GENERAL TERMS AND CONDITIONS OF SERVICE
1. Area of Application
1.1 When an order is placed with Environmental Pollution Laboratory (Pty) Ltd (hereafter EPL), a contract with the Terms and Conditions set out below comes into effect and deemed as specifically agreed to. These Terms and Conditions supersede and replace any verbal or written agreement (except for any agreed variation under clause 20) on purchase orders, memoranda, or clauses in any other documents between the parties.
1.2 Any commitment purported to have been entered into on behalf of EPL by one of its employees or similar is only valid if accompanied by a written signed confirmation from an authorised signatory of EPL. However, an order placed with EPL is considered as accepted by EPL when EPL proceeds to fulfil that order, without need for any written or verbal confirmation from EPL.
1.3 The information provided in the price lists, website and any other documents prepared by EPL are only for illustrative purposes and does not commit EPL in any way, who reserves the right to modify such information at any time.
2. Placement of Order
2.1 The customer’s order will only be valid if sent by e-mail or fax on headed paper of the customer or by using an approved EPL Sample Request Sheet. The customer is responsible for ensuring that orders given by telephone are confirmed by the customer by e-mail or fax immediately after placement by telephone. Orders placed by telephone will be governed by these Terms and Conditions whether or not the customer submits such written confirmation. Also, if the customer sends samples to EPL quoting the customer reference, EPL is entitled to treat this as the customer placing an order and the customer will be bound by these Terms and Conditions on acceptance of such an order by EPL.
2.2 If the customer places any orders with EPL, the commercial aspects of the order not specifically set out in these Terms and Conditions (including, but not limited to price, estimated turnaround times and delivery date) must be agreed at the time of the order and the commercial terms agreed in relation to any initial order will not automatically apply to additional or subsequent orders. Each order is to be treated as a separate contract between EPL and the customer and will be invoiced separately.
3. Prices and Terms of Payment
3.1 EPL’s prices do not include the statutory value-added tax, which is shown separately on the invoice at the statutory amount on the date of invoicing. EPL may revise prices quoted at any time.
3.2 EPL reserves the right to increase the prices appropriately for unforeseen cost increases and in accordance with real price increases of raw materials etc., should it occur after the agreement is signed or should the amount of work exceed the original estimate. Should the aforesaid incur, EPL will document such increases for the customer.
3.3 Unless otherwise agreed by EPL in its acceptance of any order, payment of all invoices is due strictly within 30 days of the invoice date.
3.4 Unless otherwise agreed, any invoice, which remains outstanding 30 days after the invoice date, may be liable to interest as per the prescribed mora interest rate as on the date of default, calculated daily from date of default until date the payment is effected (whether before or after judgement).
4. Sampling, Sample Delivery and Analysis Request
4.1 The customer is solely responsible for sampling and the proper delivery of samples to EPL for testing.
4.2 Before performing any work, EPL shall examine and review client’s analysis request, which shall outline the scope and timing of work to be performed. If such request is incomplete or unclear, EPL shall consult with client before proceeding with the work. Client shall provide such additional information requested by EPL as may be necessary for the satisfactory performance of the work covered by each analysis request.
4.3 EPL is entitled to reject samples or materials and to terminate the signed agreement for good cause or to interrupt it for an appropriate time period, if the samples, the sampling conditions or the materials do not meet the necessary requirements and/or risk assessment.
4.4 It will be deemed that the Consultant/Agent/Employee representing the client who delivers samples and who completes and signs EPL’s Chain of Custody Sheet (hereinafter COC) or provide a Sample Request Sheet is duly authorised by the client to do so. Should any dispute arise regarding the Consultant/Agent/Employee’s aforesaid authority, the said Consultant/Agent/Employee who signed the COC or provided the Sample Request Sheet will then be held liable for the said Invoice in his/her personal capacity.
