Terms and Conditions

General

The words "we", "us", and "our" refer to Fruit Growers Laboratory, Inc. or Fruit Growers Laboratory Inc., doing business as FGL Environmental. "You" are our client. Our agreement with you is comprised of the Standard Terms, the accompanying cover sheet, written proposal or confirmation of services, our pricing documents, and one or more Chain of Custodies prepared by you and accepted by us. You will relinquish samples to us for analysis, accompanied by a signed Chain of Custody defining the scope and timing of our work.

Our General Responsibilities

1. We agree to provide the professional services described in this agreement. We will provide you with written reports containing analytical results produced in conformance with agreed upon testing criteria. In performing our services, we will use that degree of care and skill ordinarily exercised under similar circumstances by reputable members of our profession practicing in the same locality.
2. Tests and observations will be conducted using appropriate test procedures and laboratory protocols. If yo direct the manner of making tests that varies from our standard or recommended procedures, you agree to hold us harmless from all claims, damages, and expenses arising out of your direction.
3. We will designate in writing a representative who will be authorized to make and communicate decisions relating to your Chain of Custody.
4. All information regarding our services for you or any information that we receive from you, except for information that is in the public domain and except as we are required by law will be held in confidence. We agree to comply with more restrictive and confidentiality requirements, provided that we are compensated for additional costs.

Your General Responsibilities

1. On each Chain of Custody you will designate a representative who has authority to transmit instructions, receive information, make decisions relative to our work.
2. Unless prohibited by Contract between you and your client, you will provide additional existing information we request which may be necessary for our satisfactory performance under each Chain of Custody. If you are unable to provide information that we need, we may terminate this Agreement or our work as to any Chain of Custody.
3. You will respond in a reasonable time to our request for decisions, authorization for changes, additional compensation or schedule extensions.

Reports and Records

1. We will furnish up to two copies of each report to you. We will retain analytical data for five years and financial data for three years relating to the services performed following transmittal of our final report.
2. All samples remaining after tests are conducted and contaminated field and laboratory equipment that cannot be adequately cleansed of hazardous materials will remain your property. They will be disposed of or returned to you, at our discretion, unless within ten days of the report date you give written direction to transfer the materials or have them stored at your expense.
3. Our reports, notes, calculations, and other documents are instruments of our service to you. We agree to provide our reports for your use only for the purposes disclosed to us at the time of contracting. Upon your written request, we will provide endorsements to others or letters of reliance, but only if those others agree in writing to be bound by the conditions of our agreement including these Standard Terms in full and only if we are paid the administrative fee set forth in our then current Schedule of Charges.
4. If you do not pay for our services as agreed, you agree that we may retain all reports and work not yet delivered to you. You also agree that all reports and other work in your possession will be returned to us upon demand, and our work will not be used by you for any purpose whatsoever until it is paid for in full.

Delivery and Acceptance of Samples

1. Until we accept delivery of samples by notation on chain of custody documents or otherwise in writing accept the samples, you are responsible for loss of or damage to samples. Until so accepted, we have no responsibility as to samples.
2. As to any work that involves a holding time of less than seven days, you will deliver a request for services to us at least seven days prior to delivery of samples. We will accept or refuse the request within two days thereafter. The request for service shall specify the date of delivery of the samples and if the samples are not delivered on that date, we may refuse them or we may charge a special handling fee.
3. As to any samples that are suspected of containing hazardous substances or radioactive material, you will specify the suspected or known substances and the levels and type of radioactive activity. This information shall be given to us in writing as a part of the request for services and shall precede radioactive samples and shall precede or accompany samples suspected of containing hazardous substances.
4. You agree to accept the return of all hazardous and/or radioactive samples that are not compatible with our normal waste streams. Samples having the following characteristics will be returned to you:

   - Greater than 10% acid or base
   - 2 nanocuries per gram of gross radioactivity (alpha, beta, gamma)
   - PCB's 50 ppm or greater
   - Dioxins, furans and precursors thereof at any detectable level.

