Terms and Conditions

GENERAL TERMS AND CONDITIONS Updated: November 12, 2024

Definitions. As used in these General Terms and Conditions:

  1. “Agreement” means the written agreement between Buyer and Seller for the purchase of Services, which shall consist of these General Terms and Conditions, the applicable Quote, and, subject to the restriction set forth in Section 2, the Buyer Purchase Order.
  2. “Buyer” means the person or entity that placed the order for Services or on whose behalf the order is placed.
  3. “Buyer Purchase Order” means an order placed by Buyer for Services provided by Seller.
  4. “Force Majeure” means any act, event, cause, or condition that is beyond a party’s reasonable control, including without limitation acts of God, accidents, acts of any government, widespread contagion, pandemic, or other public health emergency, strikes, lockouts, or other industrial disturbances, acts of public enemies, war, terrorist activity, insurrections, riots, earthquakes, fires, storms, floods, inability to obtain necessary materials, delay in transportation by common carrier, theft, power failure, and the like, and business interruption related to any of the foregoing.
    • “Purchase Price” means the price payable to Seller by Buyer for Services.
    • “Quote” means the quote issued by Seller for the Services requested by Buyer to which these General Terms and Conditions apply.
    • “Seller” means Westpak, Inc., including any division or subsidiary thereof.
    • “Services” means the services identified in the applicable Quote.
      1. Agreement; Inconsistent Terms. Seller and Buyer agree that all purchases for Services by Buyer from Seller will be governed by this Agreement. Buyer acknowledges and agrees that any order, upon acceptance by Seller, shall be subject to this Agreement. In the event of a conflict among these General Terms and Conditions, any Quote, and any Buyer Purchase Order, the terms of these General Terms and Conditions shall control unless otherwise expressly agreed to in writing by Seller’s Controller and Buyer. For the avoidance of doubt, no inconsistent or additional term or condition in any Buyer Purchase Order or any or other order confirmation, acceptance, or other instruments from Buyer shall be binding on Seller unless expressly agreed to by Seller’s Controller in writing. Accordingly, any preprinted terms contained in any Buyer Purchase Order or any or other order confirmation, acceptance, or other instruments from Buyer that are intended to modify, be incorporated into, be in addition to, or are inconsistent with any of the terms of these General Terms and Conditions shall be null and void and have no force or effect unless otherwise expressly agreed upon by Seller’s Controller in writing.
      2. Ordering Procedure. Each Buyer Purchase Order must be submitted to Seller in writing or electronically. The Buyer Purchase Order shall be in a form approved by Seller and shall specify (a) the description of Services being ordered, including any and all additional terms that may be specific to such Services, (b) the requested delivery date, and (c) other appropriate information as may be required by Seller to complete the order for Services. For testing at the San Jose Lab, please email PO’s to [email protected]. For testing at the San Diego Lab, please email PO’s to [email protected].
      3. Receipt and Acceptance of Buyer Purchase Order by Seller. If a Buyer Purchase Order is accepted, Seller shall confirm its acceptance thereof to Buyer in writing or electronically. No Buyer Purchase Order shall be deemed accepted by Seller until Seller has accepted such Buyer Purchase Order in writing or electronically.
      4. Cancellation of Orders; Cancellation Charges; Early termination of real-time aging projects, no refunds. Once accepted by Seller, a Buyer Purchase Order may be canceled, reduced, changed, or suspended by Buyer only by providing notice more than 24 hours prior to the scheduled start date of Services. Any Buyer Purchase Order that is cancelled, reduced, changed, or suspended with less than 24 hours’ notice prior to the scheduled start date of Services shall require Buyer’s payment of the amount equivalent to one-day testing at Seller’s standard hourly rates then in effect. Also, Westpak bills in advance of test end for real-time aging storage, and does not provide refunds for early termination of the scheduled tests.
      5. Service Terms.
        • a. Seller’s test services shall be provided on a fee-for-service basis. Seller makes no representation, guarantee or warranty, express or implied, regarding results generated by Seller’s performance of testing services.
