Terms and Conditions
These Terms of Service (“Terms”) apply to orders for services (“Services”) provided by Covalent Metrology Services Inc. By ordering and using the Services, you agree to the Terms on behalf of yourself and any company or entity you are representing or acting on behalf of (we will call you and your company the “Client” in these Terms). These Terms form a binding agreement between the Client and Covalent Metrology Services Inc. (which will be called “Covalent” in these Terms) and supersede and prevail over any purchase order, written confirmation or other terms proposed by Client. Any purchase, written confirmation or other terms proposed by Client are hereby expressly rejected. The parties shall also be referred to as a “Party” or together as the “Parties.”
1. Scope of Services. Covalent performs analysis and testing services (the “Services”) only as specified by Client. Reports, data or other deliverables issued by Covalent are for informational purposes only and are not intended for use as certification, qualification or calibration of any product or service. Client acknowledges the following:
- Client assumes all risks associated with the reports, data or deliverables provided under these Terms, including but not limited to, any product, service, design, material or component developed, manufactured, sold or distributed by Client, whether or not based on the Services, reports, data or other deliverables.
- Covalent makes no expressed or implied representation, warranty or compliance of any nature regarding the Service or any report, data or deliverable. Nothing contained in any report, data or deliverable issued by Covalent shall be deemed to imply or mean that Covalent conducts any quality-control program for the Client to whom the report is issued.
- Covalent is not responsible for and does not warrant any design, manufacture or compliance of any product, service, material or component based on the Services or any report, data or other deliverable issued by Covalent.
2. Quotes for Services. The Services will be confirmed in the quote we provide to Client (“Quote”), which may include the details of the Services that we will provide, pricing, and turnaround time for reports and data (collectively, the “Deliverables”). Any Quote is valid for ten (10) business days from the date issued and shall supersede and prevail over any purchase order, written confirmation or other document issued by Client; any terms of any purchase order, written confirmation or other document that conflict with the Quote or Terms are expressly rejected. If Client requests any change in the scope of the Services covered by a Quote, it shall do so in writing by requesting a change order (“Change Order”). Covalent reserves the right to accept, reject or propose different or additional terms for such Change Order. No Change Order shall be binding on the parties unless accepted by both parties in writing.
In addition, if the assumptions that are the basis for the Quote are not correct or there are complications or developments that materially increase the amount of time required so that the Deliverables exceed the time originally anticipated, then Covalent has the right to suspend the Services and requote the Services. If the new quote is not accepted, Covalent has a right to cease work and Services on the project and charge the full amount of the original quote.
3. Services are Non-Exclusive. The Services are provided on a non-exclusive basis. As an independent contract laboratory, Covalent reserves the right and discretion to perform analysis work and Services similar to those for Client for any other entity, unless a written mutual agreement is in place that restricts such other work by Covalent. Covalent further reserves the right to subcontract all or a portion of the Services to other laboratories or other third parties.
4. Client Obligations. Clients are responsible for providing the following information and materials (collectively, “Client-Provided Materials”) for Covalent to provide the Services:
- Samples to be tested;
- All information necessary to complete work provided by Client, including as applicable: sites to be observed, detailed instructions regarding measurement and/or sample preparation, and such other information requested by Covalent to provide the Services; and
- All necessary documentation, packaging, and instruction for handling Hazardous Materials, including Materials Safety Data Sheets, if relevant. “Hazardous Materials” shall mean any substance or material that has been determined by any state, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property, including all of those materials and substances designated or defined as “hazardous” or “toxic” by any applicable law, rule, regulation or order.
The failure of Client to provide the Client-Provided Materials may result in the delay of completing the Services. Client represents and warrants it has all necessary rights to provide the Client-Provided Materials to Covalent for purposes of providing the Services, including using, reproducing, and testing the Client-Provided Materials and that Covalent’s use of the Client‑Provided Materials will not infringe or violate any person or entity’s IP Rights (as that term is defined in Section 7 below), privacy, publicity or other rights, or violate any law, rule, regulation or order, or contain any Hazardous Materials, unless specifically disclosed in Materials Safety Data sheets.
