Conditions of Use

Services & Products Terms & Conditions

ALL TRANSACTIONS relating to purchasing products or services from ENVIROBIOMICS, INC., a Texas limited liability company (“COMPANY”), ARE GOVERNED by these Services & products terms and conditions (these “Terms”). ANY PROPOSAL from a purchaser of Company’s products or services (each, a “Recipient”) THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM these Terms ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY CLIENT SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERMS.

General Terms Related to Company’s Services:

  1. Services. Company will perform those certain environmental testing services and create and provide certain deliverables, as more particularly described in the statement of work (each an “Order” and collectively “Orders”) which may be entered into from time to time by the parties by submitting a written purchase order or by placing a telephone order and, upon acceptance of such Order, will be incorporated and made part of these Terms (the “Services”). All telephone orders must be subsequently confirmed in writing by the Recipient. Company shall provide the Recipient with information concerning the progress of the Services from time to time, and will notify the Recipient of any changes, concerns, problems or delays materially affecting performance of the Services. These Services are intended to be provided to parties located worldwide who are at least the age of eighteen (18) years or older. Company reserves the right to refuse Services to anyone, unless otherwise prohibited by law. The Orders, together with these terms, shall collectively be referred to herein as the (“Agreement”). In the event of a conflict between the terms of an Order and the terms of these Terms, the terms of these Terms shall supersede and control. No obligation to provide any Services shall be incurred by Company until such time that an Order has been agreed in writing by authorized representatives of both parties. The existence of these Terms shall not be construed as imposing any obligation upon Company to agree to an Order or to otherwise perform any Services for Recipient. Recipient acknowledges and agrees that Company may use subcontractors and consultants to perform the Services to be provided under the Agreement. Company may represent, perform services for, and contract with other additional clients, persons, or companies as Company, in its discretion, deems fit.

 

  1. Fees and Expenses for Services. As consideration for the rendering of Services, Recipient agrees to pay Company the fees set forth in the respective Order (the “Fees”). In addition to the Fees, Recipient agrees to reimburse Company upon written request for all of Company’s travel and other expenses reasonably incurred by Company in connection with its performance of the Services.

 

  1. Billing and Payment. All undisputed amounts are due and payable upon Recipient’s receipt of invoice. Prices, fees and other charges are set forth herein and are exclusive of taxes. All references to prices, charges, fees or other amounts are in U.S. dollars. Recipient shall notify Company in writing of any dispute regarding an invoice, including reasonable detail describing the inaccuracy, within five (5) days of its receipt. If recipient fails to timely provide notice of an invoice dispute, then such invoice shall be considered undisputable by the parties. Payments may be made by wire transfer, certified check, bank check or such other method as may be agreed upon by Company, and are nonrefundable, unless otherwise provided herein. Recipient shall have no right of offset or withholding under the Agreement. Any amounts not paid by Recipient when due shall be subject to interest charges, from the date due until paid, at the rate of one and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Company from Recipient becomes past due for any reason, Company may at its option and without further notice withhold further Services until all outstanding Fees have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Company’s obligations hereunder or under any Order.

 

  1. Cooperation of Recipient. Recipient shall comply with all reasonable requests of Company and shall provide Company’s personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services. Recipient agrees to furnish without charge adequate space at Recipient’s premises for use by Company’s personnel while performing the Services.

 

  1. Warranty. The Services to be performed hereunder are in the nature of professional services and advice. Company does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Company warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Company shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder. Where Services to be provided by Company require the use of analytical methodologies, Company will use those analytical methodologies which conform with methodologies set by the U.S. Environmental Protection Agency (EPA), America Industrial Hygiene Association (AIHA-LAP LLC), American Society for Testing and Materials (ASTM), or Association of Official Analytical Chemists (AOAC). The nature or compositions of a sample are examples of factors that may require Company to deviate from these methodologies. Any deviations from the analytical methodologies set forth above will be made in accordance with recognized industry standards.