5. If we revoke acceptance of any sample, you will immediately have it properly removed from our facility.
6. Regardless of a prior acceptance, we may refuse or return samples if we determine that the samples present a risk to health, safety, or the environment, or that we are not authorized to accept them.

Changes to Chain of Custody

1. No persons other than the designated representatives for each Chain of Custody are authorized to act regarding changes to a Chain of Custody.
2. We will notify you in writing within three business days from the date we identify any activity that we regard as a change to the terms and conditions of a Chain of Custody. The notice shall state, on the basis of the most accurate information available to us, all of the following:
   1. The date, nature, circumstance, and cause of the activity regarded as a change.
   2. The name, function, activity of your employee or other individual, involved in or knowledgeable of such activity.
   3. The identification of documents and the substance of oral communications involved in such action.
   4. The particular elements of project performance for which we may seek an equitable adjustment, including:
   1. Those portions of the Chain of Custody which we believe will be affected by the proposed change; and
   2. The estimated adjustment to the Chain of Custody with respect to estimated cost or fee, delivery of performance schedule, and other provisions affected by the change.
3. You will respond to the notice provided for in paragraph 6.2 within three business days. Changes may be made to a Chain of Custody through issuance of an amendment to a Chain of Custody. The amendment will specify the reason for the change and, as appropriate, include any modified budgets, schedules, scope of work, and other necessary provisions. The amended Chain of Custody will become part of this Agreement upon signing by you and us.
4. Until agreement is reached concerning the proposed change, we may regard the situation as a suspension directed by you.

Compensation

1. There is a minimum charge for all work done by FGL.
2. Our pricing for the work is predicated upon your acceptance of the conditions and allocations of risks and responsibilities described in this Agreement. You agree to pay for services as stated in our proposal and accepted by you or according to our current standard pricing documents if there is no other written agreement as to price. An estimate or statement of probable cost is not a firm figure unless stated as such.
3. Until such time as a credit standing is established with FGL, payment will be made when sample/s are dropped off at the laboratory. If samples are to be picked up by an FGL employee, payment, which will include the pick up charge, will be settled at the time of pick up.
4. A new customer may establish a credit standing (net 30 days) with FGL upon completion and verification of the information on our credit application. Until credit standing is established with FGL, payment will be made when sample/s are picked up or dropped off at the laboratory.
5. You agree to pay invoices on receipt unless you notify us in writing of a particular item that is alleged to be incorrect within 15 days from receipt of the invoice. You agree to pay uncontested invoices on receipt and you agree to pay interest on unpaid balances beginning 30 days after invoice date at the rate of 1.5% per month, but not to exceed the maximum rate allowed by law.
6. If you direct us to invoice another, we will do so, but you agree to be responsible for our compensation until you provide us with that third party's written acceptance of all terms of our Agreement and until we agree to extend credit to that person. Unless our written acceptance of a billing substitution is given prior to our acceptance of samples, you agree to be responsible for our compensation even if the third party is subsequently accepted by us.
7. You agree to compensate us for our services and our normally reimbursable expenses if we are required to respond to legal process related to our services for you. Compensable services include hourly charges for all personnel involved in the response and attorney fees reasonably incurred in obtaining advice concerning the response, the preparation of the testifier, and appearances related to the legal process.
8. If we are delayed by, or the period of performance is materially extended because of, factors beyond our control, or if project conditions or the scope or amount of work change, or if the standards or methods of testing change, we will give you timely notice of the change and we will receive an equitable adjustment of our compensation.