        • b. If Buyer requires Seller to commence Services earlier than our lead time, expedited testing (if available) may be offered at an additional cost to Buyer.
        • c. Any lead times provided by Seller are merely an estimate and are not binding on Seller. A proposed lead time will commence once all required documentation and samples are delivered to Seller.
        • d. Unless notified in writing, Seller assumes that all samples are not overpacked at the time of delivery to Seller.
        • e. Test samples will be stored in an ambient laboratory environment following delivery to Seller, unless otherwise requested by Buyer and specifically described in the Buyer Purchase Order. Seller’s ambient laboratory environment does not meet tolerances of ASTM D4332 (+23°±2°C, 50% ±5% RH). Buyer must notify Seller in writing if Buyer’s project requires controlled and recorded temperature and humidity protocols prior to, during, or after Services are performed (including ISTA, ASTM).
        • f. Seller employs zero guard banding for all accredited calibration certificates. Customer agrees to simple acceptance as a decision rule. Unless otherwise agreed by the parties in writing, Buyer agrees that it accepts tester’s tolerances and one-year calibration intervals.
        • g. Seller will deliver reports in .pdf format to Buyer approximately 5 business days following the completion of Services.
        • h. Buyer acknowledges and agrees that Seller will perform Services pursuant to Buyer’s specific requirements. Accordingly, Seller will not be held responsible for any damage that may occur to Buyer’s samples as a result of Services being performed pursuant to such Buyer requirements.
        • i. If Services require support equipment (pressure >100psi, extraordinary electrical power or specific plugs and outlets, etc.), such requirement must be set forth in the applicable Quote.
        • j. Seller reserves the right to charge a maximum of 1-day’s equivalent of Service fees at Seller’s standard hourly rates for any cancellation of Services made less than 24 hours prior to the scheduled date and time of such Services.
        • k. Buyer acknowledges that power outages or other interruptions to Services outside Seller’s control of may occur. In the event of any such interruption to Services, Seller will resume Services after the interruption ends, and extend Services for the length of time equivalent to the interruption (ref. ASTM F1980, and subsequent like conforming revisions to F1980).
      6. Shipment; Title; Risk of Loss. Any products provided to Seller by Buyer will be returned to Buyer using the method and instructions specified by Buyer. Buyer is responsible for arranging and paying for pick-up or providing to Seller pre-paid return shipping instructions for test samples from Seller no later than seven (7) days after Seller concludes testing of such samples. All costs of shipping and storage will be borne by Buyer, including, without limitation, any charges for any special services or special shipping arrangements (such as cartage, air freight, express, parcel post and multiple deliveries on one order). Title to, ownership of, and risk of loss or damage to any products provided to Seller by Buyer shall at all times remain with Buyer, and Buyer shall be responsible for insurance of any such products.
      7. Payment Terms. Prior to purchasing Services, Buyer must establish a credit account with Seller by submitting a credit application to Seller’s representative who is preparing the Quote. Unless Buyer and Seller agree otherwise in writing, Buyer shall pay the Purchase Price for Services purchased under this Agreement within thirty (30) days of the date of the invoice issued by Seller to Buyer upon completion of Services. All payments due hereunder shall be made by Buyer by ACH or check issued to Seller. Interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is lower, will be charged on past due Buyer accounts commencing after the last day of the first calendar month following the date of such invoice. Seller may suspend, credit, or cancel any unfilled Buyer Purchase Orders without any liability to Buyer in the event that Seller believes Buyer’s credit is impaired. Seller may require full or partial payment or payment guarantee in advance of any Services whenever, in its opinion, the financial condition of Buyer so warrants. Payment by credit card will be subject to a 3.25% service charge.
