Fee-for-Service Terms and Conditions
Cal Poly Corporation (CPC) is the Agent for the Fee-for-Service Unit (FFS)
Standard Terms and Conditions
1. Ordering: Clients may order services as identified in the FFS Order and Services Agreement (“Order”) for the prices indicated in that Order. Upon Client’s acceptance authorizing the work and the associated fees identified in the Order, Client accepts the Standard Terms and Conditions and, when applicable, the Addendum For Testing Services. The CPC accepts the Order and Services Agreement when the Agreement is accepted (signed) by Client and the FFS Director (or authorized designee) agrees to perform the identified services. Once an Order is authorized, no additional fees shall be charged to the Client in relation to that Order without Client’s prior written approval.
2. Change Orders: The Client, by written notice, may request additions or changes to an Order. In such case, the Client will remain responsible for all work performed up until the time FFS was officially notified of the change. Such changes must be confirmed in a revised Order accompanied by Client’s written request of the change. Any services in progress at the time of the requested change will be billed on a prorated basis, as determined by CPC.
3. Suspending or Stopping FFS’s Performance: The Client, by written notice, may direct FFS to suspend a portion or all of the work to be performed. In such case, the Client will remain responsible for all work performed up until the time FFS was officially notified to discontinue the services. Any services in progress at the time of discontinuation will be billed on a prorated basis, as determined by CPC.
4. Confidentiality: If necessary to procure these services, Client may disclose confidential information to FFS. Confidential Information may only be used by FFS for the purpose of providing the services identified in the Order. Confidential Information may be disclosed to the employees, agents, and financial or legal advisors of FFS and CPC only on a “need to know” basis, if such persons are subject to obligations of confidentiality and restricted use substantially identical to the terms specified in these terms and conditions. Information will be deemed as Confidential Information and governed by the obligations of nondisclosure and restricted use set forth in these terms and conditions, if it: (1) is clearly and conspicuously marked as "confidential" or "proprietary" by the Client at the time of initial disclosure; (2) is transmitted via electronic or hard copy cover letter or memorandum indicating that the contents are "confidential" or "proprietary;" (3) orally identified as confidential at the time of disclosure and then subsequently summarized in written form in a clearly and conspicuously marked document and submitted to FFS within ten (10) days of the initial disclosure; or (4) reasonably should be considered confidential due to the nature of the information and circumstances of disclosure. FFS and CPC have no obligation with respect to any information which: (A) was lawfully known by FFS before receipt of it from the Client; (B) is or becomes generally known to the public through no wrongful act or omission of FFS; (C) is rightfully provided to FFS by a third party, without restriction on disclosure or use; (D) is independently developed by personnel of FFS/CPC, without breach of the obligations of confidentiality set forth in this Agreement; (E) is explicitly approved for release by written authorization of the Client, but only to the extent of and subject to such conditions as may be imposed in such written authorization; or (F) is made available by the Client to a third party, without restriction concerning use or disclosure and not in violation of any confidentiality agreement. If the information provided to FFS by Client is to be considered a trade secret, Client must inform FFS at the time information is provided. Information kept by FFS that is not considered a trade secret may be subject to the California Public Records Act. FFS may publish announcements or summaries containing non-confidential information about this project in campus newsletters and annual report and other published documents on campus.
5. Use of Names: The name of FFS, the California Polytechnic State University (“Cal Poly”), and the Cal Poly Corporation or any symbols and indicia of these are not to be used by or on behalf of Clients under any circumstances for any purpose whatsoever, including but not limited to use in advertising to the general public or in any publicity material or in any other manner without Cal Poly’s prior written approval. Except for newsletters and other campus reports, CPC will not use the Client’s name nor the names of its employees in any publicity without Client’s prior written approval.
6. Warranties: Client understands that FFS performs services only as specified by Client in the Order and Services Agreement accepted by FFS. FFS does not make any express or implied warranties or guarantees of any kind to the Client. By their very nature, technical services, testing, analysis and other FFS services are limited to expected measurement variability. FFS represents that the Services shall be performed within the limits agreed with Client, and in a manner consistent with the level of care and skill ordinarily exercised by other providers of similar services under similar circumstances. Client and FFS agree that by performing services hereunder, FFS does not assume, shorten, cancel or undertake to discharge any duty or responsibility of Client to any other party or parties. No one other than Client shall have any right to rely on any Report or other representation or conduct of FFS, and FFS disclaims any obligations of any nature whatsoever with respect to such person.
7. Ownership of Data: Upon full payment to FFS for all services provided by FFS, data or information generated by FFS for the Client shall become the Client’s property. Data or information provided to FFS by the Client shall remain the Client’s property. FFS will retain exclusive ownership of any and all analytical methods, Quality Assurance/Quality Control protocols, and equipment developed by FFS for performance of work by FFS. FFS Reports are for the exclusive use of the Client to whom they are addressed.
8. Export Regulation: Cal Poly is a public educational entity, with extensive teaching and research functions and activities. Cal Poly students, faculty, and staff come from a diverse set of backgrounds and nationalities. It is the intent of the Parties to remain fully compliant at all times with all U.S. export control regulations, including but not limited to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and embargo sanctions under the Office of Foreign Assets Control (OFAC). Therefore, in the event that either Party to this Agreement wishes to provide export-controlled data or other export-controlled information to the other party under this Agreement, such party must first notify the other in writing and in advance of providing such information in order to allow the receiving party to determine if they can accept such information or if they are required to seek a license or authorization from the appropriate agency. The parties agree to cooperate and work in good faith to seek any license or authorization that may be required to transmit any export-controlled data or information under this Agreement. The appropriate Cal Poly contact for export control may be reached at firstname.lastname@example.org.
