Terms and Conditions of Use
Welcome to New Era Drug Testing (“New Era Drug Testing”). When you access, browse and/or use this New Era Drug Testing website, including browsing any pages that comprise the Website or any affiliated website owned or operated by New Era Drug Testing (collectively the “Site”), and/or order services through this Site, you are agreeing, on your own behalf and/or on behalf of any corporation or other legal entity that you represent, or on behalf of which you access the Site (your “Company”) to: (1) be bound by and comply with the terms and conditions of use stated below (these “Terms”); (2) to comply with all applicable laws and regulations that pertain to use of this Site.
IF YOU DO NOT AGREE TO BOUND BY THES TERMS AND ANY APPLICABLE LAW, OR IF YOU DO NOT HAVE THE AUTHORITY TO AGREE TO OR ACCEPT THESE TERMS, YOU MAY NOT USE THIS WEBSITE.
If you are a party to a separate written agreement with New Era Drug Testing that pertains to the use of this Site (including information collected from or by the Site, or any services from offered by New Era Drug Testing) any conflict between these Terms and your written Agreement will be controlled by the written Agreement. Provisions that are in these Terms but are not present in any written agreement does create a conflict – these terms would apply.
MODIFICATION OF TERMS AND CHANGES TO THE SITE
New Era Drug Testing reserves the right to and may change these Terms and/or the Site at any time and without any prior notice. Any change or modification to the Site and/or the Terms are effective immediately upon notice. We may give notice of any change by any means, including, but not limited to, by posting a revised version of these Terms or other notice on the Site. It is your obligation to check the Terms for changes each time you use the Site, and you should review these Terms often to stay informed of changes that may affect you. Each time you use this Site, you are giving your ongoing and continuing agreement to be bound by these Terms, as they are amended from time to time. Each time you use the Site, you are agreeing to be bound by the Terms then in effect (services previously rendered will be governed by the Terms in effect at the time the Service was ordered or rendered).Modifications or changes to the Site or to any information contained on the site (e.g. text, data, databases, graphics, images, audio and/or visual clips), any software made available through the Site, and services and/or other materials within the Site are exclusive to and within the sole discretion of New Era Drug Testing.
LICENSE TO ACCESS AND USE SITE
You are being provided with a limited license to use this Site solely for the purpose of assessing the product and service offerings on the Site and placing orders for the products and services offered by the Website. You are not conveyed any right or license by implication, estoppel, or otherwise in, to or under and intellectual property rights of New Era Drug Testing or any of its licensors, or under a patent, trademark, copyright, or proprietary right of New Era Drug Testing or any third party. This Site and its content are intended for use by users located in the United States. If you are accessing this Site from outside of the United States, we make no representation that the content is appropriate for your jurisdiction and you use the site at your own risk.
Without New Era Drug Testing’s express written consent, you may not:
- Use any meta-tags or other “hidden text” utilizing New Era Drug Testing name or trademarks.
- Resell or make any other commercial use of this Site (or any portion thereof), or any of the content found on the Site.
- Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into a readable format, any part of this Website or its underlying HTML or other code (except as it may be interpreted and displayed by web browser for purposes of using the Website)
- Remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within any of the Site content.
- Copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post, or transmit any of the Site content.
- Make a derivative use of the Site and/or any Site content; or
- Utilize data mining, gathering or extraction methods such as bots, spiders, or other automated tools (whether directly or indirectly) to collect information from the Website or any user of the Website.
You agree to abide by these Site Terms and not to use the products and services offered by New Era Drug Testing for any improper, illegal, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of improper solicitation.
If you make or permit any unauthorized use of this Site (or Site content) we reserve the right to terminate your use of this Site, and any such action may also violate applicable laws including, without limitation, copyright laws, trademark laws (including trade dress), and communications regulations and statutes. We reserve the right to terminate your use of this Site.
