MEMBER TERMS AND CONDITIONS (v1.2)
Agreement
1. By sending in your sample, you indicate that you agree to Alden’s membership terms and conditions (“Terms and Conditions”), which is a binding agreement between you, as the member (referred to as “Member”, “you” or “your”), and Alden (referred to as “Company”, “Alden”, “we”, “us”, or “our”). Member recognizes the existence of an order or contract pertaining to the subject matter hereof, including but not limited to providing samples to Company and/or performance of any service by Company for your benefit or on your behalf shall constitute acceptance by you of this Agreement and all of its terms and conditions.
2. This Agreement represents the entire agreement between you and Company and supersedes all prior negotiations and agreements with respect to the subject matter hereof. This Agreement may be amended only by a written agreement signed by an authorized representative from each party hereto; provided, however, that no order shall be accepted by Company which includes any conditions that vary from the below described Standard Terms and Conditions, and Company hereby rejects any conflicting terms contained in any acceptance or order submitted by Member.
3. The Services and/or this Agreement may be terminated by either party at will. If the Services and/or this Agreement is terminated by either party for any reason, Company shall be paid in full for all Services that have been fully or partially performed through the termination date, and you shall be provided with a report of any Services conducted prior to termination.
4. This Agreement is governed by the laws of the State of Missouri. The parties agree that the exclusive venue for any dispute between the parties under this Agreement shall be the state or federal courts located in Kansas City, Missouri and the parties agree to submit to the personal jurisdiction in such courts.
Purpose of the Service, Dock, Store and Application
1. Alden (“Company”) operates a service for its members, who have established an account and whose account is in good standing, to access the Alden store for purchase or utilization of laboratory and related services for food and environmental diagnostic testing and information, which they order, request and access using the Alden application.
2. Company provides objective third party laboratory analytical services, including data collection, analysis and interpretation, and other food testing related laboratory services (the “Lab Services”) to you, the Member, subject solely to the terms and conditions stated herein. Any services other than the Lab Services provided by Company to you are also subject solely to the terms and conditions stated herein, and such services and the Lab Services are collectively referred to as the “Services”. The terms and conditions stated herein (this “Agreement”) shall control in the event of any conflict with any other written document.
3. Company shall only be obligated to perform those Services for which it has accepted an order submitted by Member.
4. Company will provide the Member with a Dock that will include the material needed to collect samples, package the samples for pickup, and store samples at an ambient temperature. The dock is property of the Company and is provided to the Member for the purpose of Alden carrying out services. The equipment and material in the dock is exclusively intended for use in Alden’s services. Use of equipment and/or material in the dock, not intended for Alden’s services, will result in a fee charged for any used equipment or material.
5. Company’s e-commerce store offers access to the testing services and products offered by Alden. Member is responsible for ordering the products and services required to meet their needs. Member will receive results and reports for the product or service ordered for the specific purpose or sample ID.
6. Company will provide a portal application for the Member to access the e-commerce store, chain of custody, test results and other data management tools. Any information or data in the portal is furnished by Company and is solely for your benefit and your authorized representatives. Any information or data provided to you by Company shall not be reproduced, except in full; and you shall not at any time misrepresent the content of any information or data received from or relating to Company or its work and/or Services on your behalf.
7. To the extent that you engage Company to perform Services, such Services shall be described in the ordering process in Alden’s e-commerce store. It is necessary for us to assume that the order detail submitted with a sample approves the AOAC testing protocol to be used. You are responsible for determining whether the testing protocol ordered by you complies with any and all applicable federal, state and local laws, rules and regulations governing your business and/or products; and you agree to hold Company harmless from and against any demand, claim, cause of action, judgment, liability, damage, cost or expense (including attorney’s fees) suffered by you, Company or any third party arising from or related to Company’s performance of the testing protocol requested. Company only uses methods that are approved by AOAC, but makes no representation or warranty that the testing protocol requested by client is effective and/or suitable for the purpose for which the tests will be performed.
8. Alden’s services, dock, store and app are provided to you “As Is, As Available” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, we, on our own behalf and on behalf of our affiliates and our respective licensors and service providers, expressly disclaim all warranties, whether express, implied statutory or otherwise, with respect to the services, store or app, including, but not limited to all warranties of merchantability, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, we provide no warranty and make no representation of any kind that the services, dock, store or app will meet your requirements or achieve any intended results. Alden has the option to replace services, dock equipment or material, and store products at its discretion.
9. Without limiting the foregoing, neither we nor any of our providers, partners, or affiliates make any representation or warranty of any kind, express or implied: (I) As to the operation or availability of the service, dock, store or app, or the information, content include thereon; (II) That the services, store or app will be uninterrupted or error-free; (III) As to the accuracy, reliability, or currency of any information or content provided through the site; or (IV) That the service, store or app, our (and our service providers) servers, the content, or communications sent from or on behalf of use are free of viruses, scripts, worms, malware, or other harmful components.