 

  1. Limitation of Warranty. THE WARRANTY SET FORTH IN THIS SECTION 6 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. Company DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. RECIPIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES PERFORMED, CONTINGENT ON THE RECIPIENT PROVIDING, AT THE REQUEST OF COMPANY AND AT THE RECIPIENT’S SOLE EXPENSE, ADDITIONAL SAMPLE(S) IF NECESSARY, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF ANY AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES. ANY REANALYSIS REQUESTED BY THE RECIPIENT YIELDING RESULTS CONSISTENT WITH THE ORIGINAL RESULTS WILL BE AT THE RECIPIENT’S SOLE EXPENSE.

 

  1. Ownership of Work Product. All information provided to Company by the Recipient (“Recipient’s Data”) shall remain in the Company’s possession until all Fees have been paid for respective Services. Upon full payment of Fees to Company, Recipient’s Data held and generated by Company for the Recipient shall be returned and become the property of the Recipient.

 

  1. Reports of Results. Company offers the Recipient a single standard reporting form, as determined by the Company. By written request, the Recipient may decide to receive results with or without Company’s cover page. Opting out of receiving the cover page will result in the Recipient not receiving a complete report. Company recommends that Recipient use the default setting and accept the cover page.

 

  1. Samples. Recipient must provide, together with the submission of their samples, a completed and signed chain of custody form with adequate instructions describing the type of analysis requested and a complete and thorough written disclosure of the known or suspected presence of any hazardous substances. Hazardous substances are those defined as such by local, state and federal law. Recipient shall be liable and shall pay all costs and damages resulting from i) a Recipient’s failure to disclose to Company that a sample contained or was suspected to contain a hazardous substance; or ii) a Recipient’s failure to comply with any local, state or federal law regarding the sample; or iii) any action on the part of the Recipient which interrupts Company’s ability to process work, contaminates Company’s instruments or work areas or necessitates any clean-up or recovery on the part of Company.

 

  1. Sample Delivery Acceptance. “Sample Delivery Acceptance” is defined as the point in time after which Company received and inspected the samples and received project guidance regarding the Services to be done and resolved any discrepancies in the chain of custody forms and made a determination that it can proceed with the defined work. Company reserves the right to refuse or reject Sample Delivery Acceptance for any sample that it deems to be: (i) of unsuitable volume; (ii) a health, safety, environmental or other risk; (iii) a sample that will fail to meet holding times either due to the passage of more than forty-eight (48) hours from the time of sampling or the passage of half the holding time for the requested test, whichever is less; or (iv) the passage of time prior to delivery, such that sample viability is not maintained.

 

  1. Holding Times. Company will initiate preparation and/or analysis within holding times, provided Sample Delivery Acceptance occurs within forty-eight (48) hours of sampling or one-half (1/2) of the holding time for the test, whichever is less. For analyses which do not have holding time requirements, Company shall use its best efforts to process samples as soon as practicable, while the sample is viable. In cases where Sample Delivery Acceptance is not made within these time periods, Company will use commercially reasonable efforts to meet the holding times. The holding time commitment shall be satisfied if an initial analysis is performed within the holding time and reanalysis, to comply with quality assurance requirements, is performed outside the holding time. Company will remedy any failure to meet a holding time commitment where such failure is due to Company’s negligence. Company shall not be responsible where sample viability is reduced due to shipping time or conditions in transit.

 

  1. Licenses and Certifications. The Recipient shall provide Company with notice in writing, prior to Sample Delivery Acceptance, of all licenses and certifications that it will require Company to hold during performance of Services by Company for the Recipient. Company will notify the Recipient of any revocation of a required license or certification.

