TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT PROCEED WITH TESTING. 

We reserve the right to change or modify any of the terms and conditions contained in the Terms or any policy or guideline of the Sites, at any time and in our sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Sites, and you waive any right you may have to receive specific notice of such changes or modifications.

Analysis Services Agreement
MIDWEST LABORATORIES, INC. STANDARD TERMS AND CONDITIONS

  1. Effect of Terms: All Customers who place an order with Midwest Laboratories, Inc. along with its affiliates, agents, related entities, subsidiaries, officers, shareholders, employers, and assigns (“MIDWEST”) are subject to the following Terms and Conditions.
     
  2. Confidentiality. Reports and/or other information as requested are provided only to the Customer or those designated by the Customer unless otherwise required by law. Customer and/or its designees agrees not to use report or data in any manner that may harm or has the potential to harm the reputation or business of MIDWEST. Customer may not publish the name of MIDWEST without written approval.
     
  3. Test and Control Article Characterization. If submitted by Customer, the Customer is fully responsible for all test/control article characterizations, and the Customer agrees that MIDWEST is fully relying on the Customer for such test/control characterizations. This includes, but is not limited to, identity, strength, purity, composition and stability. Further, the Customer as a sponsor shall be responsible for the methods of synthesis, fabrication, or derivation of the sample. MIDWEST makes no representations or warranties of any kind (express or implied) about the representative nature of the test/control article submitted by the Customer.
     
  4. Delivery of Samples. Customer is responsible for samples until they are received by MIDWEST personnel. MIDWEST is not responsible for samples that are rejected because of holding time or improper preservation or storage before samples are received by MIDWEST personnel.
     
  5. Acceptance of Samples. If MIDWEST determines that the sample will not yield valid data for any reason (including but not limited to sample preservation, improper sample containers, or samples that require modification of the normal procedures) samples will not be accepted and MIDWEST will notify Customer of such determination. If modification of the procedures is possible, fees for the modification will be determined. If Customer agrees to the fees verbally or in writing the samples will be accepted and processed for the agreed upon fees.
     
  6. Standard Services. Analyses within stated turnaround times (calculated in business days, excluding weekends and holidays), if MIDWEST has stated in writing a turnaround time, otherwise, as is reasonable in the industry. Rush analysis, weekend and holiday service is available but may incur additional costs. It is Customer’s responsibility to inquire of such charges prior to submission of samples for analysis.
     
  7. Rush Analysis. Rush Turnaround Times (TAT) are available upon request and must be approved by an MIDWEST team member prior to sample submission. MIDWEST is not liable for extensions of TATs as a result of highly-contaminated samples. Turnaround times may be extended as a result of improper sampling, preservation, sample matrix, wide ranges of analyte concentration or other issues outside of MIDWESTs control.
     
  8. Acceptance of Test Reports. All reports and letters issued by MIDWEST are for the exclusive use of the Customer to whom they are addressed. No other entity or person may rely upon or use such letter or report without the written consent of MIDWEST. MIDWEST reports apply only to the specific samples tested under stated test conditions and protocols and test results are not necessarily indicative of the qualities of apparent identical or similar testing or conditions. MIDWEST shall have no liability for any deductions, inferences or generalizations drawn by the Customer or others from MIDWEST’s reports. If the Customer requests verification of any part of the test report, MIDWEST shall be notified within thirty (30) days of submission of the report to the Customer. Failure to notify within this thirty (30) day period acknowledges acceptance of the report. Should additional work be required for verification purposes, MIDWEST shall be entitled to the reasonable value of the additional work performed by MIDWEST. Payment for any test report or other MIDWEST invoice shall not be conditioned upon acceptance and/or approval of a third party or the results of the test.
     
  9. Hazardous Wastes. Customer must notify MIDWEST of any materials suspected of being hazardous and provide the appropriate documentation and packaging of such samples. MIDWEST reserves the right to refuse samples that may cause a hazard to which MIDWEST is not equipped to handle and will return samples to the Customer.  It is the responsibility of Customer to label and meet all regulations on samples that are hazardous. Hazardous samples may be returned to Customer or Fees may be applied to have hazardous material properly and safely disposed of by a third party.
     
