The following terms and conditions apply to all services performed by SOMNIO GLOBAL LLC, doing business as Xperiential Laboratory and Material Testing (“XPE”), unless specifically exempted in writing signed by a duly-authorized officer of XPE.
1. The customer (“Customer”) acknowledges that by requesting and ordering analytical laboratory and/or testing services from XPE it is transacting business with XPE at its principal place of business at 45145 W.12 Mile Road Novi, MI 48377.
2. This document is an offer for services (“Offer”), which together with the terms and conditions set forth or referred to in any quote or description of work issued by XPE in writing and attached to this Offer, constitute the entire agreement for services between XPE and Customer with respect to the subject thereof (the “Agreement”). XPE may withdraw its Offer at any time prior to Customer’s acceptance of this Agreement. Unless otherwise indicated, XPE’s Offer expires thirty (30) days from the date of issuance. Customer’s placement of an order for services in response to this Offer constitutes Customer’s acceptance of this Agreement as offered by XPS. Customer’s acceptance is expressly limited to the specifications, prices, and other terms stated in the Offer, including these “Offer for Services - Terms and Conditions.” Any different, additional or conflicting terms or conditions of any purchase order, specification or other document issued by Customer either before or after issuance of this Offer are expressly objected to and rejected by XPE and shall not be binding upon XPE absent XPE’s express written agreement specifically referencing such different, additional or conflicting terms or conditions. XPE hereby rejects all terms and conditions set forth under any prime or other contract to which Customer is a party.
3. Customer agrees to pay XPE the prices set forth in this Agreement within thirty (30) days from the date of invoice by XPE.
4. XPE provides services to its customers on a fee-for-service basis. All services will be performed under this Agreement with due care in accordance with XPE’s procedures and applicable government regulations. XPE performs services and therefore its work and reports are not governed by the Uniform Commercial Code (UCC). Except as expressly stated in this Offer, XPE hereby disclaims all warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose or use, safety and noninfringement. XPE will have no liability incidental, special, indirect, punitive or consequential damages of any nature whatsoever, whether in contract, tort, or any other theory of liability
5. Customer acknowledges that test results are not necessarily indicative of the characteristics of any other sample from the same or other lots, and XPE assumes no responsibility for any purpose which a customer chooses to use test results, irrespective of whether XPE has been informed of such purpose or use. XPE will not be liable under any circumstances for any amount in excess of the cost of the services performed.
6. Customer’s only remedy for any breach of the Agreement will be to require XPE to repeat the services or to be credited for fees paid for the relevant services performed.
7. XPE will provide a written report of its findings (“XPE Report”), subject to the following limitations and restrictions:
7.1. Customer will indemnify and hold harmless XPE, Somnio Global LLC, its officers, employees, agents, and subcontractors for any claim arising out of or relating to any unclear, erroneous, incomplete, misleading or false information provided to XPE or any incorrect or defective materials or samples provided to XPE.
7.2. Customer will not disclose any XPE Report to a third party without XPE’s prior written consent, unless required by law or court order and subject to the following terms:
7.2.1. The XPE Report has been commissioned by Customer on the Offer for Services - Terms and Conditions contained herein;
7.2.2. All rights, including copyrights and moral rights, in and to the XPE Report and all information and data contained in it, with the exception of information provided by Customer, are owned by XPE, and Customer agrees to, and does hereby, assign all such rights to XPE;
7.2.3. The XPE Report has been prepared at the request of Customer. Customer only may disclose the XPE Report to a third party for the purpose for which it requested and the XPE Report was prepared, and XPE shall not have any liability (including, without limitation, liability for negligence) to any third party to which Customer discloses the XPE Report. Any disclosure to a third party must be of the whole XPE Report;
7.2.4. While XPE will exercise due care to ensure the information contained in its Report is accurate, neither XPE, nor any of its officers, employees or agents make any representations or warranties, express or implied, as to the accuracy of the information contained in the Report except as expressly stated herein, and XPE accepts no responsibility arising in respect to the information contained in the XPE Report for errors or omissions (including responsibility to any person by reason of negligence); and
7.2.6. XPE reserves to right to review, update or supplement any XPE Report, and any changes, information, or modification will be provided subject to the terms herein.
7.3. Customer acknowledges and agrees that any action, inaction, or decision of Customer following receipt of the XPE Report will be solely determined by Customer and neither XPE nor its officers, employees, agents, or subcontractors will be liable for any action, inaction, or decision of Customer in response to or based on any XPE Report.
7.4. XPE is an independent testing laboratory and does not directly or indirectly endorse any product to be tested by XPE. Customer agrees and will not in any way imply that the test results or XPE Report is an endorsement of any product tested.
8. Samples (with the exception of bacteriological samples, which will not be stored for any period) will be destroyed thirty (30) days after the date of the final XPE Report, unless Customer and XPE agree otherwise in writing and Customer prepays before the expiration of the thirty (30) day period the entire cost of any storing, packaging and shipping of the sample(s) by XPE. XPE will have no obligation to retain its reports and related data following delivery to Customer. Where XPE is performing the Offer as a sub-contracted party, samples will not be retained for any period unless Customer and XPE agree otherwise in writing and Customer prepays the entire costs of any storing, packaging and shipping of the sample(s).
9. To the extent that there is confidential information that is to be exchanged between XPE and Customer, the parties will enter into a mutually agreeable written non-disclosure agreement and such agreement shall govern the disclosure and use of such confidential information.
10. As XPE is an independent testing laboratory and is reporting on material characteristics and not providing any conclusions or opinions, Customer shall not identify XPE or individuals associated with XPE as an expert witness in any manner absent an express writing by Customer and XPE.
11. The relationship of the parties established under this Agreement is that of independent contractors and neither party is or shall be considered a partner, employee, agent or joint venture of or with the other. Customer agrees that nothing in this Agreement precludes XPE from providing the same or similar services for any third parties.
12. Any invention or intellectual property made, authored, discovered, conceived or reduced to practice by XPE in the performance of this Agreement or that is derived from or based on its use of information supplied by Customer that is not otherwise subject to a confidentiality agreement between the parties, is and will be owned by XPE, and customer agrees , and does hereby, assign all such rights to XPE and Customer shall execute such documents necessary to perfect XPE’s title thereto. Customer agrees that it will not seek or obtain any grant, option, license or other right to or under any patent, trade secrets or other intellectual property rights now or hereafter held by XPE.
13. XPE expressly reserves the right to subcontract all or part of this Agreement without the consent of Customer.
14. The laws of the State of Michigan will govern this Agreement, notwithstanding conflict of laws and the federal and state court in the State of Michigan will have exclusive jurisdiction over all disputes and controversies arising out of or relating to the subject matter of this Agreement.
Xperiential, a brand of Somnio Global LLC │ 45145 West Twelve Mile Road · Novi · MI · 48377 │
Version Date: August 2015, Copyright 2015 Somnio Global LLC