 

  1. Change Orders. Changes to the Order, including but not limited to increasing or decreasing the work, changing test and analysis specification, or acceleration in the performance of the work may be initiated by the Recipient after Sample Delivery Acceptance. Such a change will be documented in writing and may result in a change in cost and turnaround time commitment, which equitable adjustment will be made upon agreement by Recipient. Company’s acceptance of such changes is contingent upon technical feasibility and operational capacity. Changes to the Order, price, or result delivery date may be initiated by Company after Sample Delivery Acceptance due to any condition which conflicts with analytical, quality assurance, or other protocols warranted in this Agreement. Company will not proceed with such changes until an agreement with the Recipient is reached on the amount of any cost, schedule change or technical change to the Order, and such agreement is documented in writing.

The Recipient may direct Company to suspend a portion or all of the Services to be performed. In such case, the Recipient will remain responsible for all work performed up until the time Company became aware of Recipient’s desire to discontinue the Services. Any uncompleted analysis will be billed on a prorated basis, as determined by Company. All directions by Recipient to suspend work must be issued to Company in writing.

  1. Risk of Loss. Prior to Sample Delivery Acceptance, the entire risk of loss or damage to samples remains with the Recipient, except where Company provides courier services. In no event will Company have any responsibility or liability for the action or inaction of any carrier shipping or delivering any sample to or from Company’s premises. Recipient is responsible for determining whether or not the sample it is shipping contains a hazardous substance as defined by law, and for taking all actions necessary to ensure the sample it ships is packaged, labeled, transported and delivered properly and in accordance with all local, state and federal laws.

 

  1. Sample Disposal. Where samples are not consumed in the analytical process, Company shall dispose of the Recipient’s samples the same day the analytical report is issued, unless instructed to store them for an alternate period of time, in a manner consistent with the U.S. Environmental Protection Agency regulations or other applicable federal, state or local requirements. If holding times apply, samples may be discarded after exceeding the applicable holding time. Any samples or projects that are cancelled or not accepted, will be returned to the Recipient and his/her own expense.

 

  1. Confidentiality. The parties acknowledge that to perform the Services, one party may disclose to the other confidential and/or sensitive information (“Confidential Information”). The party disclosing information is referred to as the “Disclosing Party” and the party receiving information as the “Receiving Party.” The term “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or activities including, but not limited to, client information, financial, legal, operational, technical, marketing, sales and business information, procedures and methods used by Company, formulas, trade secrets, ideas, computer programs and inventions, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives who have a need to know such information to perform the Agreement. The Receiving Party shall only use Confidential Information in furtherance of its performance of the Agreement, and not for any other purpose or for the benefit of any third party. Receiving Party’s obligations to protect the Confidential Information will survive for five (5) years from the receipt of Confidential Information. These confidentiality obligations shall not apply to any information which: (i) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; or (iv) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation. In no event shall Company’s use or disclosure of information relating to the development, improvement or use of any of Company’s products be subject to any limitation or restriction. If the Receiving Party is confronted with legal action to disclose Confidential Information it shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed. All Confidential Information shall remain the property of the Disclosing Party. All copies of Confidential Information shall be returned to the Disclosing Party promptly upon the Disclosing Party’s request or within ten (10) days of the expiration or termination of the Agreement.

If the Receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of the Agreement, it will promptly notify the Disclosing Party; take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication; and take all necessary steps to prevent any further breach of the Agreement. The Receiving Party agrees and acknowledges that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event, the Disclosing Party shall be entitled to seek injunctive relief, without the necessity of posting a bond, to prevent any further breach of the Agreement, in addition to all other remedies available in law or equity. Notwithstanding the foregoing, any Confidential Information that qualifies as a “trade secret” under applicable law shall remain subject to obligations of confidentiality for so long as such information retains its status as a trade secret, in accordance with applicable law.

  1. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) material breach of any terms of the Agreement. The Indemnifying Party’s liability under this section shall be reduced proportionally to the extent any act or omission of the other party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim. THIS SECTION 17 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

 

  1. Term & Termination:
  • Term. The Agreement shall commence upon the full execution of an Order by the parties and thereafter shall remain in effect for the term indicated in such Order, or if no term is indicated in the relevant Order, until terminated by either party as more fully set forth herein.

 

  • Termination for Breach. Either party may terminate the Agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under the Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party. Termination shall be in addition to any other remedies that may be available to the non-breaching party.

