ANALYTICAL SERVICES
STANDARD TERMS & CONDITIONS

All analytical services provided by WBA Analytical Laboratories, Inc. (“WBAAL”) are subject to the terms and conditions stated herein. As our client, you (“Client”) understand and agree that submission of a Sample Submission Form (“SSF”) or substitute to WBAAL constitutes acceptance of the terms and conditions as stated herein. To the extent that any Client order contains any terms or conditions that vary from the terms and conditions stated herein, all such additional or varying terms and conditions shall be of no force or effect and shall not be part of the Client/WBAAL relationship or contract, even if WBAAL performs the service requested.

CONFIDENTIALITY: Confidentiality is maintained by WBAAL in all interactions with Clients. Each party shall protect Information of the other party, using the same degree of care, but no less than a reasonable degree of care, as such party uses to protect its own confidential information. Each party shall disclose the other's Information only to its employees or contractors who have a need to know and are bound by obligations of confidentiality.  Mutual nondisclosure agreements will be executed upon request. The Client agrees it will not use WBAAL’s name or data (or the name or data of any Tyson Foods entity) in any manner which might cause harm to WBAAL’s (or Tyson Foods’) reputation and/or business. Under no circumstances is the name of WBAAL (or of any of its Tyson Foods affiliates) to be published, either alone or in association with that of any other party, without prior written approval.

SAMPLE SUBMISSION AND RETENTION: Samples should be submitted to WBAAL with a completed SSF and shipped to WBAAL in accordance with the instructions on the SSF. Chemistry samples will be held for two (2) weeks from the date of the final report, and microbiology samples will be held for one (1) week from the date of the final report, except (1) where samples have been used for testing and fully consumed; (2) where micro samples are destroyed upon completion of testing; (3) where suspect samples have been autoclaved; (4) where samples are returned early at the request of the Client; (5) where storage for the stated amount of time will compromise the integrity of the sample; or (6) where circumstances exist that prevent samples from being held for the stated amount of time. The Client shall reimburse WBAAL for the cost of returning samples.

RETEST ANALYSES: Retests performed at the Client’s request may be charged to the Client if the retest confirms the original result. If the retest results are significantly different from the original result, the Client will not be charged for the retest.

HAZARDOUS SUBSTANCES AND PATHOGENS: Any package containing a sample containing or suspected of containing a pathogen or hazardous substance must be clearly identified as such and communicated to WBAAL prior to shipping. WBAAL reserves the right to refuse any shipment or sample that may pose a risk to its team members. The Client shall bear all extraordinary costs for adequate disposal of hazardous waste resulting from the sample(s) submitted, whether or not described as hazardous waste.

BILLING: All fees are charged directly to the Client as indicated under Invoice Information on the SSF, unless a third party acceptable to our credit department has been authorized via a signed statement indicating payment responsibility. It is assumed that the paperwork submitted with a sample describes the testing desired. If changes are made to the work order or to the party responsible for payment after the originally requested testing is initiated or completed, the Client must accept payment responsibility. Please notify WBAAL immediately if changes in testing are necessary.

PAYMENT TERMS: Prepayment or credit approval is required to establish a new account. Payment terms are net 15 days of invoice date. A 1½ % per month late charge may be added to all unpaid balances. Delinquent accounts may be served on a C.O.D. basis.  All prices are subject to change without notice.

LITIGATION ASSISTANCE: If Client information is subpoenaed in response to any court of law or regulatory body having jurisdiction, WBAAL will make best efforts to notify the Client in advance of such subpoena deadline and allow Client to take appropriate steps to protect its information. All costs associated with litigation or dispute, including copying and submission of all documents subpoenaed, for oral or written testimony or preparation of same, or for any other purpose related to work provided by WBAAL in connection with the analyses/reports performed/completed for the Client, shall be paid by the Client. Such costs include, but are not limited to, hourly charges, travel, accommodations, mileage, counsel and all other expenses associated with said litigation or dispute.

