Unless otherwise subject to a written contract signed by and specifically designated by the parties, all orders and nominations for Services and all Services performed by AmSpec are subject to these Terms and Conditions (“Terms”). Any proposal by Customer for additional or different terms, and any attempt by Customer to vary any of the provisions of these Terms is hereby rejected by AmSpec. No modification of these Terms shall be valid unless agreed in writing and signed by an authorized representative of both the Customer and AmSpec.
At Customer’s request, AmSpec agrees to perform, and Customer hereby agrees to accept, the inspection, testing, quantity and quality control services set forth in any order or nomination provided by Customer (“Services”). “Services,” as used in these Terms shall mean all services performed by AmSpec for Customer, including requests by Customer that AmSpec provide equipment and / or materials in the furnishing of its Services. “Services,” also as used herein, shall include information, documents, reports and certificates developed by AmSpec in the course of providing the Services hereunder. Customer shall pay AmSpec for the cost of any equipment or materials AmSpec uses in the performance of the Services. AmSpec does not, by performing Services hereunder, assume, abridge or undertake to discharge any duty or responsibility by the Customer or any other person or entity. AmSpec undertakes to perform only the Services agreed to between AmSpec and Customer. Neither the title nor the ownership of any Services or the nature of a commodity or product implies that any particular procedure has been followed or analyses have been performed, other than as have been specified in the Services. AmSpec Services are issued solely for AmSpec’s Customers and may reflect only the information requested by the Customer. There may be other relevant data and information not included in the Service documents. The Services are for the sole and exclusive benefit of Customer, and not for any third party.
Customer acknowledges and agrees that it has provided all material information necessary in any order or nomination to enable AmSpec to perform the requested Services. Customer acknowledges and agrees that it shall obtain for AmSpec all necessary access to the premises where the Services are to be performed. Customer acknowledges and agrees that it is at all times responsible for the safety, security, care, custody and control of the sampling and inspection site. Customer is responsible for the condition in and around the site and for advising AmSpec of the same, including but not limited to, any known hazards, actual or potential, and of any information required to enable AmSpec to perform the Services safely and in a manner consistent with government standards and industry protocols.
For the Services performed pursuant to these Terms and Conditions, Customer will pay AmSpec the price as agreed upon in the effective AmSpec Price Schedule. In the event that any additional reasonable and necessary expenses arise as a result of the performance of the Services, AmSpec will inform Customer of the additional expenses and Customer shall pay same to AmSpec. The full price will be billed upon completion of the Services. Customer shall be the only party billed for the Services. Invoices will clearly specify the nature of the Services performed and the amounts due. All invoices, unless otherwise provided specifically on an invoice, are due immediately upon receipt by Customer. Customer shall pay AmSpec the amount shown on each invoice at the place and in the manner specified by AmSpec on the invoice. Payments that are not timely received are subject to late charges of 1.5% per month not the exceed 18% per year or the maximum rate allowed by law. Customer shall have no right to offset, withhold or defer the payment of any sums due and owing to AmSpec on account of any dispute which it may allege against AmSpec.
Any taxes, duties, fees, charges or assessments of any nature levied by any governmental authority in connection with these Terms or as a result of the Services performed by AmSpec, shall be Customer’s responsibility and shall be paid directly by Customer to the applicable governmental authority. If AmSpec is required by law or otherwise to pay any such tax, duty, fee, charge or assessment as a result of Customer’s failure to comply with any applicable laws, the amount of any payment so made by AmSpec shall be added to the applicable invoice and reimbursed by Customer to AmSpec upon remittance of AmSpec’s applicable invoice.
If at any time the responsibility of Customer or the credit risk of Customer shall become unsatisfactory to AmSpec, AmSpec may require cash payment in advance of Services rendered, or security satisfactory to AmSpec prior to performing the Services.
Customer may terminate any order or nomination, in whole or in part, at any time upon written notice to AmSpec. AmSpec may charge to Customer actual out-of-pocket costs and expenses incurred as a result of the termination, for any partial performance in accordance with AmSpec’s current rate schedule. Termination charges, if any, shall not exceed the price under the applicable order or nomination. Customer shall have the right to make changes, within the ability of AmSpec to perform, to an order or nomination, upon providing written notice of the same to AmSpec. If any such changes cause an increase or decrease in the price, a mutually agreeable adjustment shall be made, and the order or nomination shall be modified in writing accordingly. However, nothing in this Section shall affect either party’s right to cancel an order or nomination, or these Terms, due to a material breach of the other party hereunder. All of the obligations, rights, indemnifications and remedies created by the provisions of these Terms shall survive the cancellation, termination or completion of any order or nomination.
AmSpec warrants exclusively to Customer that the Services provided by AmSpec will be performed in a good and workmanlike manner, consistent with industry standards. Upon receipt of prompt written notice from Customer of a breach of this warranty, AmSpec agrees to use reasonable efforts to correct or redo the Services at issue, at its sole expense. THE FOREGOING WARRANTY IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AMSPEC’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES THEREUNDER ARE SOLELY AND EXCLUSIVELY STATED IN THESE TERMS. ALL OTHER WARRANTIES ARE SPECIFICALLY AND COLLECTIVELY DISCLAIMED FOR ALL PURPOSES.
