The services set forth in the attached Registration Form and Agreement (along with any attached schedules are hereinafter referred to as the “Registration”) are subject to the following Terms and Conditions:
- Acceptance. All clinical drug and alcohol screening and testing services (and related services, products and activities) performed by DISA- Formerly Occupational Drug Testing (the “Company”) whether pursuant to the Registration or if otherwise performed by the Company, shall be subject to the terms and conditions herein set forth. Unless otherwise expressly agreed to in writing, these terms and conditions shall override any terms or conditions stipulated, incorporated or referred to by the customer named on the first page of the Registration (the “Customer”) in the Customer’s order or in any negotiations. These conditions, along with the Registration and any attached schedules, embody the entire agreement between the Company and the Customer (the “Agreement”). Accordingly, any promises, representations or understandings not expressed herein shall be of no force or effect. No variation of, or addition to, these conditions shall be effective against the Company unless expressly accepted or confirmed in writing of subsequent date hereto and signed by the Company’s duly authorized employee on the Company’s behalf.
- Fees. All fees and costs for the services shall be set forth in the Registration. All other prices quoted by the Company shall be subject to change without notice.
Payment. Payment shall be made to the Company within thirty (30) days of invoice and in accordance with any terms specified by the Company. If any invoice amount shall remain outstanding for a period longer than thirty (30) days, then the Customer shall pay interest on daily basis on the outstanding amount at the rate of 1.5% interest per day until receipt of the payment up to maximum of 15% per annum of the outstanding amount, taking into consideration a year consisting of three hundred sixty (360) days.
In the event that the Customer shall fail to pay any undisputed portion of an invoice for a period in excess of sixty (60) days, then, in addition to any and all other remedies at law and at equity, the Company may immediately terminate the services without further notice or demand. In the event that the Company sends the account for collection and/or initiates litigation in order to collect overdue amounts, the Customer shall be liable for all costs and expenses of such collection efforts and/or litigation, including reasonable attorney’s fees, court costs and expenses. By accepting the services, the Customer acknowledges that the Company’s performance has fully satisfied all terms, conditions, and specifications. The Company’s liability will be limited to the quoted fees of the services and any products, without additional liability for special or consequential damages.
- Confidentiality. The Registration, any proposals, visuals, quotes, methods and reports which have been produced or created by the Company are to be treated confidentially and must not be disclosed to any third party.
- Exclusivity & Non-Solicitation. During the Term (hereinafter defined), the Customer shall not retain or contract with any other third-party to provide clinical drug and alcohol screening and testing services including, but not limited to, any services similar to or identical with the services rendered pursuant to the Registration. The Company and the Customer hereby agree that, during the Term and for a period of one (1) year following the termination or expiration of the Registration, neither party will, without the prior written consent of the other party, directly or indirectly, solicit for employment or hire any employee of the other party.
- Compliance with the Laws. Each party shall comply with all applicable laws, regulations, court decisions or administrative rulings regarding the provision or use of the services. Failure to do so shall constitute a material breach of the Agreement.
- Maintenance. It is the Customer’s responsibility to maintain a copy of the original files created by the Company and provided to the Customer and to maintain its own records and back-up files regarding its employees and any applicable testing or screening, unless otherwise agreed to by the parties.
- Term and Termination. The Customer may terminate this Agreement upon the expiration of the term set forth in the Registration or, in the absence of such agreement, the initial term of this Agreement shall commence on the date provided in the Registration and shall continue for a period of one (1) year (the “Initial Term”). Upon completion of the Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms (the Initial Term and any renewal term being referred to herein collectively as the “Term”) unless either party hereto delivers written notice to the other party hereto of its intent not to renew this Agreement. Such notice must be delivered no later than thirty (30) days prior to the conclusion of the then existing Term. In the event the Customer seeks to terminate the Agreement prior to the end of Term, then the Customer shall deliver written notice to the Company and along with payment to the Company of reasonable and proper termination and cancellation charges including, but not limited to: (a) all costs theretofore incurred by the Company in connection with services rendered at the time of the Company’s receipt of such written notice of termination or cancellation; (b) an amount equal to the Company’s expected profits on all such cancellations; and (c) the expenses incurred by the Company by reason of such termination or cancellation, including reimbursement for any charges arising from termination of subcontract claims. All rights and remedies of the Company hereunder are cumulative and not alternative.
- WARRANTY. THE COMPANY WARRANTS THAT THE QUALITY OF SERVICES PROVIDED PURSUANT TO A REGISTRATION / PURCHASE ORDER SHALL BE CONSISTENT WITH COMMON DRUG TESTING AND SCREENING STANDARDS AND SOUND BUSINESS PRACTICES. THE COMPANY MAKES NO OTHER WARRANTIES ABOUT THE SERVICES TO BE PROVIDED HEREUNDER, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON THE COMPANY’S BEHALF AND THE CUSTOMER MY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF THE COMPANY. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.