Risk Allocation, Disputes, and Damages

1. Many risks affect us by virtue of entering into this Agreement to provide services. For you to obtain the benefit of a fee which includes a reasonable allowance for dealing with our liability, you agree that our aggregate liability for our negligent acts and omissions and for our non-intentional breach will not exceed the fee paid for our services or 25% of contract, whichever is greater, and you agree to indemnify us from all liabilities to others in excess of that amount. The limitation does not apply to losses arising from our gross negligence or intentional breaches of contract.
2. Neither we nor you will be liable to the other for special, incidental, consequential, or penal losses or damages, including but not limited to those arising from delay, loss of use, loss of profits or revenue, or the cost of capital.
3. We will not be liable to you for damages unless suit is commenced within two years of the date of injury or loss or within two years of the date of the completion of our services, whichever is earlier. In no event will we be liable to you unless you have notified us of the discovery of the claimed negligent act, error, omission or breach within 30 days of the date of its discovery and unless you have given us any opportunity to investigate and to recommend ways of mitigating your damages.
4. In the event you fail to pay us within 60 days following the invoice date, we may consider the default a total breach of our Agreement and we may, at our option, terminate all of our duties without liability to you or to others.
5. If it is claimed that we did not complete an acceptable analysis, at our request you will request further review and acceptance of the completed work by the governing regulatory agency and use your best efforts to obtain that acceptance. We will assist you at our cost.
6. Subject to the overall limitation of liability provided for in this Agreement, if we have failed to meet an established holding time through our negligence or non-intentional breach, we will be responsible for the costs of resampling and reanalysis, but not exceeding set limits. We will have no other liability to you or to others arising out of the missed holding time, and you agree to hold us harmless from the claims of others arising out of the missed holding time.
7. You and we agree that disputes will be submitted to "Alternative Dispute Resolution" (ADR) as a condition precedent to litigation and other remedies provided by law. Each of us agrees to exercise good faith efforts to resolve disputes through mediation unless we both agree upon another ADR procedure. All disputes shall be governed by the law of the place where our services are rendered, or, if our services are rendered in more than one state, you and we agree that the law of the place that services were first rendered will govern.
8. If either of us makes a claim against the other as to issues arising out of the performance of this Agreement, the prevailing party shall be entitled to recover its reasonable expenses of litigation, including reasonable attorneys' fees. If we bring a lawsuit against you to collect our invoiced fees and expenses, you agree to pay our reasonable collection expenses including attorney fees of 33 percent of the amount recovered

Indemnities

1. We will indemnify and hold you harmless from and against demands, damages, and expenses caused by our negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom we are legally responsible. You will indemnify and hold us harmless from and against demands, damages, and expenses caused by your negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom you are legally responsible.
2. To the extent that may be necessary to indemnify either of us under Article, you and we expressly waive, in favor of the other only, any immunity or exemption from liability that exists under any worker compensation law.

Miscellaneous Provisions

1. This Agreement constitutes the entire agreement between you and us, and it supersedes all prior agreements. Any term, condition, prior course of dealing, course of performance, usage of trade, understanding, purchase order conditions, or other agreement purporting to modify, vary, supplement, or explain any provision of this agreement is of no effect until placed in writing and signed by both parties subsequent to the date of this Agreement. In no event will the printed terms or conditions stated in a purchase or work order, other than an FGL Chain of Custody be considered a part of this Agreement, even if the document is signed by both of us.
2. Neither party will assign this Agreement without the express written approval of the other, but we may subcontract laboratory procedures as we deem necessary to meet our obligations to you.
3. If any of the provisions of this Agreement are held to be invalid or unenforceable in any respect, the remaining terms shall be in full effect and the Agreement shall be construed as if the invalid or unenforceable matters were never included in it. No waiver of any default shall be a waiver of any future default
4. Neither you or we shall have any liability for nonperformance caused in whole or in part by causes beyond our reasonable control. Such causes include but are not limited to Acts of God, civil unrest and war, labor unrest and strikes, equipment failures of subcontractors that could not be reasonable anticipated.
5. This Agreement may be terminated in writing by either party by seven days written notice. We shall be compensated for services rendered and expenses incurred in termination that cannot reasonably be avoided. You may stop our work by giving a written suspension directive, but once work has been suspended, we need not resume work until we agree to a change in scope, schedule, and compensation. Upon suspension or termination, we will use reasonable care to preserve samples provided that you agree to compensate us for any additional effort, but we shall have no responsibility for meeting holding time limitations after the effective time of a suspension or termination directive.