To the extent that the UL Solutions and Client have entered into a master agreement governing the subject matter hereof ("Agreement"), the Agreement governs UL's performance of the Services. To the extent the parties have not entered into such an Agreement, these Terms of Service govern. In the event of a conflict between the Agreement and these Terms of Service concerning the subject matter herein, these Terms of Service prevail.
- Regulatory Advisory Services. UL will perform advisory, regulatory research, training, protocol development, and/or other professional advisory services related to chemicals (“Services”) as outlined in the SOW.
- Payment Terms. Client will pay, without set off, UL fees and related expenses in accordance with the SOW including the cost of all taxes, wire or transfer fees, duties, and other fiscal charges which become due on the quoted price and will indemnify UL from and against liabilities, incurred as a result of failure to pay any such sums when they become due. UL may charge interest at 1% per month (12% per year), or the maximum legal rate if less than 1.0% per month, from the due date until paid fully. Client agrees to pay reasonable collection costs, including attorneys’ fees, if necessary, in the event of late or non-payment.
- Client Responsibilities. As a prerequisite to UL’s delivery of Services or any portion thereof, Client will: (a) fulfill Its responsibilities as specified in the SOW; (b) ensure that all assumptions contained in the SOW are accurate; (c) provide UL with reliable, accurate and complete information, as required; and (d) make timely decisions and obtain required management approvals (“Client Responsibilities”). UL will be entitled to rely on all Client's decisions and approvals made before and during the provision of Services. Nothing in these Terms of Service will require UL to evaluate, advise on, modify, confirm, or reject such decisions or approvals.
- Deliverables. The SOW shall specify the deliverables to be provided by UL (“Deliverables”).
- 4.1 Deliverables Generally.
Upon full performance by Client of Client's Responsibilities and payment of fees due, Client will have a perpetual, irrevocable, non-exclusive, right and authorization to use, reproduce, display, distribute, modify, and make derivative works of the Deliverables. Unless separately agreed to in writing to the contrary, UL will retain all right, title and interest in and to: (a) the Deliverables including, without limitation, all patent, copyright, trademark, and other intellectual property rights in the Deliverables; and (b) all methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how embodied in the Services or Deliverables or that UL may develop or supply in connection with the Services (“UL’s Knowledge”). Notwithstanding the foregoing, Client may not relicense or resell Deliverables.
- 4.2 Hazard Communication Deliverables.
With respect to Deliverables that constitute hazard communication documentation (“Hazard Communication Deliverables”), upon full performance by Client of any responsibilities and payment of fees due, Client shall own any Hazard Communication Deliverables.
Notwithstanding the foregoing, UL shall retain all right, title and interest in and to all methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how embodied in the Services to create the Hazard Communication Deliverables or that UL may develop or supply in connection with any Services.
- 4.1 Deliverables Generally.
- Acceptance. Client will accept Deliverables that conform to the requirements of the SOW and notify UL of any non-conformance of the Deliverables with such requirements (the “Non-conformance”) in accordance with the timeframes set out in the applicable description of Services in the SOW. UL will have a reasonable period of time, based upon the severity and complexity of the Non-conformance, to correct the Non-conformance.
- Disclaimer. The Services are provided independently of UL and its Affiliates conformity assessment services such as preliminary product investigations, product certification, or field evaluation services. UL does not guarantee, warrant, or provide an assurance (express or implied) to any party that a positive test result, compliance report, or issuance of a certification mark will result from UL’s delivery of Services hereunder. UL does not guarantee that UL’s opinions or findings will be recognized or accepted by third parties. The Services are provided for general information purposes only and are not intended to convey legal or other professional advice. Client further acknowledges that although Services may contain content relating to laws and regulations, such content is not an exhaustive or detailed account of all potentially applicable legal or regulatory requirements.