CONDITION OF USE
In connection with your access and use of the Site (or any person authorized by you to access and use the Site) you represent, warrant, and agree as follows:
- All information that you provide to us true, accurate, and complete to the best of your knowledge and belief.
- New Era Drug Testing may, in its sole discretion, terminate your access to all or part of the Site, without notice or liability, for any reason, including, but not limited to:
- Unauthorized use of a username or password.
- Breach of an agreement between you and New Era Drug Testing (including these Terms).
- If your right to use the site is terminated, you will not access the Site without our written approval and all limitations upon your use Site content will remain in full force and effect.
- You will not use the Site or any Site content for any unlawful purpose.
- You will not use the Site to post or transmit any material that contains any virus, Trojan horse, worms, time bomb, cancelbots, malware, adware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
- You will not interfere with or inhibit any other user of this Site from using or enjoying the Site.
- You will not use post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, harassing, or otherwise objectionable information of any kind.
- You will not post or transmit any information which is invasive of another’s privacy or publicity rights or that otherwise violates or infringes in any way upon the rights of others; and
- You will not use the Site to post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication.
DATA SUBMITTED TO THE SITE
All information you provide to us, in any form or manner (each, a “Submission”), you are authorizing New Era Drug Testing to copy the material as we deem appropriate in our sole discretion. For each and every Submission, you are granting (and you are representing and warranting that you have the right to grant) to New Era Drug Testing an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute each such Submission for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Submission, and to grant and authorize sublicenses of the foregoing.
For each Submission you represent that you have the necessary right and authority to disclose the information contained in the Submission. You are fully responsible for any information that you submit to New Era Drug Testing, and you for the legality, reliability, appropriateness, and originality thereof.
Customer will provide a valid credit card information at the time of purchase. The credit card will be stored in the customers profile as an active form of payment. Customer authorizes Us to charge the card for all purchased services listed in the Service Agreement and any renewal terms. Credit card will be placed on Auto-pay.
This Site and its layout and design, and all Site pages, themes and skins are the property of New Era Drug Testing and are protected by U.S. and international copyright laws. The content of the Site, including without limitation, HTML text, graphics, other files, code, software layout, designs, forms, templates, artwork, photographs, images, document layouts, text, fonts, music, software tools, and other information, either alone and/or as compilation thereof (collectively, the “Site Content”), constitutes the property of New Era Drug Testing or of those parties from whom New Era Drug Testing has licensed such property, and are protected by United States, international and other laws. New Era Drug Testing reserves all rights in and to this Website and the Site Content.
The trademarks of New Era Drug Testing and their respective designs and/or logos, are either trademarks or registered trademarks of New Era Drug Testing, may not be copied, imitated or used, in whole or in part, without our prior written permission.
Except as expressly stated in these Terms, none of the materials and intellectual property described herein may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without our prior written permission. Any use of Site Content – including any commercial use, reproduction for purposes other than as permitted under these Terms, modification, distribution, republication, display, or performance — without our prior written permission is strictly prohibited.
SECURITY & PRIVACY
New Era Drug Testing is committed to taking commercially reasonable measures to protect information transmitted to and from the Site, but no system is infallible. Such information could potentially be subject to interception or alteration by third parties and it is not possible for us to guarantee absolute confidentiality or security.
It is your responsibility to maintain the confidentiality any username and any password used in connection with your use of the Site, and we will not be liable for any loss or damage arising from the unauthorized use of your username or password.
LINKS TO OTHER SITES AND/OR THIS SITE
If you link to our Site, you agree not to misrepresent your relationship with or present false or misleading impressions about New Era Drug Testing. You may not link to the Site in any manner that implies or suggests that we approve or endorse you, your website, or your goods and services (or those of your Company, if applicable). New Era Drug Testing accepts and will have no responsibility or liability for the content on your website. You may not use any trademark of New Era Drug Testing without our express permission, and you may not place a link on your website to our Site (or any portion thereof)on a page that contains libelous, obscene, or criminal content, or content which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights. We reserve the right, at any time and in our sole discretion, to require that you remove from your website any or all hyperlinks to the Site and you agree to immediately comply with any such request.