Client is responsible for following all safety, security, and other rules of Covalent if present at a Covalent testing facility, for the protection of Covalent property from Client employees or contactors at a Covalent testing facility, and for the use and handling of Client-Provided Materials. Client assumes all responsibilities for work done at Covalent facilities by Client.
5. Storage, Disposal, and Return of Client-Provided Materials. Client grants Covalent the right to store Client-Provided Materials during the period of the Services and for two (2) weeks after completion of the Services by issuance of a report by Covalent related to the Client Provided Materials (“Project Period”). After such period, Covalent shall have the right to dispose of or destroy the Client-Provided Materials in its sole discretion, without further obligation or liability to Client, unless Client notifies Covalent prior to the end of Project Period that it wishes to recover the Client-Provided Materials, and makes all necessary arrangements at its sole cost and risk to retrieve the Client-Provided Materials. Any costs of safely disposing of large or hazardous samples shall be billed to and paid for by Client. Client agrees that Covalent shall have no liability or responsibility for any loss, damage or theft of Client-Provided Materials while in the possession of Covalent.
6. Indemnification. Client shall indemnify Covalent and its owners, officers, directors, employees, agents, and representatives from any and all liabilities, losses, damages, claims, lawsuits, and expenses (including attorneys’ fees, court costs, and amounts paid in settlement) that arise out of or relate to Covalent’s use of the Client-Provided Materials, Client’s breach of these Terms or the negligence or willful misconduct of Client; provided, however, that Client shall not be liable for any damages, losses, costs or expenses to the extent attributable to the negligence or willful misconduct of Covalent.
7. Intellectual Property Rights. Covalent owns and retains all right, title, and interest, including all copyright, patent, trade secret, trademark, and other proprietary rights (“IP Rights”), in 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 that are developed, conceived or reduced to practice outside of the performance of Services for Client and all modifications or improvements thereto (“Covalent Background IP”).
Client hereby acknowledges and agrees that any and all IP Rights that are developed, conceived or reduced to practice by Covalent in the performance of the Services and that is (i) within the field of or derived from the Covalent Background IP or (ii) does not rely on or incorporate any specifically Client-Provided Materials or Client Proprietary Information (“Covalent Developed IP”), is not part of the Deliverables and shall vest in and be the sole and exclusive property of, Covalent.
No license is granted to Covalent Background IP or Covalent Developed IP by these Terms.
Provided Client has complied with these Terms and paid all required fees, Client owns all rights, title, and interest in the Deliverables, provided that Covalent shall have a non-exclusive, perpetual right to retain and use a copy of such Deliverables for its internal business, recordkeeping, and archival purposes.
Client acknowledges and permits Covalent to collect and use generalized knowledge and data derived from the Services (“Resultant Data”) provided to improve its Services and products, including development of AI or machine learning enhancements to customer service or operations so long as such Resultant Data is used on an aggregate or deidentified basis or does not include any specifically identifiable Client Confidential Information.
8. Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Covalent includes without limitation non-public information regarding features, functionality, and performance of the Services and the Covalent Background IP and Covalent Developed IP. Proprietary Information of Client includes non-public information in the Client-Provided Materials. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person (except to employees or subcontractors with a need to know) any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law. At any time upon the written request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy, with such destruction certified in writing, any and all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession, together with all notes, analysis, drawings, documents, designs, product samples, prototypes, and other tangible manifestations of the Confidential Information, including any copies and reproductions thereof. The Receiving Party may retain one (1) copy of the Confidential Information solely for legal and compliance purposes and any electronic back-up copies maintained in the ordinary course of business.