 

  • Obligations Upon Termination. Termination of the Agreement for any reason shall not discharge either party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Upon termination each party shall return the other’s Confidential Information in its possession at the time of termination. Upon the termination, Recipient shall promptly return to Company any equipment, materials or other property of Company which are in Recipient’s possession or control.

 

  1. Non-Solicitation. During the term of the Agreement and for one (1) year following the expiration or termination date of the Agreement, Recipient agrees to not directly solicit or induce any person who performs Services hereunder on behalf of Company to leave the employ of Company. Recipient is not prohibited from responding to or hiring Company’s employees who inquire about employment on their own accord or in response to a public advertisement or employment solicitation in general.

 

  1. Record Retention. Company shall retain records pertaining to the work performed for the Recipient for a period of three (3) years following the issuance of a work report. Should Recipient desire Company maintain the records in excess of three (3) years, the Recipient must notify Company in writing. The Recipient, in accordance with Company’s Fee schedule, will owe an additional record retention charge in effect at the time of the written request.

 

  1. Relationship of the Parties. The relationship of the parties hereto is that of independent contractors. Nothing in the Agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Neither party has the authority to bind or contract any obligation in the name of or on account of the other party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other party, or otherwise act on behalf of the other. Each party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.

 

General Terms Associated with the Sale of Company’s Products:

 

  1. Formation of Contract. An Order for Company’s products (“Products”) received by Company shall be deemed by Company to be an offer to purchase, which Company may accept or reject in its sole discretion. Company’s acceptance of an offer to purchase products is binding on Company only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Company). Any automatic or computer-generated response to an Order by Company shall not be deemed acceptance of an order. Company’s acceptance of an Order for Products is subject to these Terms.

 

  1. Cost of Delivery, Taxes & Other Charges. Recipient shall pay the costs of delivery of the Products. Recipient shall pay all sales, use, excise or similar taxes, or other charges, which Company is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale.

 

  1. Transfer of Property & Risk of Loss. Company retains the right and title to the Products sold to Recipient until Company is paid in full for the Products. Recipient shall obtain the right and title to the Products upon payment to Company of the purchase price and any taxes, excise or other charges. The right of loss, including, but not limited to the risk of loss, theft, damage or destruction, transfers to Recipient F.O.B. Company’s location.

 

  1. No Set-OFF. Recipient shall have no right of set-off or withholding, and no deduction of any amounts due from Recipient to Company shall be made without Company’s prior, express written approval.

 

  1. Patents. Company reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in Company’s opinion, infringe upon any U.S. patent, trademark or design now or hereinafter issued, registered, or existing and under which Company is not licensed.

 

  1. Disclaimer of Product Warranties. THE WARRANTIES SET FORTH HEREIN WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY Company IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF a sale. Company MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO RECIPIENT OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND Company SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE Company IN WRITING. Company’S SOLE OBLIGATION FOR A REMEDY TO RECIPIENT SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. RECIPIENT ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.

 

  1. Inspection. Recipient shall inspect the Products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by Recipient to provide Company with written notice of a claim within thirty (30) days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Recipient of all claims with respect to such Products.

 

  1. Excuses for Non-Performance. If the manufacture, transfer or receipt by either party of any Products is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to payment obligations.

 

  1. Company’s Rights. If Recipient should fail in any manner to fulfill the terms and conditions hereof, Company may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Company. If for any reason, the quantities of the Products covered hereby or of any materials used in the production of the Products reasonably available to Company shall be less than Company’s total needs for its own use and for sale, Company may allocate its available supply of Products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Company deems proper in Company’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform the Agreement.

 

  1. Compliance with Laws’ Export Laws. Recipient and Company shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of the Agreement. Recipient agrees to adhere to all applicable US Export laws and regulations with respect to the Products.

