The following terms and conditions apply to all services performed by Kaycha Labs (“Kaycha”) for any and all customers / clients (each a “Client”).
(a) All orders accepted by Kaycha from Client will be governed by these Terms and Conditions of Service (the “Terms”), including orders placed by telephone, electronic message, electronic ordering systems, Kaycha-approved work orders, or made by delivery of samples. A contract with these Terms comes into existence when an order has been placed with Kaycha and the order is accepted by Kaycha. An order placed with Kaycha is considered as accepted by Kaycha only when Kaycha proceeds to perform the request set forth in that order or Kaycha accepts the order in writing. All services provided by Kaycha are expressly limited to, and will only be provided on the basis of, the terms and conditions stated herein and to the exclusion of all other terms and conditions, including any terms or conditions which Client may purport to impose or which appear on any website, purchase order, purchasing document, order confirmation, correspondence or other document or communication provided by Client, irrespective of their date of communication.
(b) These Terms set forth the entire agreement between Kaycha and Client, and supersede all prior and contemporaneous negotiations, agreements, representations, understandings, and commitments with respect thereto. Client agrees that its standard terms, conditions, and/or pre-printed provisions on any purchase order, acknowledgment, release or other purchasing document purporting to address the same subject matter shall be null and void and of no force or effect, whether such terms conflict with or purport to add terms to these Terms. Kaycha hereby rejects any prior offer made by Client to perform services, and objects to and rejects any additional or different terms proposed by Client with respect to the subject matter of these Terms, including, but not limited to, warranties of suitability, fitness or non-infringement, requirements for Kaycha to indemnify Client, pay damages that are unlimited in amount or pay indirect damages of any kind (including, but not limited to, consequential, incidental, punitive or special damages, and damages for lost profits or revenue, loss of use, business interruption, loss of information or for the procurement of substitute services). No employee, agent or subcontractor, other than an authorized officer of Kaycha, has the authority to alter or waive any of these Terms as to Kaycha or to make any representation on behalf of Kaycha which conflicts with or purports to override any of these Terms; and no such alteration, waiver or representation shall be binding upon any Kaycha, unless it is in writing and signed by an authorized officer of Kaycha to be bound.
2. Performance of Services
Kaycha will perform laboratory testing services in accordance with an order accepted by it pursuant to these Terms (the “Services”). Kaycha warrants that all Services provided by it will be performed in a good and workmanlike manner with reasonable skill, care and diligence. A request for additional services on Samples (defined herein) that have arrived at the laboratory will be treated as a new order and may postpone estimated delivery dates accordingly. Services may not be cancelled or modified by Client after testing is initiated.
3. Price and Terms of Payment
Client shall compensate Kaycha for Kaycha’s provision of Services. The price for the Services does not include any local, state or other sales or use taxes, excise taxes, goods and services tax or similar tax packaging or shipping charges. Client shall assume and shall be solely responsible for any such applicable taxes. Payment of all invoices is due strictly within thirty (30) days of the invoice date. The challenge or questioning of any laboratory test result will not entitle Client to defer payment. Any invoice which remains outstanding after due date may be additionally charged with an administrative penalty of Thirty Dollars ($30.00) and may carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower. The invoice settlement method is check, bank transfer or direct debit. Kaycha is entitled to require prepayment of one hundred percent (100%) of any and all fees associated with any and all orders as a condition of acceptance of each such order. In addition, even if Kaycha has accepted and begun to fulfill an order, it has the right at any time to stop performing Services if Client’s account is overdue for that order or any other order.
(a) Client shall provide Kaycha with sufficient amounts of all samples or materials to be tested (the “Samples”) together with all other information necessary for Kaycha to perform the Services.
(b) Client hereby warrants to Kaycha that all Samples provided to Kaycha by Client for analysis are: (i) organized and ready for analysis; (ii) free of foreign materials or substances prohibited by applicable law; (iii) safe and in a stable condition for and during transportation, storage under normal conditions, and use in connection with instruments and by personnel or representatives.
(c) Kaycha may conduct an initial examination of the Samples to check their condition before any Services are performed. If the Samples do not comply with the requirements described in these Terms or any order, then Kaycha may notify Client regarding the non-compliance. In each such case Kaycha may: (i) test the Samples as set forth in these Terms which may result in an additional charge to Client for such preparation and a delay to the order which will be documented via a written modification to the order; (ii) terminate the order if the result of the initial examination indicates that an analysis is impossible or is possible only under more difficult conditions than originally anticipated; or (iii) modify the order in writing as agreed upon by the parties to facilitate completion of the order based upon correction of the non-compliance.