5. Property Rights on Sample Material and Sample Storage
Samples accepted by EPL shall remain the property of client while in the custody of EPL. EPL shall retain samples for a period of thirty (30) days following the date of submission of its report to client. EPL shall extend the retention period if client so requests and agrees to pay for additional storage. Following the retention period, EPL will dispose of most samples upon client request. EPL reserves the right to charge for disposal of samples it considers difficult to handle or, at the option of EPL, to return samples to client in lieu of disposal. All such samples returned shall be accepted by client.
6. Delivery Dates, Turnaround Time
6.1 Delivery dates and turnaround times are estimates and are provided to the customer for information only. Time for delivery dates and turnaround time is not of the essence. Without prejudice to this, EPL will use reasonable efforts to meet agreed upon delivery dates and turnaround times.
6.2 Analysis results are often despatched to the customer by e-mail or fax. It is the responsibility of the customer to inform EPL in writing before the results are despatched if this is not acceptable or if the client wishes to receive the results only by mail or by any other alternative means.
7. Reports and Records.
Unless otherwise agreed by EPL in writing, client shall use reports prepared by EPL only for the purposes disclosed to EPL at the time of contracting. EPL shall maintain records and supporting documents for work for a period of five (5) years after completion of said work. EPL shall be the owner of all such documents; provided, however, that copies may be supplied to client upon request.
8. Limited Warranties and Responsibilities
8.1 EPL shall perform its work in accordance with the current state of technology and within the accepted standard operating procedures. The customer is aware of and acknowledges that analytical methods may not always yield 100% exact and/or relevant results. Analytical methods are subject, inter alia, to the method’s uncertainty (generally described in the official test method in terms of repeatability and reproducibility), to the method’s suitability to the matrix/product at hand or rarely to human error or instrumental malfunction, that may not always be picked up by the laboratory’s quality assurance programs.
8.2 In respect to the economical/commercial importance of the analysis and the potential consequences of a faulty result, it is thus the customers responsibility to check the plausibility and validity of results and, if appropriate, to request retesting, possibly with a different confirmatory method. Interpretations are based on analysis results and on information provided by the customer, therefore if the customer wishes to rely on the interpretation the customer shall do so at its own risk.
8.3 EPL shall furnish all supervision, labour, facilities, equipment, and materials necessary or desirable to perform its work. If the client directs a manner of making tests that varies from the standard or recommended procedures, EPL will not be liable to any claims, damages and/or expenses arising out of such direction. Such variations shall be noted on analysis requests.
8.4 Each analytical report relates exclusively to the sample received by EPL, as specified in the written acceptance of order by EPL. EPL accepts no responsibility for the way the sample was collected, stored or delivered to EPL.
9. Limit of Liability
9.1 EPL shall not be liable for any incidental or consequential damages of any kind arising out of the negligence of any party, but for its own employees.
9.2 The aggregate liability of EPL for its negligent acts and omissions and for its non-intentional breach of the agreement with client shall not exceed the fee paid to EPL for its services, and client agrees to indemnify EPL from all liabilities to others in excess of that amount.
9.3 EPL can only be held liable for proven damages in connection with analyses if these damages are directly due to EPL’s wilful intent or gross negligence.
9.4 In any event EPL’s liability is limited to the compensation of the direct and immediate damage caused by EPL’s negligent actions or omissions in connection with the performance of the agreement.
10. Repeated Analysis
10.1 If the customer raises an objection to a test result reported by EPL, then EPL shall review the result. EPL is also entitled to have the review conducted by third parties. Should the result objected to be corroborated, the customer shall bear the costs of the repeat testing and/or review. Otherwise, the test result will be corrected free of charge.
10.2 A repeat test can only be performed if the conditions of the samples or goods to be tested make such retesting possible.
10.3 Objections to the test result are allowed within a period of two (2) weeks, counting from the time the result is received by the customer.
11. Duty of Confidentiality
EPL shall not provide analytical results or information on the client’s work to any party other than client, unless client, in writing, requests information to be provided to a third party or disclosure by EPL is required by law.