Order Process and Result Reporting
1. Upon timely delivery of samples to the laboratory, Company will use commercially reasonable efforts in meeting ordered turnaround time. The risk of loss or damage to the sample will be assumed by Company at the time possession of the sample is picked up by an employee of Company; however, Company’s sole responsibility in the event of such loss or damage shall be to re-collect and process a substitute sample. Company will advise you of samples which are missing or received in damaged, contaminated, or improperly preserved condition for the Member to instruct action. Company reserves the right to refuse to accept any sample, which in the judgment of Company is likely to pose any unreasonable risk in handling and/or analysis.
2. Company will perform the Lab Services consistent with its laboratory quality assurance standard operating procedures. It shall be your exclusive responsibility to confirm that Company’s standard practices will meet your needs prior to placing an order. If you desire an alternative to these standard practices, such request must be made in writing and agreed to in writing by Company prior to sample acceptance.
3. All of the Services will be performed by employees of Company, Company affiliates or contracted personnel retained by Company or Company affiliate(s) on a temporary and/or part-time basis. Company or Company affiliate(s) (as applicable) will be solely responsible for the negligent acts, errors and omissions of their respective employees, agents, representatives, subcontractors and any other person performing Services under this Agreement.
4. After the analytical results have been reported, samples are routinely retained in our storage facilities for approximately 5 days, after which the samples may be destroyed. Prior arrangements must be made by the Member if samples are to be held for longer periods or returned to you.
5. Company shall submit reports of the Services performed indicating results of testing. You understand and agree that samples that are tested and reported by Company are representative of the sample received by you and may not be indicative of the entire manufactured batch and/or lot. Such results are intended for use by persons having professional skill and training in the interpretation of such results. Company assumes no responsibility, and you hereby waive all claims against Company, for interpretation of such results. Unless otherwise required by law, Company shall provide its report only to those persons or entities specifically designated in writing by you or your authorized representatives. Any report of results furnished by Company is furnished solely for your benefit and your authorized representatives. Any report or data provided to you by Company shall not be reproduced, except in full; and you shall not at any time misrepresent the content of any report of other information received from or relating to Company or its work and/or Services on your behalf. Company takes no responsibility for client’s regulatory compliance and reporting.
6. Any action taken by you based on results designated by Alden as “preliminary” or “verbal” or “partial” or “presumptive” are at your own risk. To the extent practicable, you agree to give notice to Company prior to initiating a recall of any product based on the final test results provided to you by Company. However, any decision to recall or withdraw product based on final test results is your sole responsibility, and you acknowledge and agree that you accept sole responsibility for and agree to hold Company harmless from any claims (whether direct or from third parties) or liabilities arising from a product recall, including any product recall or withdrawal based on tests performed by Company, to the extent permitted by law.
7. Company retains digital copies of reports and data. Member will be provided with digital copies of reports and data through the portal application. Company does not provide any hard copies of reports and data.
Confidentiality and Intellectual Property
1. Either party (“Disclosing Party”) has or may disclose confidential information to the other party (“Receiving Party”). Confidential information means any proprietary and/or non-public materials, data, reports, plans, records, technical and other information. Company agrees to maintain in confidence all of your confidential information and to use such confidential information only for the purpose of performing analyses of samples and providing reports on our findings to you. You likewise agree to maintain in strict confidence, and not to disclose or use any confidential information belonging to Company that is learned or obtained by reason of this Agreement or the performance of the Services. Confidential information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Receiving Party establishes by documentary evidence, was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) Receiving Party establishes by documentary evidence, was or is independently developed by Receiving Party without using any confidential information. Each party shall protect the other party’s confidential information by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the confidential information as the party uses to protect its own confidential information of a like nature. You agree not to use Company’s name and/or any data or report provided by Company in any manner which might cause harm to Company’s reputation and/or business, including without limitation any misrepresentation of the content of such reports. Except as expressly provided under this Agreement, under no circumstances is the name of Company, or any name, symbol, trademark, or service mark presently or later established by Company, to be published or used by you either alone or in association with that of any other party, without the prior written approval of Company.
2. In any instance where your confidential information is subpoenaed or must be released to a government agency, or is otherwise required to be disclosed pursuant to law or regulation, Company will be permitted to release such confidential information and, to the extent permitted by law, you will be promptly notified prior to the release of the information. You agree to reimburse Company for any reasonable costs and expenses (including attorneys’ fees, if any) incurred by Company in complying with any such subpoena or other request for information or testimony (written or oral) which can be evidenced by written documentation.
3. Ownership of all intellectual property and other rights in the service, dock, store and application, including, but not limited to, the software, design, layout, content, links, and the like shall remain with Alden. All content is protected by copyright and is owned by Alden. We reserve all rights not specifically granted in this Agreement.
* Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part by any means. None of the content for our services, dock, store, or application may be retransmitted without our express written consent.
Billing and Payment
1. All fees are charged or billed directly to you via invoice for Services completed by Company.
2. The billing of a third party will not be accepted without a statement, signed by the third party, which acknowledges and accepts payment responsibility. Billing of a third party will not relieve you of payment responsibility and liability in the event the third party defaults in payment for Services rendered.
3. Any deviation in payment terms must be agreed to in writing. If you cancel a Service after testing commences, you shall be responsible for all fees and expenses in respect of such Service. All fees and expenses are charged and payable only in US($) dollars, unless otherwise agreed by the parties.
4. Company has the right to ask for payment in advance, or cease all Services, if the established payment terms are not adhered to. If you default in payment for Services rendered, you are responsible for reasonable collection and/or legal fees incurred by Company to enforce the payment obligations under this Agreement. Company further reserves the right to hold reports..
Limitation of Liability
* Company warrants that it will perform the Lab Services consistent with its laboratory quality assurance standard operating procedures. Company warrants that it will perform the requested test, for the sample as submitted, and will either (i) follow all procedures consistent with a validated method per ISO 17025, CLIA, or CAP and the manufacturer of the testing kits, or (ii) if directed by you, follow the specific procedures specified by you. The parties recognize that it is possible for a test kit to produce an inaccurate results even if all procedures are properly followed, and therefore Company does not warrant that the test kits will produce accurate results when all procedures are properly followed. The foregoing express limited warranty is exclusive and is given in lieu of all other warranties, expressed or implied.
* To the fullest extent permitted by applicable law, in no event will we or our affiliates, or any of our respective licensors or service providers, have any liability arising from or related to your use or inability to use Alden’s services, store, dock, application or result reports for:
* Personal injury, property or product damage, lost profits, cost of substitute goods or services, loss or corruption of data, loss of goodwill, business interruption or disruption, computer failure or malfunction, or any other consequential, incidental, indirect, exemplary, special or punitive damages.
* Any action you take based on the data or information you receive from or through Alden’s services or app.
* Your failure to keep your password or account details secure and confidential.
* The cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the services.
* The improper authorization for the services by someone claiming such authority; statements or conduct of any third party on the services.
* Direct damages in amounts that in the aggregate exceed the greater of the amount actually paid by the member for the services.
* We do not guarantee the continuous, uninterrupted or secure access to the application or the services, or any related services. The operation of services, store, dock, or the application may be interfered with by numerous factors outside of our control.
* Under no circumstances shall we be liable for any damages that result from the use of or inability to use the portal application, including but not limited to reliance by the member on any information obtained from the site or that result from mistakes, omissions, interruptions, deletion or files or e-mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of universe, communications failure, theft, destruction, or unauthorized access to our records, programs, or services.
* With respect to any and all Services, Company and its affiliates disclaim all warranty, express or implied, including any warranty or fitness for a particular purpose or of merchantability. There are no representations or guarantees under this agreement, or in any other agreement or communication, concerning services, or the quality, accuracy, or fitness of the services.
* In no event shall Company be liable for indirect, special, incidental or consequential damages including (but not limited to) damages for loss of profit or goodwill regardless of (A) the effort (either sole or concurrent) of Company and/or (B) whether company has been informed of the possibility of such damages.
* Except for payment of amounts due, neither party will be liable for any delay, failure in performance, loss or damage due to causes beyond such party’s reasonable control, such as fire; flood; lightning; earthquakes; power failures or blackouts; severe weather; explosions; wars or armed conflicts; national, state or local emergencies; governmental authority or action; epidemics; pandemics; civil disobedience; shortage of labor or materials; labor disputes; strikes, or other concerted acts of workers; embargoes; acts of God; acts of terrorism, or acts of vandalism or acts otherwise known as “Force Majeure”.
* You agree to defend, indemnify and hold Company and its officers, directors, employees and shareholders from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (“Liabilities”) incurred by Company as a result of any claim, demand, action or lawsuit asserted against Company arising out of or relating to your negligent acts and omissions, or arising out of any violation of your obligations set forth in this Agreement.
* Company’s total liability to you in connection with the Services for any and all injuries, losses, expenses, demands, claims or damages whatsoever arising out of or in any way related to such Services, from any cause or causes, shall not exceed an amount equal to the lesser of (a) damages suffered by you as the direct result thereof, or (b) the total amount paid by you or owing by you for the Services provided under the specific scope of work or sample submission form submitted by you, out of which the damages arose. We accept no legal responsibility for the purposes for which you use the Lab Services test results. Nothing herein shall be construed as a recommendation for use or distribution of the samples or products tested. Results contained in any report relate only to the items tested and described in any report.