- LIMITATION ON LIABILITY. THE COMPANY’S ENTIRE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICES PROVIDED TO THE CUSTOMER OR BREACH OF THE AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE AS FOLLOWS: (I) FOR TANGIBLE PROPERTY DAMAGE OR PERSONAL INJURY CAUSED BY THE COMPANY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS, OR FOR ANY DAMAGES ARISING FROM THE WILLFUL AND INTENTIONAL MISCONDUCT OF THE COMPANY, THE AMOUNT OF PROVEN DIRECT DAMAGES; AND (II) FOR ALL OTHER CLAIMS NOT COVERED BY THE FOREGOING SUBSECTION, THE AMOUNT OF PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THE AGREEMENT FOR THE PERIOD DURING WHICH SERVICES WERE PROVIDED. IN NO EVENT SHALL THE COMPANY’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY THE CUSTOMER TO THE COMPANY HEREUNDER. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.
- Indemnification and Defense. The Customer agrees to indemnify, defend and hold the Company, its affiliates and their respective employees, officers and directors harmless from and against any and all claims, damages, costs, expenses and other liabilities (including attorney’s fees and other costs of investigation and defense) caused by or arising out of the Customer’s acts or omissions related to the performance of its obligations under this Agreement or its use of the services described in the Registration.
- Regulatory Change. The Company may amend any contract term or pricing in response to a regulatory change that materially changes the technical feasibility or economics of providing servic The Company will notify the Customer in writing when exercising this right, after which the Customer will have thirty (30) days from the date of the notice to terminate the adversely affected services for cause by notifying the Company in writing. If the Customer does not respond in writing to the Company within thirty (30) days, the Customer waives its right to terminate. For avoidance of doubt, the Customer’s remedy pursuant to this section shall not apply for rates otherwise subject to change as designated on Customer’s Registration or attached fee schedule(s).
- Relationship of Parties. Neither the Agreement nor the provision of service hereunder shall be deemed to create any joint venture, partnership or agency between the Company and the Custo The parties are independent contractors and shall not be deemed to have any other relationship. Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act. EACH PARTY IS AND SHALL BE SOLELY LIABLE FOR ANY FEDERAL, STATE OR LOCAL INCOME AND WITHHOLDING TAXES, UNEMPLOYMENT TAXES, FICA TAXES, AND WORKERS’ COMPENSATION PAYMENTS AND PREMIUMS APPLICABLE TO THE SERVICES PROVIDED BY SUCH PARTY’S PERSONNEL PURSUANT TO THIS AGREEMENT.
- Further Assurances. At any time or from time to time after the date hereof, the Customer shall cooperate in good faith with the Company and, at the request of the Company, shall execute and deliver any further instruments or documents and take all such further action as the Company may deem necessary or advisable to evidence or effectuate the consummation of the transactions contemplated hereby, assist and facilitate the provision of the services, and otherwise to carry out the intent of the parties hereunder.
- Force Majeure. The Company shall not be liable for any loss or damage caused by non-performance or delay in performance of any of its obligations under the Agreement where the delay or nonperformance is due to any cause beyond the Company’s control, including (without limiting the foregoing): Acts of God, legislation, war, terrorism, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees or others in contemplation or furtherance of a dispute or owing to any inability to procure materials or services required for the performance of the Agreement. In such event the Company may terminate or suspend the Agreement with no liability for loss or damage thereby occasioned.
- No Assignment. The Customer may not assign or transfer the Agreement or any of the Customer’s rights or obligations hereunder without the prior written consent of the Company.
- Interpretation. This Agreement constitutes the sole and entire agreement between the Customer and the Company with regard to the subject matter hereof. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this Agreement or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or have been relied upon in the making of this Agreement other than those specifically set forth herein.
- Waiver. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing, of subsequent date hereto, and signed by the party to which it is attributed. No consent by a party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.
- Partial Invalidity. If any provision of the Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction and venue, then such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable, but rather the Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, then the parties shall promptly attempt to negotiate a substitute therefor.
- Governing Law. This Agreement and any services and contracts performed hereunder shall be governed by the laws of the State of New Hampshire, without regard to conflicts of laws rules or rulings and regardless of location of Customer. Any and all disputes, actions or litigation must be brought exclusively in New Hampshire federal or state courts and the Customer consents to the exclusive jurisdiction of the federal and state courts located in New Hampshire, submits to jurisdiction there, and waives the right to request a change of venue. Notwithstanding the foregoing, the Company may seek equitable relief or legal damages in any jurisdiction and venue of its choice.