responsibility. Company assumes no responsibility whatsoever for the outcome or consequences of any Result. Without limiting the generality of the foregoing, Customer hereby waives any and all causes of action, whether at law or in equity, and any and all claims, demands, liabilities, costs and expenses, arising out of or related to any interpretation, use, outcome or consequence of any Result, including but not limited to the loss of goods and materials, lost profits, personal injury and death.
  16. If Company is obligated by applicable law or regulation to notify or provide any Sample, Result, or other information to any state, federal or local government authority, Company shall have the right to comply with such obligations without notice to Customer and without Customer’s prior consent. Public water system reporting to any third party as per regulations are the responsibility of the purveyor.
  17. Customer’s Responsibilities.
  18. Customer hereby represents and warrants that it has the full right and authority to enter into these Terms and to be bound hereby.
  19. Company may require Customer to designate in writing a person or entity to act as Customer’s authorized contact person with respect to the Services. Such Contact Person shall have complete authority to transmit instructions, receive information and data, and order, at Customer’s expense, additional services from Company. Any additional services ordered by Customer and/or its Contact Person shall be deemed “Services” under these Terms.
  20. Customer may designate in writing any third party who is authorized to receive a copy of the Results, and Company is entitled to assume that it is so authorized to transmit a copy thereof until Company is notified otherwise by Customer.
  21. If required by the nature of the Services, Customer shall permit Company’s employees, agents and representatives reasonable access to Customer’s facilities and/or residence. In such event, Customer shall be responsible for providing a safe work environment and working conditions for Company’s employees, agents and representatives. Without limiting the generality of the foregoing, any hazardous or toxic material at Customer’s facilities shall be properly stored and labeled by Customer in accordance with applicable laws and regulations.
  22. Customer understands, acknowledges and agrees that
  23. Company has not in any way advised Customer as to what Services may be required or recommended under any international, federal, state and/or local law or regulation related to Customer’s products and business (hereinafter “Laws”). Customer represents and warrants that it has all necessary and sufficient commercial knowledge and experience with respect to all Laws, and that Customer is in material compliance with same;
  24. Customer assumes all responsibility for the compliance of its products and business with and pursuant to all Laws. Customer shall independently confirm its compliance with all Laws and shall not rely solely upon Results or furnished by Company to confirm such compliance; and

iii.    Implementing destruction, withdrawal or recall of any product based on, including an interim or preliminary Result, is at Customer’s sole risk and Customer’s sole responsibility.

  1. Control of Materials.
  2. Due to the nature of the Services, and except as provided in Section 5.B below, Samples will not be returned to Customer unless Company, in its sole discretion, expressly agrees to such return. Accordingly, all ownership rights to Samples will transfer to Company upon Company’s physical receipt thereof.
  3. Notwithstanding anything contained in Section 5.A above, any Sample that Company determines is hazardous (i) will be deemed to be the property of Customer, who shall be solely responsible for disposal thereof; (ii) may be returned to Customer at any time; and/or (iii) may be refused for analysis.
  4. Company shall retain all Results in electronic format, for at least fourteen (14) days from the date the Services are performed, or as otherwise required by law or regulation. Company shall not, however, be under any obligation to retain for any length of time such portions of any Sample on which Service have been performed, it being understood by Customer that Company shall have the right to dispose of same at its sole discretion and in accordance with applicable laws and regulations.
  5. Payment for Services.
  6. Timing and Method of Payment. Unless Company has expressly agreed to other payment arrangements with you, payment for all Services is required upon (or before) pickup of a Sample or commencement of any On-Premises Services. Customers must provide valid credit card information (name, credit card number, security code on the back) at the time of requesting any Services, and this Agreement shall constitute authorization for Company to charge Customer’s credit card if no payment is made at the pickup time or upon commencement of Services. For Customers without a valid credit card (or who decline to furnish Company with the requisite information and authorization), Company reserves the right to require payment at the time an order is placed.