WARRANTY AND LIMITS OF LIABILITY: WBAAL warrants that all services will be performed in a timely manner by competent personnel. THIS EXPRESS WARRANTY IS EXCLUSIVE AND IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. WE DISCLAIM ANY OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING A WARRANTY OF FITNESS FOR PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY. Any services performed by WBAAL which are reasonably determined by Client to have been performed improperly in light of the above warranty, and which after investigation by WBAAL are acknowledged in writing by WBAAL’s Vice President to have been performed improperly, shall be corrected by WBAAL without charge to Client, provided that Client provides WBAAL with a written request for such correction within two (2) months after Client knew or should reasonably have known of the problem. In no event will WBAAL (including its parent and affiliates, i.e., all entities owned, controlled, or under common control with, Tyson Foods, Inc. (collectively, “Tyson Foods”)) be liable for any indirect, consequential, incidental, punitive, or special damages or for acts of negligence that are unintentional in nature, including, without limitation, damages for lost profit, business interruption, or other pecuniary loss, regardless of whether WBAAL has been advised of the possibility of such damages. Client further understands and agrees that WBAAL’s total liability (including any liability of Tyson Foods) for damages relating to, or arising in connection with, any services provided hereunder, regardless of the form of action or theory of recovery shall not exceed the greater of $2,500 or the amount paid by the Client for the particular analytical service. WBAAL and Tyson Foods accept no legal responsibility for the purpose for which the Client uses the test results or reports, or for any consequence of such use. Client agrees to indemnify and defend WBAAL and Tyson Foods from all claims, damages, liabilities, and expenses relating to Client’s use of WBAAL’s services or Client’s marketing, distribution, sale, or other dissemination of Client’s products or services. The allocations of liability in this WARRANTY AND LIMITS OF LIABILITY section represent the agreed and bargained-for understanding between the Client and WBAAL. WBAAL’s fees for the services provided hereunder reflect such allocations.

Choice of Law and Venue. These terms and conditions shall be interpreted pursuant to the laws of the State of Arkansas without giving effect to its choice of law provisions. Litigation brought to contest disputes arising under this purchase order shall be brought only in the state or federal courts of the State of Arkansas.

  1. Waiver of Jury Trial. WBAAL AND CLIENT IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO WBAAL SERVICE TO CLIENT, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY. 

INTELLECTUAL PROPERTY: WBAAL operates under “need to know” principles within its organization to further protect its clients’ information. WBAAL reserves the right to decline service to a client if the nature of the work presents a potential conflict of interest with other work either currently underway or previously completed for another party. WBAAL also operates under the principle that the outcome of its work is owned by the receiving client unless previously agreed to in writing between the parties.

FORCE MAJEURE: Neither party shall be liable for damages due to delay or failure to perform any obligation under this Agreement to the extent such delay or failure results directly or indirectly from circumstances beyond the control of such party. Such circumstances shall include, but shall not be limited to, acts of God, acts of war, civil commotions, riots, strikes, lockouts, acts of the government in either its sovereign or contractual capacity, perturbation in telecommunications transmissions, inability to obtain suitable equipment or components, accident, fire, water damages, flood, earthquake, or other natural catastrophe.

WAIVERS: No waiver of a breach, failure of any condition or any right or remedy in or granted under these Terms and Conditions will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless the writing so specifies.

SEVERABILITY: Any provision of this Agreement that in any way contravenes the law of any state or country in which this Agreement is effective will, in that state or country, to the extent the law is contravened, be considered separable and inapplicable and will not affect any other provision or provisions of this Agreement.

RELATIONSHIP OF THE PARTIES: WBAAL and Client agree that WBAAL is an independent contractor to Client and will not act as Client’s employee, agent, representative or sponsor under the terms and conditions stated herein.

SUCESSORS & ASSIGNS: This Agreement will inure to the benefit of, and be binding on, the successors and assigns of WBAAL and the Client.

PARAGRAPH HEADINGS: All paragraph headings are for convenience only and shall not be construed as a limitation of the scope of the particular sections to which they refer.

ENTIRE AGREEMENT: These Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the agreement between the parties and supersede all prior and contemporaneous understandings or agreements of the parties. No party is relying on any representation or warranty outside those expressly set forth in this Agreement.

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