  10. Quality Assurance. MIDWEST agrees to follow their Quality Assurance Manual and Method SOPs unless specified in writing. It is up to Customer to determine if these procedures meet their needs prior to placing the order.
     
  11. Retention of Samples. Unless otherwise specified water samples are stored for a minimum of 14 days after completion of the work order.  Empty containers and samples that are analyzed for microbiology are disposed of immediately. MIDWEST may have the capacity to store samples for longer periods of time for further or additional analysis, if requested prior to sample disposal. Additional fees may be applied.
     
  12. Cancellation Policy. All orders cancelled may be subject to a cancellation fee. If sample(s) are processed for analysis before cancellation has been requested, cost of prep completed and/or full analysis cost will be charged.
     
  13. Reports. Reports will be kept for 3 years unless otherwise required by law or specified in writing.
     
  14. Valid Orders. It is the sole responsibility of the Customer to determine that services ordered are suitable for the purposes of the Customer’s intended use. Any order provided to MIDWEST, notwithstanding the fact that such order may have been given or signed by a person not authorized by the Customer, shall be deemed to constitute a valid order.
     
  15. Payment Terms.
    • MIDWEST reserves the right to request an initial retainer fee before MIDWEST begins work on the matter. Any retainer will be deposited and credited to Customer’s account and will be applied toward all invoiced fees and costs incurred in this matter. MIDWEST will bill against the retainer as fees are expended. Should MIDWEST anticipate at any time that costs will exceed the amount in retainer, it MAY request pre-payment in MIDWEST’s sole discretion. Upon termination of this Agreement, and the payment of any sums due and owing to MIDWEST, any excess will be refunded to Customer.
    • To the extent that any invoice exceeds the amount of the retainer held on credit, and such costs are invoiced, Customer agrees to pay the invoices within 15 days of the date on the invoice, unless otherwise designated in writing by MIDWEST.
    • Invoice Disputes. Customer shall notify MIDWEST in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within 15 days from the date of such invoice. Customer will be deemed to have accepted all invoices for which MIDWEST does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within 15 days.
    • The Customer’s obligation to pay MIDWEST is not in any way conditioned upon Customer receiving payment from any third party or on any specific result from MIDWEST’s services. If the Customer fails to make payment according to the agreed upon terms, MIDWEST shall have the full right to cease all work, withhold test data and or reports, and cause all invoices to be immediately due and payable, even if such ceasing would compromise the Customer’s study and require the Customer to prepare and submit new samples. Customer is still obligated to pay for the testing up to the date testing is ceased by MIDWEST.
    • In the event the Customer defaults in making payment of any amount that has become due and owing, the full outstanding balance (whether due or not) will immediately become due and payable without further notice to the Customer.
    • Past Due accounts will be charged 1.5% per month of the unpaid balance. Customer agrees to reimburse MIDWEST for the costs of collection of past due debts including but not limited to collection and legal fees, to the fullest extent permissible by applicable law. Customer may not defer billing to a third party. MIDWEST will not be responsible for holding times or deadlines that are missed because of changes or delays in payment.  Payments are accepted by check, ACH or credit card.  Credit card payments incur a 3% fee if payment is made after the date of the invoice.  Returned checks are charged $25 fee
       
  16. Warranties. Services performed by MIDWEST, including its works and reports are not governed by the Uniform Commercial Code (UCC). Except as stated expressly herein, MIDWEST disclaims all warranties, express or implied, including any warranties of merchantability or fitness for a particular purpose. MIDWEST shall have no liability for incidental or consequential damages of any nature whatsoever. The Customer acknowledges and agrees that MIDWEST provides no warranty, express or implied regarding any supplies, devices, or monitoring.
     
  17. Customer Remedies. MIDWEST warrants the accuracy of the results of samples as submitted, no other warranty or liability for the use of the result is expressed or implied. Expressly, MIDWEST will provide services in accordance with this Agreement and MIDWEST will not have any responsibility other than to exercise reasonable skill and care in the performance of services. In the event any court of competent jurisdiction or arbitrator makes a final determination that MIDWEST has failed to comply with such standards of conduct in providing services and that such failure directly caused the Customer harm, MIDWEST will be responsible to compensate the Customer for such direct harm, PROVIDED, HOWEVER, that the amount of such compensation will not exceed the cost of services provided that caused the Customer harm or the damages incurred, whichever is less, and that, under no circumstances will MIDWEST be liable to the Customer for any incidental, indirect, consequential, or punitive damages. EXCEPT AS OTHERWISE PROVIDED EXPRESSLY HEREIN, MIDWEST MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED OR GOODS SOLD, INCLUDING, BUT NOT LIMITED TO, ANY “IMPLIED WARRANTY OF MERCHANTABILITY” OR “FITNESS FOR A PARTICULAR PURPOSE.”
     