9. Indemnification: Client and FFS agree, in consideration of FFS under-taking to perform the ordered service(s), to protect, defend, indemnify, hold harmless the other party from any and all claims, damages, expenses, either direct or consequential for injuries to persons or property arising out of or in consequence of the performance of the services hereunder unless caused by the sole negligence of the other party.
10. Insurance: FFS is neither an insurer nor a guarantor. CPC maintains insurance coverage for its employees to perform professional services. If Client seeks greater protection than is provided by CPC insurance, Client should obtain appropriate protection from suppliers or insurers.
11. Limitation of Liability: If FFS should be found liable for any losses or damages attributable to the services hereunder in any respect, its liability shall in no event exceed the amount of the fee paid by Client for such services and Client’s sole remedy at law or in equity shall be the right to recover up to such amount.
12. Force Majeure: Whenever performance by either party is delayed or prevented by an extraordinary event beyond the control of Client or FFS, such delay or prevention shall be excused and the time of performance extended for the duration of the causative factor. In no event shall the occurrence of any such conditions terminate the Client’s obligations hereunder if services have been performed by FFS.
13. Governing Law: This Agreement shall be governed in accordance with the laws of the State of California.
14. Payment of Invoices: The fee payable hereunder to FFS by Client is based upon the value of services to be rendered and such sums are not related to the value of any property belonging to Client or to others. Client agrees to pay all invoices within 30 days of date issued. In the event that payment is not received within 30 days of invoice date, Client agrees to pay a late payment charge on the unpaid balance equal to 2% per month or the maximum charge allowed by law whichever is less, and all costs and expenses, including attorney’s fees where recovery of the same is not prohibited by law, incurred by FFS in collecting such invoices.
15. Conflicting Terms:. FFS hereby rejects any conflicting terms contained in any order or acceptance submitted by Client.
Standard Terms and Conditions, Addendum for Testing Services
16. Samples: When applicable, if samples are provided for testing, Clients must provide, together with the submission of their samples, adequate instructions describing the type of analysis requested (completed “Chain of Custody” forms) and complete a thorough written disclosure of the known or suspected presence of any hazardous substances. Hazardous substances are those defined as such by local, state and/or federal law. For the safety of FFS personnel, Client must advise FFS prior to shipping if samples are known or suspected to contain hazardous substances including human/animal materials. Safety Data Sheets must be provided if available. Clients shall be liable and shall pay all costs and damages to FFS or any third party resulting from a Client’s failure to appropriately disclose to FFS that a sample contained or was suspected to contain a hazardous substance, a Client’s failure to comply with any local, state or federal law regarding the sample, or any action on the part of the Client that interrupts FFS’s ability to process work, contaminates FFS’s instruments or work areas or necessitates any clean-up or recovery on the part of FFS.
17. Sample Delivery Acceptance: When applicable, Sample Delivery Acceptance is defined as the point in time after which FFS has received and inspected the samples and received project guidance regarding the work to be done and resolved any discrepancies in the Chain of Custody Forms and made a determination that it can provide the services listed in the Order and Services Agreement. FFS reserves the right to refuse or reject Sample Delivery Acceptance for any sample that it deems to be: (i) of unsuitable volume or quality; or (ii) a health, safety, environmental or other risk.
18. Client understands that FFS performs testing services only as specified by Client in the Order accepted by FFS. FFS does not design, warrant, supervise or monitor compliance of products or services except as specifically agreed by FFS. By their very nature, testing, analysis and other FFS services are limited to expected measurement variability.
19. Results: Test results are not indicative or representative of the qualities of the lot from which the sample was taken or of apparently identical or similar products, unless the FFS report on results includes such a representation.
20. Reports: FFS Reports apply only to the standards or procedures identified therein and to the sample(s) tested or inspections made.
21. Unless Client makes arrangements for timely pre-paid return, samples or portions thereof, samples not destroyed in testing will be disposed of at FFS’s option within thirty (30) days of completion of testing.
22. Client shall be responsible for procuring at its cost insurance protecting the value of its property and samples.
23. Risk of Loss: Except where FFS provides courier services, the entire risk of loss or damage to samples remains with the Client. The Client will be responsible and FFS will not have any responsibility for the action or inaction of any Client or carrier shipping or delivering any sample to or from FFS’s premises. As set forth in Section 15 above, regarding Samples, the Client is responsible for determining whether or not the sample Client is shipping to FFS contains a hazardous substance as defined by law and for taking all actions necessary to ensure the sample Client ships is packaged, labeled, transported and delivered properly and in accordance with all local, state and federal laws.
24. When applicable, Client understands that certain tests are hazardous and agrees that FFS and CPC neither assume nor accept any responsibility for any injury or damage to property or personnel that may occur during, or as a result of, tests, wherever performed, whether performed in whole or in part by or on behalf of FFS or by Client, whether or not any equipment, facilities, or personnel for or in connection with said tests is furnished by or on behalf of FFS or by Client.