AmSpec’s sole liability and Customer’s exclusive remedy for non-conforming Services shall be reperformance of the Services or a refund of the price paid by Customer for the non-conforming Service.
Customer agrees to defend, indemnify and hold harmless AmSpec and its respective affiliates, officers, directors, employees, members and agents, from and against all claims, losses, costs, expenses, damages, suits or liabilities of any nature incurred as a result of personal injury or property damage arising out of Customer’s acts or omissions, negligence, willful misconduct or caused by Customer’s personnel, property or property under the responsibility of Customer.
AmSpec expressly advises Customer that AmSpec is not an insurer or guarantor of the quantity or quality of any surveyed or inspected product or cargo and therefore, disclaims any liability therefor. In providing inspection and analytical services AmSpec employees exercise reasonable care and best judgment under the prevailing conditions as they are observed and understood, utilizing accepted standards and normal operating procedures. Any information or recommendation, whether express or implied by AmSpec, is based solely upon assumptions based on factors available at a specific point in time. Accordingly, AmSpec does not accept any liability with respect to the use of or for any damages resulting from the use of any information, data, analytical results, apparatus and methods. Furthermore, AmSpec will not be liable or responsible to any third party for the Services delivered, or any omissions from the document delivered therefrom.
UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW OR EQUITY SHALL AMSPEC BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE, LOST PROFIT AND / OR LOST OPPORTUNITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF AMSPEC FOR ANY DAMAGES OR LIABILITY ARISING UNDER OR RELATED TO THESE TERMS OR ANY SERVICE FOR ANY REASON OR CAUSE WHATSOEVER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO AMSPEC PURSUANT TO THESE TERMS AND CONDITIONS.
Customer and AmSpec each shall carry appropriate insurance coverages.
In the event an employee of AmSpec is required to testify or be a witness at trial, deposition, any administrative proceeding or otherwise assist in any dispute between Customer and any third party with respect to Services provided by AmSpec, and whether or not AmSpec or its employee has been subpoenaed, Customer shall pay AmSpec the current hourly or per diem rate, fee and any other out-of-pocket costs to provide such assistance services rendered.
Customer is procuring the Services of AmSpec solely for its own account and not for any other person or entity. There are no third-party beneficiaries to these Terms and Conditions between Customer and AmSpec. No third party may rely upon any AmSpec report provided as part of the Services. Customer shall defend, indemnify and hold harmless AmSpec and its respective affiliates, officers, directors, employees, members and agents, from and against all claims, losses, costs, expenses, damages, suits or liabilities made by any third party in any way related to the Services.
Failure of either party to insist upon strict performance of any provision of these Terms and Conditions by the other party shall not be deemed to be a waiver by such party of its rights or remedies, or a waiver by it of any subsequent default by the other party in the performance of or compliance with any of the terms of this Agreement.
Unless as is otherwise provided for herein, these Terms and Conditions supersede all other agreements, oral or written, made with respect to the subject hereof and the Services contemplated hereby, and contains the entire agreement of the parties.
If any provision of this Agreement is determined to be unlawful or unenforceable, such provision will be deemed to be severed from this Agreement and all other provisions shall remain in full force and effect.
Customer agrees that it shall comply with all applicable export statutes, laws and regulations.
Each Party shall, and shall ensure that its Affiliates and any Third Party contractors shall, comply with the United Stated Foreign Corrupt Practices Act (including as it may be amended) (the FCPA), and any analogous laws or regulations existing in any other country or region in the Territory, in connection with its performance under this Agreement. Neither Party will make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, officials of international public organizations, candidates for public office, or representatives of other businesses or persons acting on behalf of any of the foregoing, that would constitute violation of any law, rule or regulation.
Customer represents and warrants that: (i) it is not on an SDN List (defined below), nor is it directly or indirectly owned or controlled by an SDN (defined below); and (ii) the purchase of Services, and the consummation of any other transaction contemplated by this Agreement, will not violate any country sanctions program administered and enforced by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. For the purposes hereof, an SDN List is defined as one of the lists published by OFAC of individuals and companies owned or controlled by, or acting for or on behalf of, OFAC targeted countries, as well as individuals, groups, and entities, such as terrorists and narcotics traffickers, designated under OFAC programs that are not country-specific, and an SDN is one of the individuals or companies listed on an SDN List.
AmSpec shall be excused from any liability for non-delivery, delay in delivery or delivery of nonconforming Services arising from any events beyond its control, whether or not they were foreseeable by either party when accepting these Terms and Conditions. Force majeure events may include, but are not limited to, war, riot, strikes, lockouts, labor disturbances, labor shortages, terrorist acts or acts of God.
AmSpec will perform all Services as an independent contractor of Customer. Neither these Terms nor the performance of the Services hereunder shall be construed to establish a partnership or joint venture relationship
This Agreement shall be governed by the laws of the State of Texas. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be held in Houston, Texas before a single arbitrator and judgment on the award rendered by the arbitrator shall be binding and final and entered in any court having jurisdiction thereto.