- Use of Names and Marks. Except as otherwise authorized by UL in writing, Client will not use UL’s name, abbreviation, symbols, marks, or the name of any of UL’s subsidiaries, affiliates, or parent on any goods or Client containers or packaging, or in connection with any advertising, promotions, or otherwise.
- Warranty. UL warrants that the Services will be performed with reasonable care in a diligent and competent manner. UL's sole obligation will be to correct any non-conformance with this warranty, provided that Client gives UL written notice within thirty (30) business days after the Services are accepted in accordance with these Terms of Service. THE WARRANTY SET FORTH ABOVE IS UL'S ONLY WARRANTY CONCERNING THE SERVICES AND ANY DELIVERABLES AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. UL MAKES NO WARRANTY WHATSOEVER REGARDING THE ACCURACY, READABILITY OR USEFULNESS OF ANY DATA DELIVERED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, SAFETY DATA SHEETS (SDSs), TEXT PHRASES, TEXT PHRASE TRANSLATIONS, CHEMICAL PROPERTIES, REGULATORY INFORMATION, OR OTHER RELATED ENVIRONMENTAL, HEALTH, SAFETY OR REGULATORY DATA. Client acknowledges and agrees that Client shall review and approve any Hazard Communication Deliverable that results from Services prior to distribution or publication thereof and that Client shall be solely responsible for the use of any such Deliverable.
- Client Information. Client represents and warrants that all information and data provided to UL by Client, or on Client's behalf, is complete and accurate and that Client is in compliance with any relevant data protection laws in so furnishing such information to UL and it may be relied upon to provide Services. In addition, Client represents and warrants that all of Client's Information is owned or licensed by Client and does not infringe on the intellectual property rights of any third party. If any information or data provided to UL by Client or on Client's behalf is either incomplete or inaccurate, UL will not be liable in any manner for any deficiencies in the Services.
- Third Party Beneficiaries. UL’s Affiliates are intended third party beneficiaries of these Terms of Service for purposes of enforcing all provisions of these Terms of Service, other than those provisions that create rights to receive income related to the Services. Except as provided above, each Party intends that no provision of these Terms of Service will in any way benefit any other third party or accord any third party any rights or remedies.
- Confidentiality. “Confidential Information” means any information, technical data, know-how, tangible products, or materials provided by one party to the other party under these Terms of Service. Confidential Information shall not include any information that: (a) was previously known to the recipient or independently developed by the recipient without reference to the Confidential Information; (b) is or becomes publicly available through no fault of the recipient; (c) is disclosed by the recipient with the discloser’s prior written approval; or (d) required to be disclosed by law or regulatory authority. The recipient shall use Confidential Information only for the parties' mutually agreed upon purpose as described in the SOW. The recipient shall not disclose Confidential Information to any third party except as permitted hereunder. Upon expiration or termination of Services, recipient shall promptly destroy all documents and information, however recorded, which contain discloser’s Confidential Information; provided that recipient shall be permitted to maintain one (1) copy in an encrypted archived computer system backup that was made in accordance with its corporate business continuity or disaster recovery procedures. Neither party may make any public announcement or press release about the Services without the other party’s prior written approval and consent.
- LIMITATION OF LIABILITY. UL'S LIABILITY FOR ANY CLAIMS FOR LOSS, DAMAGE, OR EXPENSE OF ANY NATURE AND HOWSOEVER ARISING FOR ANY BREACH OF CONTRACT AND/OR ANY FAILURE TO EXERCISE APPROPRIATE SKILL AND CARE BY UL WILL UNDER NO CIRCUMSTANCE EXCEED THE FEES RECEIVED FOR THE SPECIFIC SERVICES WHICH GIVE RISE TO SUCH CLAIMS. UNDER NO CIRCUMSTANCE WILL UL HAVE ANY LIABILITY FOR ANY CLAIMS FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO: LOSS OF PROFITS, GOODWILL, USE, DATA, FUTURE BUSINESS, OR PRODUCTION; CANCELLATION OF CONTRACTS ENTERED INTO BY CLIENT; OR OTHER INTANGIBLE LOSSES (EVEN IF US HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). UNDER NO CIRCUMSTANCE WILL UL BE LIABLE TO CLIENT FOR ANY CLAIMS FOR LOSS, DAMAGE, OR EXPENSE UNLESS SUCH CLAIM IS BROUGHT UNDER SECTION 19 (DISPUTES) WITHIN TWELVE MONTHS AFTER THE DATE OF THE PERFORMANCE BY UL OF THE SERVICES WHICH GIVE RISE TO THE CLAIM OR, IN THE EVENT OF ANY ALLEGED NON-PERFORMANCE, WITHIN TWELVE MONTHS OF THE DATE WHEN SUCH SERVICES SHOULD HAVE BEEN COMPLETED.