  7. “No Show” Fees for Residential and Commercial Customers. If Customer desires or needs to cancel a Sampling Appointment (provided one is scheduled), Customer shall do so by sending Company a written notice of cancellation (“Cancellation Notice”), which Cancellation Notice must be received by Company no less than twenty-four (24) hours prior to the Sampling Appointment. If Company does not receive the Cancellation Notice at least twenty-four (24) hours prior to the Sampling Appointment, then Customer will be charged a “no-show” fee of Fifty Dollars ($50.00). Cancellation Notices may be sent by overnight delivery via any carrier requiring a signature upon delivery, or by email to info@smithlaboratory.com
  8. Failure of Payment. If, for any reason, Customer fails to pay Company in full at the time payment is due, Company shall have the right to charge Customer a delinquency fee on the amount due equal to the lesser of 1.5% per month or the highest rate permitted by applicable law ( “Delinquency Fee”). In addition, Customer shall pay all of Company’s legal fees and expenses, court costs, collection fees, and other out of pocket expenses related to the collection of all outstanding amounts due, including but not limited to any Delinquency Fee.
  9. Consequences Related to Failure of Payment. Unless Customer’s account is fully paid up or unless Company agrees otherwise in writing, Company will not submit results to regulators. Any fines that Customer may receive as a result are solely the responsibility of Customer.
  10. Special Conditions for On-Premises Services.
  11. Private well testing is performed on “pre-treated” or “raw” water. If Company collects a Sample and determines, in its sole discretion, that any condition of Sample makes it untestable by regulation, Customer will be charged a fee of Sixty-Five ($65.00) Dollars. It shall be Customer’s sole responsibility to consult and comply with applicable regulations.
  12. Company will not test treated water unless Customer specifically requests (and pays for) that Service.
  13. Standard turn-around time for delivery of Results for statutory Private Well Testing and other common water tests is generally seven (7) business days (i.e., excluding recognized holidays and weekends) following the Sampling Appointment. However, delays may occur due to work load of Company or its subcontractors, breakage or failure of equipment or apparatus, repair cycles, compliance with governmental requests, or events that are unforeseen or beyond Company’s control, including but not limited to power outages, acts of terrorism or inclement weather and other acts of nature. In no event shall Company be liable for any losses, liabilities, damages, costs and expenses incurred by Customer or any third party arising out of or related to such delays. Without limiting the generality of the foregoing, Company will not be responsible for any consequences related to any failure to meet Customer deadlines or other time urgency, whether or not Customer advises Company of same.
  14. In order to perform On-Premises Services, Company may be required by applicable guidelines to remove faucet filters, loosen water valves, place water softeners in well “by-pass” mode, allow water to freely flow through the pipes and fixtures on Customer’s property or premises (including inside Customer’s home), and or make other modifications or adjustments to or on Customer’s property. Customer hereby assumes full risk of harm and sole responsibility for any and all losses, liabilities, damages, costs or expenses incurred by Customer or any third party arising out of or related to any On-Premises Services, excepting those that are a direct result of Company’s gross negligence (but not simple negligence) or willful misconduct.
  15. Publicity. Customer shall not use Company’s name, trademark, logo or Results: A. in connection with any marketing or advertising, or B. in any manner which may cause harm to Company’s reputation and/or its business. Customer agrees that any breach or threatened breach by Customer of this Section 8 may result in harm to Company for which monetary damages may not be an adequate remedy. Therefore, in addition to any other right or remedy it may have at law or in equity, Company shall be entitled to injunctive relief to prevent any breach of this Section 8 and Customer hereby waives any requirement for Company to post a bond or other surety in order to obtain such relief.
  16. Limitation of Liability.
  17. As used in this Section 9,
  18. “Warranties” means all warranties of merchantability or quality, fitness for a particular purpose, condition of satisfactory quality, non-interference, accuracy of Results, or warranties arising from a course of dealing, usage or trade practice, whether any of the foregoing are express or implied, as to the manner, quality or timing of the Services and/or as to the Results or other outcome of the Services; and
  19. “Related Persons” shall mean either Customer’s or Company’s principals, members, shareholders, directors, officers, employees, independent contractors, representatives and Customer’s or Company’s parent and affiliated companies and their respective principals, members, shareholders, directors, officers, employees, independent contractors, representatives.
  20. All terms, conditions and Warranties are excluded unless the exclusion of any such warranty would contravene applicable law or cause any part of these Terms to be void.
  21. Company’s entire liability to Customer for any breach of these Terms, any Warranty, or any negligence, gross negligence, or any failure, delay or wrongdoing in the performance of Services, shall be limited to a refund of the fee paid by Customer in respect of the applicable Services or, at Customer’s option and if possible, re-performance by Company of the Services.
  22. Company shall under no circumstances be liable to Customer for any direct, indirect, or consequential damage, including but not limited to the cost of goods and materials, and lost profits, suffered by Customer or any third party in any way arising from the Services or the Results even if Company has been previously advised of the possibility of such damage.
