Professional Testing Services Agreement

PROFESSIONAL TESTING SERVICES AGREEMENT

This Professional Testing Services Agreement ("Agreement") is made and entered into as of Effective Date: by and between Client Name: and Service Provider Name: .

RECITALS

WHEREAS, Client requires professional testing services relating to materials, components, products, or systems described in Exhibit A and Provider represents that it possesses the personnel, equipment, facilities and technical expertise necessary to perform such testing;

WHEREAS, Provider will perform testing, analysis and reporting in accordance with agreed specifications, acceptance criteria and applicable industry standards; and

WHEREAS, the parties desire to set forth the terms and conditions governing Provider's performance of such testing services and Client's payment for the same.

NOW, THEREFORE

In consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. DEFINITIONS

"Services" means the testing, sampling, analysis, inspection, consultation and related activities described in Exhibit A and any agreed change orders or statements of work.

"Deliverables" means Provider's written reports, test data, certificates, electronic files and conclusions produced and delivered to Client under this Agreement.

2. SCOPE OF SERVICES

Provider will perform the Services set forth in Exhibit A in a professional and workmanlike manner consistent with applicable industry standards. Services will include sampling, chain-of-custody procedures, laboratory analysis, statistical evaluation and preparation of Deliverables as specified.

3. DELIVERABLES AND ACCEPTANCE

Provider will deliver the Deliverables specified in Exhibit A by the delivery dates set forth therein. Deliverables will include a written report describing test methods used, raw data, calculations, observations and an executive summary of findings.

Client shall have thirty (30) days from receipt of a Deliverable to provide written notice of any non-conformance. If Client fails to provide timely notice, the Deliverable will be deemed accepted. If non-conformance is reasonably demonstrated, Provider shall promptly re-perform or correct the deficient Services at Provider's expense.

4. FEES, INVOICING AND PAYMENT

Client shall pay Provider the fees and expenses set forth in Exhibit B. Fees are due within thirty (30) days of Provider's invoice unless otherwise stated in Exhibit B. Undisputed amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.

5. TERM AND TERMINATION

This Agreement commences on the Effective Date and continues until completion of the Services unless earlier terminated as provided herein. Either party may terminate for cause if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice. Client may terminate for convenience upon sixty (60) days' prior written notice; in such event Client shall pay Provider for all Services performed and expenses incurred through the effective date of termination plus reasonable close-out costs.

6. CONFIDENTIALITY

Each party ("Receiving Party") shall maintain in confidence Confidential Information disclosed by the other party ("Disclosing Party") and shall not disclose such Confidential Information to third parties except as permitted by this Agreement. Confidential Information excludes information that: (a) is or becomes publicly known through no breach by the Receiving Party; (b) is rightfully received from a third party without restriction; (c) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information; or (d) is required to be disclosed by law, provided the Receiving Party gives prompt notice and cooperates to seek protective treatment.

Receiving Party shall use Confidential Information solely for purposes of performing or receiving the Services and shall restrict access to employees and permitted subcontractors who have a need to know and who are bound to confidentiality obligations at least as protective as those herein.

7. INTELLECTUAL PROPERTY

All pre-existing intellectual property and proprietary materials of each party remain that party's sole property ("Background IP"). Provider retains ownership of any Background IP embodied in or used to produce the Deliverables. Subject to full payment of all amounts due under this Agreement, Provider grants Client a non-exclusive, perpetual, worldwide, royalty-free license to use the Deliverables for Client's internal business purposes.

If the parties agree that any Deliverable is to be assigned to Client, such assignment must be set forth in a separate written schedule signed by both parties and accompanied by full payment of consideration stated therein.

8. WARRANTIES; DISCLAIMER

Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Provider's sole obligation and Client's exclusive remedy for breach of this warranty shall be re-performance of the non-conforming Services or a refund of the fees paid for the affected Services, at Provider's option.

EXCEPT FOR THE EXPRESS WARRANTY ABOVE, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

10. INDEMNIFICATION

Provider shall indemnify, defend and hold harmless Client from and against third-party claims arising out of Provider's gross negligence or willful misconduct in the performance of the Services. Client shall indemnify, defend and hold harmless Provider from and against third-party claims arising out of Client's misuse of the Deliverables, Client-supplied materials, or Client's breach of this Agreement.

11. INSURANCE

Provider shall maintain worker's compensation insurance as required by law and commercial general liability and professional liability insurance in amounts sufficient to cover its obligations hereunder. Provider's required limits:

12. SUBCONTRACTING

Provider may engage qualified subcontractors to perform portions of the Services provided Provider remains responsible for the subcontracted work and ensures subcontractors are bound by confidentiality and performance obligations substantially similar to those in this Agreement.

13. COMPLIANCE WITH LAW

Each party shall comply with all applicable laws, regulations and codes in the performance of its obligations under this Agreement. Provider shall obtain and maintain any permits or licenses necessary to perform the Services.

14. NOTICES

All notices required or permitted hereunder shall be in writing and delivered by hand, recognized courier service, or certified mail, return receipt requested, to the addresses set forth below or to such other address as either party may designate by notice to the other. Notice is effective upon receipt.

15. AMENDMENT; WAIVER; COUNTERPARTS

No amendment or modification of this Agreement will be effective unless made in writing and signed by both parties. No failure or delay by either party in exercising any right will operate as a waiver of that right. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

16. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

This Agreement will be governed by and construed in accordance with the laws of the state or jurisdiction selected by the parties:

This Agreement, including all exhibits and statements of work expressly incorporated herein, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, representations and understandings. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will continue in full force and effect.

17. MISCELLANEOUS PROVISIONS

If either party is prevented from performing any obligation due to events beyond its reasonable control (including acts of God, government action, labor disputes, or supply shortages), performance will be suspended to the extent and for the duration of such event. The parties agree to cooperate to minimize the effect of force majeure and resume performance promptly.

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