The use of this Site by you (and your Company, if applicable) is at your (and its) sole risk. ACCORDINGLY, THE SITE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, NEW ERA DRUG TESTING AND ITS AFFILIATES AND CONTENT PROVIDERS DO NOT WARRANT THAT: (a) THE USE OF THIS SITE OR ANY THIRD PARTY WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE; (b) THAT THE USE OF THIS SITE OR ANY SUCH THIRD-PARTY WEBSITE WILL ALLOW YOU TO OBTAIN ANY PARTICULAR RESULTS WHATSOEVER; (c) THE CONTENT OR ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THIS SITE OR ANY THIRD PARTY WEBSITE ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, RELIABLE, OR OF ANY PARTICULAR VALUE OR QUALITY; (d) THAT ANY DEFECTS IN THE SITE OR IN THE CONTENT WILL BE CORRECTED; OR (e) THAT THE SITE AND THE CONTENT ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS.
LIMITATION OF LIABILITY
IN NO EVENT WILL NEW ERA DRUG TESTING OR ITS CONTRACTORS, SUPPLIERS, CONTENT-PROVIDERS, AND OTHER SIMILAR ENTITIES, (COLLECTIVELY, OUR “CONTRACTORS”), AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AND AGENTS OF EACH OF THE FOREGOING, BE LIABLE TO YOU, YOUR COMPANY, OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES, ALLEGED UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE OF, OR RELIANCE ON, THE SITE OR THE CONTENT; (B) OUR PERFORMANCE OF OR FAILURE TO PERFORM OUR OBLIGATIONS IN CONNECTION WITH THESE TERMS; (C) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE SITE OR OF THIRD PARTIES; OR (D) YOUR PURCHASE OR USE OF ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES.
UNDER NO CIRCUMSTANCES WILL NEW ERA DRUG TESTING OR IT CONTRACTORS BE LIABLE TO YOU, YOUR COMPANY, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO PROPERTY, LOSS OF USE, BUSINESS INTERRUPTION, AND CLAIMS OF THIRD PARTIES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF THE SITE OR THE CONTENT, OR THE TRANSMISSION OF INFORMATION TO OR FROM THE SITE OVER THE INTERNET, EVEN IF WE WERE ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, THE LIABILITY OF NEW ERA DRUG TESTING AND THE CONTRACTORS WILL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE EXTENT PERMITTED BY LAW.
WITHOUT LIMITING ANY OF THE FOREGOING, IF NEW ERA DRUG TESTING OR ANY OF THE CONTRACTORS IS FOUND LIABLE TO YOU OR TO ANY THIRD PARTY AS A RESULT OF ANY CLAIMS OR OTHER MATTERS ARISING UNDER OR IN CONNECTION WITH THESE TERMS, THE SITE, OR YOUR USE OF THE SITE, THE MAXIMUM LIABILITY FOR ALL SUCH CLAIMS AND OTHER MATTERS WILL NOT EXCEED $100 IN ANY CALENDAR YEAR.
You agree to defend and indemnify New Era Drug Testing, and our members, officers, directors, employees, representatives, and agents, against all claims, demands, suits, or other proceedings, and all resulting loss, damage, liability, cost, and expense (including reasonable attorneys’ fees), made by any third party arising out of: (a) content, data, or information that you submit, post to, or transmit through the Site; (b) your access to and use of the Content, the Site, and other materials, products, and services available on or through the Site and New Era Drug Testing ; (c) your violation of these Terms; (d) your violation of any rights of any third party; (e) your website; and (f) any unauthorized use of a username, password, or account number. We reserve, and you grant to us, the right to assume the exclusive defense and control of any matter subject to indemnification by you.