  18. Litigation. MIDWEST and Customer waive the right to a trial by jury.
     
  19. Indemnification. Customer agrees to indemnify MIDWEST for gross negligence or misconduct on the part of Customer or its agents unless such gross negligence is a result of negligent or willful omissions on the part of MIDWEST.
     
  20. Third Party Claims. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS MIDWEST AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND SUBCONTRACTORS (EACH AN “INDEMNIFIED PARTY”) FROM ALL LOSSES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF, OR RELATED TO, CLAIMS ASSERTED BY THIRD PARTIES THAT RELATE TO THE TESTING RESULTS OR TESTING DATA PROVIDED BY MIDWEST TO CUSTOMER, OR THE MANUFACTURE, MARKETING, OR SALE OF CUSTOMER’S PRODUCTS OR THAT RELATE TO THE SERVICES RENDERED.
     
  21. Release and Waiver. TO THE EXTENT PERMITTED BY LAW, CUSTOMER WAIVES AND RELEASES MIDWEST AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS AND SUBCONTRACTORS FROM ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, OR CAUSES OF ACTION FOR ANY ALLEGED LOSS, DAMAGE, OR INJURY, OTHER THAN A CLAIM FOR COMPENSATION FROM MIDWEST PURSUANT TO SECTION 8. THIS RELEASE AND WAIVER COVERS ALL CLAIMS ARISING IN TORT AS WELL AS THOSE ARISING UNDER ANY STATE OR FEDERAL STATUTE, THAT IN ANY WAY ARISE OUT OF, OR RELATE TO, THE SERVICES OR PERFORMANCE OR ALLEGED NON-PERFORMANCE UNDER ANY AGREEMENT BETWEEN THE PARTIES.
     
  22. Recovery of Legal/Collection Costs. Should MIDWEST instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against the Customer in the implementation or protection of MIDWEST’s rights, MIDWEST shall be entitled to the recovery of all legal fees, costs and/or collection costs arising therefrom, to the fullest extent permissible by law.
     
  23. Governing Law and Consent to Jurisdiction. The Customer hereby agrees that this Agreement and all other agreements between MIDWEST and the Customer shall be deemed to be made and governed by the Laws of the State of Nebraska. The Customer hereby consents that any legal action brought by MIDWEST for collection of any fees or invoices not paid by the Customer or other remedies sought by MIDWEST, shall be brought in a court of competent jurisdiction in Douglas County, Nebraska, or if the action is to be in federal court, in the U.S. District Court for the District of Nebraska.
    • Copyright.  The Customer acknowledges and agrees that all testing protocols or processes used to generate test results are the sole ownership of MIDWEST. No rights or ownership of MIDWEST’s copyrights or other intellectual property of MIDWEST is transferred by invoicing the Customer for protocols used in the performance of the service by MIDWEST. Customer agrees that it shall not infringe upon any of the intellectual property rights of MIDWEST. Nothing in this Agreement shall be construed as a sale or transfer of MIDWEST’s copyrights, trademarks or any other intellectual property owned or held by MIDWEST. Until such time as the Customer has paid MIDWEST in full with respect to any services provided by MIDWEST, the license to use any test results or any data related thereto shall be prohibited and shall remain the property of MIDWEST. MIDWEST shall, in its sole discretion, without notice to the Customer, be entitled to take possession of any such reports which have not been paid for or for which payment is overdue. Customer shall not be entitled to a credit with respect to services that may have been partially paid for.
    • Miscellaneous. The failure of a party to insist upon strict performance of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance. Any waiver by a party of a particular provision or right shall be in writing, shall be as to a particular matter and, if applicable, for a particular period of time and shall be signed by such party. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable.
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