(d) Kaycha accepts no responsibility for any loss or damage which may occur to any Samples in transit to any facility or site. Client will at all times be liable for the security, packaging and insurance of the Samples from its dispatch until it is delivered to Kaycha’s facility. Kaycha shall take commercially reasonable steps to store the Samples; however, Kaycha will have no obligation or liability for Samples sent to Kaycha for storage. Kaycha shall not be held responsible for any loss or destruction of Samples, unless such loss or destruction is caused by its gross negligence or willful misconduct.
(e) Kaycha can dispose of or destroy Samples immediately after the Services have been performed as required by applicable law, unless applicable law requires Kaycha to retain the Samples. Kaycha also can dispose of or destroy the Samples without further notice.
5. Certificates / Reports
Any certificates or reports resulting from the Services will be prepared in Kaycha’s standard format and in accordance with Kaycha’s standard operating procedures, unless otherwise agreed in writing. Client shall notify Kaycha in writing before the commencement of any of the Services if there are any specific documentation requirements related to the testing. Additional fees may apply for Client specific documentation requirements. Where statements of conformity to a specification or standard for a test are included on a certificate or report (e.g. pass/fail, in tolerance/out-of-tolerance), Kaycha shall make the decision in accordance with the respective statute/regulation. Where statute/regulation is absent, this decision shall be based on the numerical result without consideration of the uncertainty of the result.
6. Estimated Delivery Dates
Delivery dates and turnaround times stated in any order are estimates and do not constitute a commitment by Kaycha. Nevertheless, Kaycha shall make commercially reasonable efforts to meet the estimated delivery dates and turnaround times as stated in each order. Unless a different delivery method is specified in writing, certificates and reports are sent by email or via other electronic means, to the attention of the persons indicated by Client in the order. Kaycha shall not be responsible for any delays in the timely progression of the Services to the extent any such delay is attributable to Client action or inaction. During the performance of the Services, Client shall use commercially reasonable efforts to provide any approvals required to be given by Client to Kaycha in a timely manner.
7. Intellectual Property Rights
Unless prohibited by applicable law, title in any analysis results, analytical reports, or other work product (the “Results”) supplied by Kaycha to Client shall remain with Kaycha until all invoices in respect thereof have been paid by Client in full, and until such full payment, Client shall have no ownership or property rights therein. Even after payment in full by Client, Kaycha shall retain the right to store, aggregate, use and publish all Results in an anonymous form which does not identify Client. Client hereby acknowledges and agrees that any and all inventions, discoveries, trade secrets, know-how, improvements, methods, systems, software programs, practices, procedures and processes, and proprietary materials including, but not limited to, structural and functional information and other data repository, formulations and techniques, whether or not patentable or copyrightable that is owned or controlled by Kaycha as of the date hereof, or that is developed, conceived or reduced to practice during or outside of the performance of the Services by Kaycha, and all modifications or improvements thereto, shall vest in, be the property of, and shall be owned solely and exclusively by, Kaycha.
8. Limited Warranties and Responsibilities
(a) Analyses, interpretations, assessments and conclusions are prepared with a commercially reasonable degree of care, but Kaycha cannot guarantee that Results will always be accurate. Results are influenced by outside factors including, but not limited to, the condition of the Samples when received by Kaycha, the current state of (and limitations of) technology and methods applied by Kaycha, applicable testing tolerances, selection of testing methodologies from among available options, and the impact of contaminants or undisclosed/unknown substances contained in a Sample. As a result, the Results may not always be 100% exact or relevant. Due to the inherent limitations of testing factors described above, Client must independently verify the validity of any Results, interpretations, assessments and conclusions supplied by Kaycha if it wishes to rely on the same in respect of matters of importance, and shall do so at its own risk.
(b) Each Result relates exclusively to the Sample analyzed by Kaycha. In all cases, Client’s interpretations, assessments and conclusions derived from the Results of the Services provided by Kaycha are solely Client’s responsibility.
(c) Client hereby represents to Kaycha that: (i) it has full power and authority to enter into these Terms and the undersigned is its duly authorized representative; (ii) these Terms have been duly authorized; (iii) these Terms are binding upon it; and (iv) performance of these Terms does not conflict with any other legal obligation of Client.
(d) Unless explicitly agreed in writing by all parties, the contractual relationship shall be exclusively between Client and Kaycha. There shall be no third-party beneficiary or collateral warranty relating to any Services.
