GENERAL TERMS AND CONDITIONS Updated: November 12, 2024
1. Definitions. As used in these General Terms and Conditions:
a. “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.
b. “Buyer” means the person or entity that placed the order for Services or on whose behalf the order is placed.
c. “Buyer Purchase Order” means an order placed by Buyer for Services provided by Seller.
d. “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.
e. “Purchase Price” means the price payable to Seller by Buyer for Services.
f. “Quote” means the quote issued by Seller for the Services requested by Buyer to which these General Terms and Conditions apply.
g. “Seller” means Westpak, Inc., including any division or subsidiary thereof.
h. “Services” means the services identified in the applicable Quote.
2. 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.
3. 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 purchasingSJ@westpak.com. For testing at the San Diego Lab, please email PO’s to purchasingSD@westpak.com.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. Term and Termination.
a. Unless otherwise agreed upon in writing by Seller’s Controller and Buyer, this Agreement shall commence upon Seller’s receipt of a valid buyer Purchase Order or advance payment and shall continue until such Services are completed and delivered to Buyer.
b. This Agreement may be earlier terminated by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party (10 days in the case on non-payment).
c. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. Upon expiration or termination of this Agreement, the following Sections shall survive: 1, 2, and 11-30.
16. Intellectual Property Rights; Confidentiality.
a. Subject to the rights and licenses expressly granted hereunder, Buyer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Buyer’s products provided to Seller in connection with Services and/or data generated by Seller’s performance of Services.
b. Subject to the rights and licenses expressly granted hereunder, Seller shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and all Seller processes, methods, tools, machinery, and equipment, and other proprietary or intellectual property rights therein. Additionally, all Buyer (a) suggestions for correction, change or modification to Services, (b) evaluations, and (c) other feedback, information and reports provided to Seller hereunder (collectively, “Feedback”) will be the property of Seller, and Buyer shall and hereby does assign any rights in such Feedback to Seller.
c. Each party agrees that the non-public business, technical, and financial information of either party, including without limitation Services, Results, and the terms and conditions of this Agreement (collectively “Confidential Information”) is and shall be treated as confidential information by the parties. Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party without use or reference to the Confidential Information of the other party.
17. General Terms.
a. Entire Agreement; Amendment. This Agreement embodies the entire agreement between the parties, and supersedes any other agreements and arrangements, whether written or oral, regarding the subject matter hereof. This Agreement may not be amended, extended or supplemented in any manner except by the express written agreement executed by both parties.
b. Force Majeure. In the event either party is prevented by Force Majeure from performing any of its obligations under this Agreement, other than its payment obligations hereunder, such party shall give notice in writing to the other party with full particulars of such Force Majeure as soon as practicable after the occurrence thereof. Upon delivery of such notice, the obligations of the notifying party shall be suspended during the period of such Force Majeure and shall be remedied as soon as practicable by the notifying party. Seller shall not be responsible for any loss, delay or damage caused by a Force Majeure event.
c. Notices. Any notice, agreement, or other communication required to be given under this Agreement shall be in writing and either personally delivered, delivered by certified U.S. mail (return receipt requested), postage prepaid, or delivered by overnight delivery by a nationally recognized courier, addressed to the parties at their addresses noted on page one of this Agreement, the applicable Quote or Buyer Purchase Order, or to such other addresses as maybe furnished in writing by either party to the other. Each notice or communication shall be deemed to have been received 3 business days after the same was deposited in certified mail, or, if delivered in person via an internationally recognized overnight delivery carrier, as of the date so delivered. Orders and other ordinary course of business communications may be sent by email or mail to the address identified by the parties from time to time, or by first class mail, postage prepaid.
d. Severability. In the event that one or more of the provisions of this Agreement is declared or held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision(s) shall be interpreted as modified so as to be enforceable to the maximum extent permitted by law, and all other provisions hereof shall be given effect separately therefrom and shall not be affected thereby.
e. Waiver. No waiver by either party of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
f. Authority. Each party represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the state of its organization and has full power and authority to enter into and perform its obligations under this Agreement, (b) it agrees to be bound by this Agreement, and (c) the person executing this Agreement on behalf of such party has been properly authorized and empowered to enter into this Agreement.
g. Headings. The headings used in this Agreement are for reference purposes only and shall not be deemed part of this Agreement.
h. Assignment. Neither Seller nor Buyer may assign or transfer any right or obligation under this Agreement without the consent of the other. Notwithstanding, Buyer hereby consents to Seller’s assignment of its rights and obligations under this Agreement in connection with an acquisition, reorganization, sale or similar transfer of assets.
i. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
j. Attorney Consultation. Each party represents that it has had an opportunity to consult with independent legal counsel prior to signing this Agreement.
k. No Partnership. Seller is an independent contractor to Buyer. This Agreement does not create a partnership, joint venture, or any form of association, for employment, tax purposes or otherwise.
l. Choice of Law; Arbitration. This Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. Buyer agrees that all disputes and/or causes of action under this Agreement shall be resolved by binding arbitration by a single arbitrator from the San Jose, California office of the American Arbitration Association (“AAA”) in accordance with the AAA’s rules of Arbitration.
m. U.N. Convention. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods (the “UN Convention”), the parties agree that the UN Convention shall not apply to this Agreement.