      8. Taxes. Prices do not include taxes. Buyer shall pay Seller, in addition to the price of any Services purchased under this Agreement, any applicable excise, sales, use or other tax (however designated) imposed upon the sale, production, delivery or use of Services ordered to the extent required or not forbidden by law to be collected by Seller from Buyer, whether or not so collected at the time of the sale, unless valid exemption certificates acceptable to the taxing authorities are furnished to Seller before the date of invoice.
      9. Permits, Licenses, Protocols, and Procedures. Buyer shall obtain and maintain all registrations, licenses, permits and approvals required to operate any products provided to Seller by Buyer.
      10. Disclaimer of Warranty. ALL SERVICES ARE PROVIDED “AS-IS,” “WITH ALL FAULTS,” AND “AS-AVAILABLE” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY OF SERVICES RESTS WITH BUYER AND NOT SELLER. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED. SELLER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO SERVICES AND ANY RESULTS GENERATED BY PERFORMANCE OF THE SERVICES. FURTHER, SELLER DOES NOT WARRANT AND BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS RESPONSIBLE FOR ENSURING THAT (A) ANY SERVICES PURCHASED FROM SELLER COMPLY WITH APPLICABLE LOCAL, MUNICIPAL, STATE AND FEDERAL LAWS, ORDINANCES, REGULATIONS AND CODES, IF ANY, AND (B) SELLER IS NOT RESPONSIBLE FOR BUYER’S INTERPRETATION AND/OR USE OF ANY TEST RESULTS DELIVERED BY SELLER TO BUYER IN CONNECTION WITH SERVICES.
      11. Buyer’s Limited Remedy for Seller’s Breach. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR SELLER’S BREACH OF THIS AGREEMENT SHALL BE LIMITED TO CORRECTION OF ANY DEFECTS IN SERVICES PROVIDED BY SELLER AND REPORTED TO SELLER WITHIN 60 DAYS AFTER COMPLETION OF SUCH SERVICES. FURTHER, SELLER DOES NOT WARRANT AND BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS RESPONSIBLE FOR ENSURING THAT ANY SERVICES COMPLY WITH ANY APPLICABLE LOCAL, MUNICIPAL, STATE AND FEDERAL LAWS, ORDINANCES, REGULATIONS AND CODES, IF ANY.
      12. Buyer’s Indemnification Obligations. Buyer acknowledges that Buyer is solely responsible for use of Services, including, but not limited to, any test results and/or reports provided by Seller to Buyer in connection with Services (“Results”), and that no aspect of Buyer’s use of Services is at the direction of Seller. Buyer will indemnify, defend and hold Seller and its officers, agents, directors, and employees (each an “Indemnified Party”) harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including, without limitation, reasonable attorneys’ fees, that are awarded against any Indemnified Party, arising out of or related to any third-party claim made in connection with Buyer’s use of Services, including, but not limited to, Results.
      13. Limitation of Liability; Commencement of Actions. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THIS AGREEMENT, IN NO EVENT SHALL SELLER OR ITS SUBCONTRACTORS BE LIABLE FOR ANY LOSS, DAMAGE, COST OF REPAIRS, OR INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF FACILITIES AND EQUIPMENT OR LOSS OF PROFIT, FOR ANY REASON, WHETHER BASED UPON ANY WARRANTY, OR WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE ARISING IN CONNECTION WITH THE USE OF SERVICES PROVIDED HEREUNDER, NOR SHALL SELLER OR ITS SUBCONTRACTORS BE LIABLE TO INDEMNIFY BUYER AND/OR ITS SUBCONTRACTORS FOR ANY CLAIMS FOR ANY SUCH CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES. FURTHER, IN NO EVENT WILL SELLER’S LIABILITY TO BUYER EXCEED THE LESSER OF EITHER $10,000 OR THE PURCHASE PRICE FOR THE SPECIFIC SERVICES GIVING RISE TO BUYER’S ACTION. ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MUST BE COMMENCED BY BUYER WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED OR TWO (2) YEARS FROM THE DATE OF SHIPMENT OR COMPLETION OF SERVICES, WHICHEVER EXPIRES FIRST.