Miscellaneous Terms Applicable to the Agreement & All Orders:

  1. Limitation of Liability; Actions. IN NO EVENT SHALL COMPANY BE LIABLE UNDER THE AGREEMENT TO RECIPIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. COMPANY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY RECIPIENT TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.

NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.

  1. Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, pandemic, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the party so defaulting or delaying in the performance of the Agreement, for so long as such force majeure event is in effect. Each party shall use reasonable efforts to notify the other party in writing of the occurrence of such an event within five (5) business days of its occurrence, which notice shall include a description of the force majeure event and an estimate of the length of time such event will delay or prevent performance hereunder. Company shall receive an equitable compensation adjustment if the delays caused by any of the above result in changes, require additional Services, or result in additional costs to Company.
  2. Partial Invalidity. In the event that any part or portion of the Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into the Agreement; and (2) the remaining provisions of the Agreement shall continue in full force and effect.

 

  1. Assignment. Recipient may not assign, delegate or otherwise transfer the Agreement or its obligations hereunder, in whole or in part, without the prior written consent of Company, with such consent not to be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this section shall be null and void. No permitted assignment or delegation will relieve Recipient of its obligations under the Agreement, and as such, Recipient shall remain primarily liable in connection therewith. Company shall be entitled to assign or otherwise transfer the Agreement, in whole or in part, without the prior consent of Recipient.

 

  1. acknowledgement & Liability Waiver. Recipient acknowledges that the Products or Services are not intended as substitute professional medical advice, diagnosis or treatments, and that Recipient should always seek the advice of a physician or other qualified health care provider regarding medical conditions or treatments, and before undertaking a new health care regimen. Recipient hereby expressly assumes all risks of participating in this Agreement and receiving Products and/or Services. Furthermore, Recipient hereby expressly waives, releases and discharges Company from any and all liability, including but not limited to, liability arising from the negligence or fault of the Company for Recipient’s death, disability, personal injury, or actions of any kind which may hereafter occur to Recipient.

 

  1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the address set forth in the applicable Order or as otherwise designated by a party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a notice is effective only (1) upon written receipt by the Receiving Party; and (2) if the party giving the notice has complied with the requirements of this Section.

 

  1. Survival. Following the termination of the Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting ownership of work product, confidentiality, indemnification, limitation of liability, non-solicitation, accrued payment obligations, and governing law and venue.

 

  1. Waiver. No waiver of any term or right in the Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Agreement thereafter.

 

  1. Governing Law; Venue; Waiver of Jury Trial. The Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws principles. The parties hereby agree that any action arising out of the Agreement will be brought solely in any state or federal court located in Bexar County, Texas. Both parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

 

  1. Attorney Fees. If either party incurs any legal fees associated with the enforcement of the Agreement or any rights hereunder, the prevailing party shall be entitled to recover its reasonable outside attorney fees and any court, arbitration, mediation, or other reasonable litigation expenses from the other party.

 

  1. Collection Expenses. Delinquent accounts (those with outstanding invoices over ninety (90) days old) may be referred to an outside collection agency and/or attorney. If Company incurs any costs, expenses, or fees, including reasonable attorney fees and professional collection services fees, in connection with the collection or payment of any amounts due it under the Agreement, Recipient agrees to reimburse Company for all such costs, expenses and fees.

 

  1. Counterparts. An Order may be executed in one (1) or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.

 

  1. Headings; Construction. The headings/captions appearing in the Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. Each Order is the result of negotiations between the parties and their counsel. Accordingly, the Agreement shall not be construed more strongly against either party regardless of which party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting party.

 

  1. Entire Agreement; Modification. The Agreement (along with any attachments incorporated herein) sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise, relating hereto. No change, modification, amendment, or addition of or to the Agreement shall be valid unless in writing and signed by authorized representatives of the parties. Each party hereto has received independent legal advice regarding the Agreement and their respective rights and obligations set forth herein. The parties acknowledge and agree that they are not relying upon any representations or statements made by the other party or the other party’s employees, agents, representatives or attorneys regarding the Agreement, except to the extent such representations are expressly set forth in the Agreement.