9. Payment. Client will be invoiced for the fees specified in the Quote upon completion of the Services, provided that Covalent reserves the right to request payment prior to initiating the Services. All invoices are due net 10 days of invoice. Any past due invoices shall accrue interest at the rate of 1.5% per month or the maximum amount allowed by law, whichever is lower. Client can pay for Services by credit card by providing such credit card information to Covalent and Client authorizes Covalent to charge that credit card the amount of fees specified in the Quote. Client is responsible for shipping and handling costs for any materials or Deliverables, and any other project-specific cost such as special disposal costs, tooling, fixture design, and purchases of consumables, if not already included in the Quote. Client is responsible for all expenses associated with Covalent’s collection of fees, including attorneys’ fees and court costs.
10. Disclaimers. Covalent disclaims any express or implied warranties, including any warranty regarding the timeliness, accuracy or completeness of the Services or Deliverables, the Services or Deliverables can be relied upon for any compliance, design or manufacture of any product or service, or any implied warranties of fitness for a particular purpose, merchantability or non-infringement. Client assumes all risk in relying upon the Services and the Deliverables.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL COVALENT BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COVALENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COVALENT’S AGGREGATE LIABILITY UNDER THESE TERMS AND FOR THE SERVICES SHALL NOT EXCEED THE FEES PAID FOR SUCH SERVICES. THE DISCLAIMERS AND LIMITATIONS IN SECTIONS 1, 10 AND 11 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY, AND SO THESE PROVISIONS MAY NOT APPLY IN CLIENTS IN SUCH JURISDICTIONS.
12. Termination and Suspension of Services. Covalent reserves the right to terminate or suspend any Services or Quote at any time in its sole discretion. Covalent may also terminate or suspend Services and withhold any Deliverables if Client breaches these Terms or fails to make payment when due. Sections 5 through 14 and any indemnification obligations or claims for amounts due from Client shall survive terminations.
13. General Provisions.
13.1 Force Majeure. Notwithstanding anything else in these Terms, no default, delay or failure to perform on the part of either party will be considered a breach of these Terms if such default, delay or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, pandemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters or default of a common carrier.
13.2 Governing Law and Jurisdiction. These Terms will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles. Each party hereby irrevocably submits to the jurisdiction of the state and federal courts in Santa Clara County, State of California with regard to any dispute arising out of or relating to the Terms or the Services. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
13.3 Time Limitations on Claims. Client is barred from bringing any claim relating to or arising out of the Services or these Terms more than one (1) year after such claim accrued.
13.4 Independent Contractors. The relationship of the Parties established by these Terms is that of independent contractors, and nothing contained in these Terms will be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
13.5 Binding Effect. These Terms will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
13.6 Amendments. No modification of, or amendment to, these Terms will be effective unless the same shall be in writing and signed by an authorized representative of both parties.
13.7 Partial Invalidity. If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.
13.8 No Waiver. No waiver of any term or condition of these Terms will be valid or binding upon either Party unless the same will have been mutually assented to in writing by an officer of both parties. The failure of either party to enforce at any time any of the provisions of these Terms, or the failure to require at any time performance by the other party of any of the provisions of these Terms, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
13.9 Construction. The titles and section headings used in these Terms are for ease of reference only and shall not be used in the interpretation or construction of these Terms. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.”
13.10 Entire Agreement. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the parties with respect to such subject matter.
13.11 Assignment. Client shall not assign or delegate these Terms or any of its licenses, rights or duties under these Terms (whether by merger, sale of assets, sale of equity or otherwise) without the prior written consent of Covalent, and any purported assignment shall be void and of no force or effect. Covalent may freely assign or delegate these Terms or any of its licenses, rights or duties hereunder or subcontract the Services at Covalent’s sole discretion.
13.12 Notices. Client agrees to accept any notices and communications required under these Terms at the email address provided in the Client’s account. All such notices shall be deemed delivered upon the date sent by Covalent. Any notices to Covalent shall be sent to the following address:
Covalent Metrology Services
927 Thompson Pl
Sunnyvale, CA 94085