GOVERNING LAW & JURISDICTION
These Terms and your use of the Site shall be governed by and construed in accordance with the laws of the State of California, without resort or giving effect to conflict of law provisions. Regardless of where you access this Site, you agree that any action at law or in equity arising out of or relating to these Terms and/or your use of the Site shall be filed and adjudicated only in the federal or state courts located in Los Angeles, California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of or under these Terms and or your use of the Site. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
WAIVER OF JURY TRIAL
TO THE MAXIMUM EXTENT PERMITTED BY LAW YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTIONS, SUITS, OR PROCEEDINGS ARISING OUT OF OR RELATING TO THESE TERMS AND THE MATTERS CONTEMPLATED HEREBY.
- An electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of New Era Drug Testing’s copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.
- Any provision of these Terms can be reasonably inferred to survive termination (including, but not limited to, any provisions regarding limitation of our liability or indemnification) will continue in effect beyond any such termination of access to this Site.
- These Terms do not confer any rights, remedies, or benefits upon any person other than you.
- We may assign our rights and duties under these Terms at any time to any third party without notice. You may not assign your obligations under these Terms without our prior written consent.
- Any waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.
- If any provision of these Terms is held to be invalid or unenforceable, that provision will be stricken and will not affect the validity and enforceability of any remaining provisions.
CANCELLATION & REFUNDS
For FAA Enrollment Plan:
In the event that I want to cancel my order for the $195.00 enrollment prior to getting specimen collected at a patient service center, I will be refunded $119.00 of the fees paid due to direct expenses related to getting the account setup process. No Refunds would be issued after specimen is collected at a patient service center due to direct expenses related to specimen collection, supplies, employee time and courier services.
For FMCSA & PUC Enrollment Plan:
In the event that I want to cancel my order for the $155.00 enrollment prior to getting specimen collected at a patient service center, I will be refunded $109 of the fees paid due to direct expenses related to getting the account setup process. In the event that I want to cancel my order for the $55.95 enrollment, I will be refunded 0% of the fees paid due to direct expenses related to getting the account setup process. No Refunds would be issued after specimen is collected at a patient service center due to direct expenses related to specimen collection, supplies, employee time and courier services.
This Master Services Agreement (this “Agreement”) is entered into as of 12/20/2022 (the “Effective Date”) by and between New Era Drug Testing LLC, a California limited liability company d/b/a ConsortiumPool.com and DOTCompliance.us, with its principal place of business at 801 South Glenoaks Blvd, Suite 200, Burbank, CA 91502 (the “Company”), and the customer identified in the signature line below (the “Customer”). Company and Customer may be hereinafter referred to as the “parties,” and each a “party.”
WHEREAS, Company performs drug and alcohol testing facilitation services in its capacity as a Consortium/Third Party Administrator (C/TPA), as that term is defined in Title 49 Code of Federal Regulations Part 40 (§40.3), on behalf of customers regulated by the United States Department of Transportation (DOT), by state public utilities commissions (PUCs), or by similar state or federal agencies;
WHEREAS, Customer employs certain employees and/or contractors (“Employees”) who perform safety-sensitive functions in industries regulated by the DOT or a similar state or federal agency, for which pre-employment, ongoing, and circumstances-driven random drug and alcohol testing is required; and
WHEREAS, Customer desires to engage Company for the purpose of facilitating the random drug and alcohol testing of its eligible employees, and for the provision of other services related to Company’s compliance obligations under 49 C.F.R. Part 40.
ARTICLE I: DEFINITIONS
Section 1.01 Definitions. The following terms shall have the following definitions for purpose of this Agreement:
“Agency” or “Agencies” shall mean one or more United States regulatory or supervisory agencies for which Customer owes reporting or compliance obligations, including, as applicable, the FAA and FMCSA.
“Applicable Law” shall mean the laws applicable to Customer by virtue of its industry and its employment of Safety-sensitive employees, including but, not limited to, the Code of Federal Regulations (e.g., 49 CFR Part 40, 49 CFR Part 383, etc.) and other relevant state and federal laws, whether promulgated prior to or during the term of this Agreement.
