TERMS AND CONDITIONS – XRF ANALYSIS SERVICES
1. Analysis Requests
Before performing any work, CP Minerals and Minerals Trading CC. ("CP Minerals") 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, CP Minerals shall consult with client before proceeding with the work. Client shall provide such additional information requested by CP Minerals as may be necessary for the satisfactory performance of the work covered by each analysis request.
2. Responsibilities of CP Minerals
CP Minerals shall perform its work in accordance with accepted standards within the industry and accepted standard operating procedures and within the limits of the available equipment. However CP Minerals reserves the right to modify methods as necessary based upon experience and/or current scientific literature. CP Minerals shall furnish all supervision, labour, facilities, equipment, materials, supplies and certifications necessary or desirable to perform its work. If client directs a manner of making tests that varies from standard or recommended procedures, client shall hold CP Minerals harmless from all claims, damages and expenses arising out of such direction. Such variations shall be noted on analysis requests.
3. Sample Custody
Samples accepted by CP Minerals shall remain the property of client while in the custody of CP Minerals. CP Minerals shall retain samples for a period of thirty (30) days following the date of submission of its report to client. CP Minerals shall extend the retention period if client so requests and agrees to pay for additional storage. Following the retention period, CP Minerals will dispose of most samples upon client request. CP Minerals reserves the right to charge for disposal of samples it considers difficult to handle or, at the option of CP Minerals, to return samples to client in lieu of disposal. All such samples returned shall be accepted by client.
CP Minerals is responsible for the health and safety of its employees. Client shall notify CP Minerals of any hazardous substances present at the site where samples were acquired, or believed by client to be present in the samples, that may put CP Minerals employees at risk. CP Minerals may refuse acceptance or revoke acceptance of samples if it determines they present a risk to health, safety or the environment or that CP Minerals is not authorized to accept them. Client shall promptly remove from CP Minerals' facilities any sample for which CP Minerals revokes its acceptance.
5. Reports and Records
Unless otherwise agreed by CP Minerals in writing, client shall use reports prepared by CP Minerals only for the purposes disclosed to CP Minerals at the time of contracting. CP Minerals shall maintain records and supporting documents for work for a period of five (5) years after completion of said work. CP Minerals shall be the owner of all such documents; provided, however, that copies may be supplied to client upon request
CP Minerals shall not provide analytical results or information on client work to any party other than client, unless client, in writing, requests information to be provided to a third party or unless disclosure by CP Minerals is required by law.
CP Minerals shall provide client with a quotation, valid for 30 days, unless otherwise specified, for client work requested and will not commence with any analysis work unless quotation has been accepted by client, in writing, and any advance payments, deposits or fees applicable have been paid by client. Advance payments, deposits or fees are 50% of the quoted value of a request and are applicable to, but not limited to, new and cash-on-delivery clients.
8. Handling Fee
All analysis quotes and requests may include a handling fee of N$ 150.00 excluding VAT to cover for the handling and storage of samples and logging request onto the CP Minerals Information Management System. The handling fee may be waived on requests larger than N$ 2 500.00 excl. VAT, but is always due on the first invoice of new clients to cover costs for creating and processing new client account. The handling fee will be reviewed by CP Minerals from time to time.
9. Purchase Order
If client's company or its subsidiaries require submission of an official purchase order before goods or services may be delivered by CP Minerals, then, in addition to any other rights or remedies provided by law, CP Minerals shall have the right not to commence with any analysis work until a valid order number has been received, in writing, for the work quoted and accepted.
10. Payment Terms
Client shall pay in full the net amount of each invoice submitted by CP Minerals on presentation. Amounts not paid when due shall bear interest at the rate of 2% per month, or the maximum rate permitted by law, whichever is less, from the date due until the date of payment. Any other payment terms may be negotiated with CP Minerals after submission of a credit application. CP Minerals reserves the right to withhold analysis results until invoice has been settled in full.
11. Termination or Suspension
Client shall have the right to cancel orders placed with CP Minerals or suspend work on orders, but shall be obligated to pay for any work completed and expenses incurred during the period of time prior to cancellation or suspension. A proposal by client to change an analysis request may be regarded by CP Minerals as an order to suspend work until agreement is reached on the effect of such change on the compensation payable to CP Minerals and other relevant issues raised by the change.
12. Right to Stop Work
In the event client fails to pay for services rendered on presentation of invoice or within agreed payment terms, then, in addition to any other rights or remedies provided by law, CP Minerals shall have the right to suspend any further work for client and to retain any and all of its work product not yet delivered to client. Client shall have no right to use the work of CP Minerals for any purpose until the same has been paid for in full.
13. Alternative Dispute Resolution
All disputes between CP Minerals and client shall be submitted to alternative dispute resolution ("ADR") as a condition precedent to litigation and other remedies provided by law. CP Minerals and client each agree to exercise good faith efforts to resolve disputes through mediation unless both parties agree to another ADR procedure.
14. Attorneys' Fees
If either party to this agreement 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 CP Minerals brings a lawsuit against client to collect the invoiced fees and expenses of CP Minerals, client agrees to pay the reasonable collection expenses, including attorneys' fees, incurred by CP Minerals.
15. Time Limit For Making Claims
CP Minerals shall not be liable for damages unless suit is commenced within two (2) years of the date of injury or loss or within two (2) years of the date of completion by CP Minerals of its services, whichever is earlier. In no event shall CP Minerals be liable for damages unless it has been notified by client of the discovery of any claimed negligent act, error, omission or breach within thirty (30) days of the date of its discovery and unless client has given CP Minerals an opportunity to investigate and to recommend ways client may mitigate its damages.
16. Limitation of Liability
In no event shall CP Minerals be liable for any incidental or consequential damages of any kind, whether or not arising out of negligence. The aggregate liability of CP Minerals for its negligent acts and omissions and for its non-intentional breach of the agreement with client shall not exceed the fee paid to CP Minerals for its services, and client agrees to indemnify CP Minerals from all liabilities to others in excess of that amount. The foregoing limitation on CP Minerals liability does not apply to losses arising from the gross negligence of CP Minerals or intentional breaches of contract.
Subject to the limitation on liability set forth above, CP Minerals agrees to indemnify and hold client harmless from and against demands, damages and expenses caused by CP Minerals' negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom CP Minerals is legally responsible. Client shall indemnify and hold CP Minerals harmless from and against demands, damages and expenses caused by client's negligent acts and omissions and breach of contract and by the negligent acts and omissions and breach of contract of persons for whom client is legally responsible.
18. Response to Legal Process
Client shall compensate CP Minerals for its services and expenses if CP Minerals is required to respond to legal process related to its services for client. Compensatable services shall include hourly charges for all CP Minerals personnel involved in the response and attorneys' fees reasonably incurred in obtaining advice concerning the response, the preparation of the testifier and appearances related to the legal process.
19. Force Majeure
Neither CP Minerals nor client shall have any liability for nonperformance caused in whole or in part by causes beyond their reasonable control. Such causes include, but are not limited to, civil unrest and war, acts of authorities and failure of subcontractors that could not reasonably be anticipated.
20. Relationship of the Parties
CP Minerals shall perform work for client as an independent contractor.
21. Entire Agreemen
Unless modified by a written agreement signed by client and CP Minerals, 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.
22. Governing Law
The agreement between CP Minerals and client shall be governed by Namibian law.