Swastika Laboratories Ltd. General Terms and Conditions of Service
The following General Terms and Conditions of Service apply to all quotes, orders and contracts between the Customer and Swastika Laboratories Ltd. (SLL) except for any changes mutually agreed upon in writing.
- SLL will provide testing and assaying services to the Customer in accordance with: the Customer’s written instructions; reasonable care and skill; relevant trade custom, usage and practice; and in-house methods and procedures deemed appropriate by SLL.
- SLL reserves the right to sub-contract assays or tests to another qualified laboratory in the event that SLL is unable to perform the work at its own facilities. The Customer will be informed beforehand should there be any objection to the choice of the sub-contractor.
- SLL will attest to the results in its Assay Certificates signed by an authorized employee however SLL will not be responsible for certifying the origin and integrity of the samples submitted by the Customer.
- SLL will only release assay results or Assay Certificates to the Customer and its authorized representatives. No information will be provided to any third party unless instructed in writing by the Customer.
- The Customer will ensure that each submitted sample is properly packaged and uniquely labelled. Before proceeding with a testing order, SLL will contact the Customer in the event that:
- Samples, sample labels or assay instructions are missing
- Sample integrity is compromised due to packaging damage
- Customer’s order instructions are insufficient or ambiguous
- SLL will take all reasonable precautions to protect the Customer’s samples, pulps and sample rejects from receipt to final storage at its facilities but SLL will incur no liability for loss, deterioration or damage thereto from any cause whatsoever.
Rates, Charges and Payment Terms
- Upon request, SLL will provide the Customer with a written quote for the services to be performed and the Customer agrees to pay the stated fees and conditions when the Customer’s samples and assay instructions are received at the SLL facilities. If additional services are required subsequent to a quote, SLL will provide the Customer with an amended quote.
- When samples and instructions are received in the absence of a written quote, the Customer will pay the fees prescribed in the SLL General Market Rates.
- The Customer agrees to pay the SLL invoice within 30 days of the invoice date. An interest rate of 1% per month may be applied on any outstanding balances over 30 days. SLL additionally reserves the right to:
- Assign a collection agency and/or legal counsel to recover all outstanding balances in a delinquent Customer account. All such costs will be to the account of the Customer.
- Withhold assay results from the Customer and retain the Customer’s samples, pulps and sample rejects until all outstanding balances, including interest and collection costs, are paid in full.
- The Customer agrees not to unreasonably withhold or defer payment of any invoice because of a dispute against SLL. The mechanism for handling disputes is prescribed below.
- If the assay order or contract is terminated by either the Customer or SLL for any reasonable cause, the Customer will pay for the work and extra costs incurred by SLL.
- Monthly storage of samples, pulps and sample rejects at SLL facilities beyond a three (3) month period from the Assay Certificate date must be arranged by the Customer at which time storage charges will apply.
- Shipping arrangements and costs relating to the return of reject samples and pulps will be the responsibility of the Customer.
- SLL will arrange for the disposal of pulps and sample rejects upon written instructions from the Customer. The customer will pay the agreed upon disposal costs.
Liability and Indemnification
- The liability of SLL shall be limited in all events to the amount of fees paid by the customer herein and none other whether by way of negligence, misfeasance or non-feasance on the part of SLL.
- The parties hereto agree that under no condition shall there be any other liability against SLL except as specifically set out in this agreement and in any event the liability shall never be more than the amount of fees paid by the customer to SLL.
- The customer shall indemnify and save harmless SLL, referred to as the indemnified parties, from and against any and all suits, actions, claims, losses, liabilities, judgment award and costs including any legal fees incurred by board or asserted fees and expenses incurred by, borne, or asserted by any third party against any of the indemnified parties in any way relating to arising as a result from any use by the indemnifying party of the service information provided by SLL and in the event that SLL shall be added to any action, the customer shall deposit a sum sufficient to cover all legal fees and costs of SLL in the defence of the said action.
- In the event of a dispute relating to the findings and calculations of SLL on any test for the customer, SLL shall have the right to re-test the original product.
- In the event that the results of that test are consistent with the original certificate the customer shall pay for the repeat testing on the same basis as the original testing.
- In the event that the results shall be significantly different than those in the original certificate, SLL shall issue a new certificate at no cost and/or at their option can refund the customer for the fees charged on the original certificate.
- In the event that a third party laboratory shall provide results different than that of SLL, the comparison shall be on a consistent and similar basis as the test paid for by the customer.
- Prior to any dispute or resolution the customer shall provide to SLL a complete copy of the certificate of the third party testing laboratory and where necessary to resolve the dispute shall provide a consent for SLL to obtain all of the notes, findings and memorandum relating to the said testing.
Governing Law and Jurisdiction
This Contract shall be governed by the laws if the province of Ontario.
In the event that any of the above mentioned clauses are severed the rest shall continue and will not affect the validity or enforceability of any other provision and any invalid provision will be serverable.
This Agreement shall be binding upon the parties hereto, their heirs, executors, administrators and assigns.