9. Limitation of Liability
Except to the extent that such limitations are not permitted or are void under applicable law, in no event shall Kaycha or Client be responsible for any indirect, consequential, incidental, punitive or special damages (including, without limitation, damages for lost profits or revenue, loss of use, business interruption, loss of information, or for the procurement of substitute services) of each other or of any third party, even if it has been advised of the potential for such damages and regardless of whether such damages arise in contract, negligence, tort, under statute, in equity, at law or otherwise. In all cases, Kaycha’s liability for any claim or series of related claims of Client or of any third party arising under or relating to these Terms shall be limited to the value of the Services to which such claim relates.
10. Exclusive Remedy
In the event that any Services are improperly or inadequately performed by Kaycha, Client’s sole and exclusive remedy, and that Kaycha’s sole obligation, with respect to such deficient Services shall be for Client to either: (i) require that Kaycha to re-perform such improper or deficient Services, subject to this Section 10, or (ii) request a refund of all amounts paid to that Kaycha for such improperly or inadequately performed Services. Objections to Results must be made within 3 days after Client receives the Results. However, unless the results of the repeated analysis do not match those of the original analysis in all material respects, Client shall bear the costs of the repeat testing or review. Furthermore, a repeated analysis will be possible only if Kaycha has a sufficient amount of the original Samples on hand when it receives Client's objection. Otherwise, Client will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat analysis.
11. Force Majeure
Kaycha shall not be held liable for delays, errors, damages or other problems caused by events or circumstances which are unforeseen or beyond its reasonable control, or which result from compliance with governmental requests, laws and regulations.
12. Result Data
Kaycha shall be entitled to save and process any and all data within or from the Results. Kaycha shall use commercially reasonable efforts to keep all Results confidential, subject to Kaycha’s rights in this Agreement. Notwithstanding anything to the contrary contained in these Terms, the Results may be disclosed by Kaycha as required by applicable law or legal process. Client remains responsible for any consequences due to the divulgence and use of such Results and any reliance of a third party on such Results and hereby agrees to indemnify Kaycha against any liability which Kaycha may incur as a result of such divulgence or any such third-party reliance. If Kaycha is required to provide testimony or records regarding any of the Services provided hereunder, including any Results, in connection with any legal, governmental or administrative process or proceeding, for any reason other than improper performance by Kaycha of the Services, then Client shall reimburse Kaycha for its reasonable costs, including the cost for time spent preparing and providing such information.
These Terms shall commence on the date set forth in Section 1(a) and continue to govern all Services provided by Kaycha to Client unless and until these Terms are modified by Kaycha in its sole discretion.
Kaycha may subcontract any or all Services requested by Client to any of its affiliates or to a third party.
15. No Assignment
Client may not assign, by merger, reorganization, operation of law or otherwise, or transfer any obligation or right of such party under these Terms to any other person or entity without the prior written consent of Kaycha. These Terms shall be binding upon the parties, their successors and their permitted assigns.
16. Governing Law; Venue; Waiver of Jury Trial
These Terms shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of law provisions. THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY ACTION BROUGHT BY ANY PARTY PURSUANT TO THIS AGREEMENT SHALL PROPERLY AND EXCLUSIVELY LIE IN FEDERAL OR STATE COURT LOCATED IN BROWARD COUNTY, FLORIDA. BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH ACTION. THE PARTIES IRREVOCABLY AGREE THAT VENUE WILL BE PROPER IN ANY SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION. THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT. THE PARTIES HEREBY FURTHER WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THEY MAY BE PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER OF JURY TRIAL IS SEPARATELY GIVEN, KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE. EACH PARTY IS HEREBY AUTHORIZED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF SUCH WAIVER OF RIGHT TO TRIAL BY JURY.
17. Independent Contractor
It is understood and agreed that Kaycha shall perform its duties as an independent contractor and not as an agent, employee, partner or joint venture of Client.
A waiver of any term, provision or condition of these Terms shall be effective only if it is in writing and no waiver, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver or estoppel of any such term, provision or condition or any other term of these Terms. No failure or delay by Kaycha in exercising any right or remedy under these Terms shall constitute a waiver of such right, nor shall it prevent or restrict its further exercise.
19. Changes to Terms
Kaycha reserves the right to change these Terms at any time and will post all changes on its website. These changes will become effective three (3) days after they are posted. Your continued use of the Services after any change to these Terms will constitute your acceptance of such change.
By signing below or electronically acknowledging acceptance of these Terms, the undersigned represents and warrants he/she is an authorized representative with all necessary power and authority to bind Client to these Terms.