- Indemnification. UL shall have no liability for any products liability or similar claim alleging injuries suffered using a product developed by Client. As such, Client will defend, hold harmless, and indemnify UL and UL’s officers, directors, trustees, employees, agents, or subcontractors (each an “indemnified party”) against all claims made by any third party for loss, damage, or expense arising out of these Terms of Service, including without limitation, the performance or non-performance of any Services, unless caused by an indemnified party’s sole negligence. If an indemnified party becomes subject to a third-party claim, it may defend itself at Client's expense with counsel of its own choosing.
- Subcontracting and Personnel. UL will be responsible for assigning and re-assigning UL’s personnel, as appropriate, to perform the Services. For the duration of the engagement and for a period of twelve (12) months after the Services are completed, Client will not actively solicit the employment of UL’s personnel involved directly with providing the Services to Client. Client agrees that UL may subcontract the Services to UL Affiliates or third parties. “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with, the UL where “control” means the power to direct or cause the direction of an entity’s affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise (and “controls” and “controlled” will be construed accordingly). Client authorizes UL to disclose all information to an Affiliate, including Confidential Information, necessary for such performance of the Services. UL will provide as a term of any such subcontract that the subcontractor shall meet UL’s current qualification requirements and will comply with UL’s requirements for confidentiality, conflicts of interest, and ethical standards. UL will be responsible for any breach of these Terms of Service by its subcontractors.
- Export Control. Client represents and warrants that it: (i) will not cause UL or any Affiliate to violate any export, trade or other economic sanction law; (ii) will promptly advise if a project involves technology that is subject to any government controls, including, without limitation, U.S. export controls, and will promptly supply all information needed to comply with those controls; and (iii) will make payment for Services with funds obtained and through financial institutions and accounts in compliance with applicable laws concerning the prevention of money laundering, terrorist financing and other illicit activities, including, without limitation, those enforced by the United States.
- Insurance. UL reserves the right to require Client to produce evidence that Client maintains satisfactory insurance coverage for the purpose of meeting any third-party liability. Upon request, UL shall provide Client a memorandum of insurance evidencing coverage.
- Termination and Notice. In the event of Client's material breach of these Terms of Service with UL or any Affiliate, UL may immediately terminate any or all Services. Client's failure or inability to pay Client's debts and obligations in the normal course of business as well as any filing of a petition in bankruptcy or any similar filing for protection from creditors will be a material breach by Client of these Terms of Service. Upon notice of termination of these Term, UL will take immediate steps to bring the Services to a close in a prompt manner. Client will pay those fees and expenses incurred by UL prior to termination. Notice to either party may be made by hand delivery, courier service, mail, facsimile, or e-mail transmission at the receiving party’s designated principal place of business. Notice to UL must be sent to: UL with a copy to: UL LLC, Attn.: General Counsel at 333 Pfingsten Road, Northbrook, Illinois 60062. Notice will be effective upon receipt.