12. Force Majeure
12.1 EPL shall not be liable to the customer for any delays in performance or any non-performance of its obligations as a result of causes beyond its control (which for the avoidance of doubt shall include, but not be limited to, vis major, strike, lock-out, government order, non-availability of equipment or parts, power or other utilities failures, war, riots or public disturbances, acts of terror, unforeseen logistical issues, load shedding etc.) and also if any of the aforesaid affect EPL’s suppliers or subcontractors.
12.2 Under the aforesaid circumstances EPL will be entitled to postpone the service by notice to the Client (if possible and within the required holding times) by the duration of the obstacle plus an appropriate start-up period or to withdraw from the agreement entirely or in part with regard to the still not performed portion.
13. Attorneys’ Fees.
Should EPL be required to appoint an Attorney and/or Legal Counsel to take legal action or to collect or recover any monies for unpaid Invoices, Fees, Expenses and/or Damages from client, that the client specifically agree to pay the appointed Attorney’s Costs on an Attorneys-and-Client basis, including pre-litigation costs, which costs are calculated and debited according to the prescribed High Court tariff in terms or Rule 70 of the Rules Board for Courts of Law Act, 1985, as amended from time-to-time, plus a double surcharge.
14. Consent to Credit & Related Searches.
The Client hereby consents to EPL and/or its Legal Representatives to do Credit, Company, Director and/or any related Searches on its juristic and natural persons and affiliated enterprises, subject to the Protection of Personal Information Act 4 of 2013.
15. Surety.
Should the client be a juristic entity and should the client request any form of credit facility for the supply of goods or services by EPL, then all the listed Directors of the entity agree to bind themselves in their personal capacity as Surety(ies) and co-principal Debtor/s in solidum with the client in favour of EPL for the due payment by the client of all amounts which may become payable by the client to EPL. Whereby these Terms & Conditions will then also apply mutatis mutandis to the listed Directors in their personal capacity.
16. Response to Legal Process.
Client shall compensate EPL for its services and expenses should EPL be required to respond to legal process related to its services for client, such as but not limited to testifying or presenting Expert Evidence as an Expert Witness or furnishing a Scientific Legal Report. Compensable services shall include hourly charges for all EPL personnel involved in the response and attorneys’ fees debited as per paragraph 13 above in obtaining legal advice concerning the response, the preparation of the witness(es) and appearances related to the legal process.
17. Consent in terms of the POPIA.
The Client hereby consents as required under Section 11(1)(a) of the Protection of Personal Information Act 4 of 2013 (POPIA) that EPL and its staff and appointed agents will have access to the Client’s personal details which have been furnished to EPL by the Client and/or any of its agents for the purpose of any order placed with EPL by Client and/or its agent. The Client further consents to receive Newsletters and/or other useful information from EPL in future.
18. Update of Details.
The Client is responsible to notify EPL of any changes of details above within 14 days of such changes have occurred by supplementing the above Application Form. The Client takes responsibility for any costs and/or damages incurred by EPL for failure to update its details above.
19. Disclaimer and Miscellaneous
These Terms and Conditions may be amended by EPL from time to time by either sending the amended Terms and Conditions directly to the customer or by publishing the amended Terms and Conditions at www.epl.co.za, which amened Terms and Conditions shall apply to all orders placed after the customer is deemed to have received the amended Terms and Conditions or after being published at www.epl.co.za (which for these purposes shall be deemed to be five (5) days after being send or published). No other amendments or variations shall be valid unless signed by an authorised signatory of EPL.
20. Entire Agreement; Governing Law.
Unless amended by a written agreement signed by client and EPL, these terms and conditions shall constitute the entire agreement between the parties as to the matters herein addressed, any prior course of dealing or trade custom notwithstanding. The agreement between EPL and client shall be governed by South African law.
21. Validity and Limitations.
Should any provision of these terms and conditions be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of these terms and conditions is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.