  23. The Result(s) of the Services are not pre-determined or certain, and may rely on certain experiments or procedures, each with an unknown outcome. Without limiting the generality o any other provision of this Section 9, Company does not guarantee that the Results will meet Customer’s approval and Company does not accept responsibility for any such failure or any consequences thereof.
  24. Indemnification.
  25. Company shall defend, indemnify and hold harmless Customer and its Related Persons from and against any and all claims, demands, liabilities, costs and expenses which are the proven, direct result of Company’s willful misconduct or fraud and which constitute a breach of any of Company’s obligations contained in these Terms.
  26. Customer agrees to defend, indemnify and hold harmless Company and its Related Persons from and against any and all claims, demands, liabilities, costs and expenses arising out of or related to: i. any use of by Customer or any third party of Results, and any consequences thereof; or ii. Company’s performance of the Services in a manner consistent with these Terms.
  27. Miscellaneous Provisions.
  28. Termination of Services. In the event Customer terminates the Services for any reason, Customer shall nevertheless pay Company in full for all Services performed through the termination date. In the event that Company terminates the Services for any reason not caused in whole or in part by Customer, Customer shall not be responsible for payment of any Services performed through the termination date, and Customer shall be entitled to a refund of for any Services for which it pre-paid.
  29. Subcontractors. Company may, in its sole discretion, subcontract to other qualified laboratories certain Services. In such event, all services performed by, and results obtained from, any subcontractor shall be deemed Services and Results under these Terms.
  30. Construction.
  31. Amendments. No amendment to or modification of these Terms or any provision hereof shall be valid or binding on the Parties unless made in writing and signed by a duly authorized representative of Company. Under no circumstances shall any term or condition contained in any request for Services or purchase order submitted by Customer be held to modify these Terms unless Company and Customer enter into a separate written contract embodying such terms.
  32. Assignment or Transfer. Customer may not transfer or assign these Terms or any of its rights hereunder, or delegate any of its obligations hereunder, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger (where the transferring or assigning Party is the disappearing corporation or entity), consolidation, dissolution, operation of law or any other manner. Any such attempt to transfer or assign as aforesaid shall be deemed a termination of Services by Customer.
  33. Binding Effect. The rights and benefits of these Terms shall be binding upon and inure to the benefit of, and be enforceable by the Parties’ respective successors and permitted assigns.
  34. Entire Agreement. These Terms constitute the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to said subject matter.
  35. Headings. The paragraph headings in these Terms are solely for the convenience of the Parties and have no legal or contractual significance.
  36. Survival. All provisions of these Terms that, by their nature, contemplate the performance of any obligation or exercise of any right following termination of Services, together with all provisions that relate to the enforcement of the Parties’ rights, the resolution of any Claims, and the interpretation of this Agreement, including but not limited to Sections 3C, 3D, 4E, and Sections 5 through 15, shall survive such termination.
  37. Waiver. No waiver shall be effective against Company unless in writing and signed by an authorized representative of Company. No failure by Company to exercise any right and no waiver by Company of any default or breach by Customer shall constitute a waiver by Company with respect to any subsequent exercise, default or breach.
  38. Governing Law, Jurisdiction and Venue. These Terms and any dispute or controversy arising out of or related to these Terms and/or the relationship between the Parties established herein (“Claims”) shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of New York without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in New York and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
  39. Waiver of Jury Trial. Both Customer and Company hereby each waive all rights to request a trial by jury with respect to any and all Claims, regardless of the basis therefor.
  40. Award to Prevailing Party in the event of any litigation between the Parties, the Prevailing Party shall be awarded its reasonable attorneys’ fees, cost and expenses (including but not limited to litigation expenses) incurred in connection with such litigation. As used herein, “Prevailing Party” means the net winner of the litigation as determined by the court, taking into account the Claims pursued, the claims on which the pursuing Party was successful, the amount of money sought, the amount of money awarded, and any offsets or counterclaims pursued by the other Party, whether or not successful. However, If a written settlement offer (“Settlement Offer”) is rejected and the judgment or award finally obtained is equal to or more favorable to the offeror than the Settlement Offer, the offeror shall automatically be deemed to be the Prevailing Party from the date of the Settlement Offer forward.

 

END OF TERMS AND CONDITIONS OF SERVICES