- Governing Law. These Terms of Service will be governed and interpreted by the laws of the State of Illinois, United States of America, except if: (i) UL’s principal place of business is Asia, Australia, or New Zealand, then Singapore law, and (ii) UL’s principal place of business is Europe, then English law, without reference to the applicable jurisdiction’s choice of law principles.
- Disputes. Any dispute or disagreement, other than nonpayment of fees, relating to these Terms of Service or the Services, will be settled by confidential, binding arbitration administered by the International Centre for Dispute Resolution of the American Arbitration Association (“AAA”) pursuant to the AAA Commercial Arbitration Rules and the Procedures for Large, Complex Commercial Disputes. The arbitration venue will be Chicago, Illinois, except if: (i) UL’s principal place of business is in Europe, the venue will be London, England, and (ii) UL’s principal place of business is in Asia, Australia, or New Zealand, the venue will be Singapore, Republic of Singapore. The arbitration will be conducted before a panel of three (3) arbitrators. The arbitration panel will be selected as follows: the parties will request a list of ten (10) arbitrators drawn from the AAA's panel of commercial arbitrators (who are experienced in and familiar with the AAA's Procedures for Large, Complex Commercial Disputes). From this list, both parties will each choose one arbitrator. After they have been notified of their panel selection, the two (2) arbitrators will agree on a third arbitrator from the list of ten (10), who will be the chair of the panel, and the panel will be final. The decision of the majority of the arbitrators will be the panel’s decision. The arbitrators will not have the authority to add, change, or disregard any term of these Terms of Service to award incidental, consequential, or punitive damages (including, but not limited to, loss of use, unjust enrichment, and/or lost profits), or exceed the remedies provided by the limitation of liability of these Terms of Service. The panel’s decision will be binding and judgment on the arbitration award may be entered by a court of competent jurisdiction. Arbitration will be the final remedy for any dispute between the parties arising out of these Terms of Service, provided, however, that nothing herein will prevent either party from seeking a court order for injunctive relief (in addition to other remedies) to stop or prevent misuse or misappropriation of its marks, confidential or proprietary information, or infringement of its intellectual property, in a court of law. All arbitrations will be conducted in English.
- Severability. If any section of these Terms of Service is held invalid, void, or unenforceable for any reason that section will be severed, and all other sections of these Terms of Service will remain valid to the extent permissible under law.
- Modifications. These Terms of Service along with the SOW are the entire and complete agreement between the parties and supersedes any other communications, representations, or agreements with respect to its subject matter. Under no circumstances will any preprinted, additional, or different terms and conditions on Client's request for quotation, purchase orders, invoices, sales or marketing materials, emails, any acceptance communications, or other business documents apply to any Services or SOW or bind UL in any manner. Modifications that have not been made by UL or that have not been accepted by UL in a written or emailed confirmation from UL are not accepted by UL, and commencement of performance will not signify acceptance by UL of any such modifications. Any such modifications are excluded from UL’s agreement, and such modifications will not be a binding agreement on UL.
- Order of Precedence. Except for conflicts with Section 2 (Payment Terms), these Terms of Service will take precedence over any conflicting terms in any SOW.
- Electronic Signature. These Terms of Service and SOW may be executed and delivered by facsimile, PDF, or by means of other electronic signature. UL's electronic, digital, or hard copies of these Terms of Service, Client's acceptance, and SOWs as signed, or otherwise accepted, by Client will be the true, complete, valid, authentic, and enforceable copies of these documents. Client agrees that it will not contest the admissibility or enforceability of UL’s copies in a court or any proceeding arising out of such documents.
- Force Majeure. Neither party will be liable for any failure or delay in the performance of its obligations due to fire, flood, earthquake, elements of nature, or acts of God, acts of war, terrorism, riots, civil disorder, rebellions, or other similar cause beyond the reasonable control of the party affected, provided such default or delay: (i) could not have been prevented by reasonable precautions; (ii) cannot reasonably be circumvented; (iii) and the party hindered or delayed immediately notifies the other party describing the circumstance causing delay.