“Safety-sensitive” with respect to Customer’s employees, shall mean (i) for purposes of the FMCSA, drivers who operate a commercial motor vehicle in commerce in any state; and (ii) for purposes of the FAA, any individual responsible for performing one or more safety-sensitive functions enumerated as safety-sensitive by that Agency from time to time. In each case, a “safety-sensitive” employee shall include all individuals actively performing, ready to perform, and/or immediately available to perform any safety-sensitive duty, as applicable.
“Services” shall mean any drug and alcohol testing facilitation services, and similar services described with greater particularity in Section 3.01 that Company expressly commits to perform under this Agreement, as the Parties might mutually agree in writing to modify, expand, or contract such services over time.
ARTICLE II: TERM AND TERMINATION
Section 2.01 Term of Agreement. The term of this Agreement (the “Term”) shall continue in perpetuity unless terminated by either party in accordance with Section 2.02, below.
Section 2.02 Termination. The parties may terminate this Agreement as follows:
(a) Termination for Convenience (Customer). Customer may immediately terminate this Agreement for convenience on written or oral notice to the Company.
(b) Termination for Convenience (Company). Upon thirty (30) days’ prior written notice, which may be by email, Company may terminate this Agreement and suspend all Services provided hereunder.
(c) Termination for Cause. Either party may terminate this Agreement at any time for cause if (i) the other party breaches a material term of this Agreement and fails to cure the same within three (3) business days following receipt of written notice from the aggrieved party of such breach (unless such party is afforded a shorter cure period under this Agreement), or (ii) immediately, if the other party ceases its operation, dissolves or commences any bankruptcy, receivership, or other procedure for the relief from creditors. For purposes of this Section 2.2(c), Customer’s payment obligations of any kind shall each be construed as a “material term,” the breach of which shall entitle Company to immediately terminate this Agreement.
Section 2.03 Effects of Termination. The last date of the Term of this Agreement, having been terminated pursuant to this Article 2, shall be the “Termination Date.” Notwithstanding any contrary provisions in this Agreement, within ten (10) business days from the Termination Date, Company shall deliver to Customer any unremitted employee test result, evidence of employee testing, annual or other regular testing due but not yet delivered to Customer. Alternatively, at the parties’ mutual election and at Customer’s expense (which shall mean Company’s reasonable administrative costs, to the extent permitted under Applicable Law), Company shall immediately deliver all such employee and related records in its possession to a substitute C/TPA appointed by Customer. Notwithstanding the termination of this Agreement and the operation of this Section 2.03, Company shall maintain all records in its possession it is required under Applicable Law to maintain, and for the duration specified therein, including, but not limited to, annual reports submitted to any Agency and other records related to the testing process or training.
ARTICLE III: SERVICES AND FEES
Section 3.01 Company Services. During the Term, Company shall provide Customer with the services below (the “Services”), as each are requested from Customer through Company’s online service portal (the “Portal”), by telephone, or by any other channel in which Company accepts requests for Services.
(a) Pre-Employment Testing. Company shall coordinate pre-employment testing of those prospective and newly-hired employees identified by Customer through the Portal in accordance with Applicable Law. For purposes of this Section 3.01(a), pre-employment testing shall include testing of current Customer employees who are transferring to a Safety-sensitive position or performing Safety-sensitive functions and not previously subject to drug or alcohol testing under Applicable Law (subject to Section 3.01(h)). Customer shall be solely responsible for determining whether a prospective, new, or transferred employee is required to submit to pre-employment testing under Applicable Law, including whether or not the functions to be performed or position to be filled by the employee are classified as Safety-sensitive.
(b) Random Employee Testing. Company shall coordinate quarterly (i.e., January 1st, April 1st, July 1st, October 1st) random drug and alcohol testing of those Customer’s Safety-sensitive employees identified by Customer through the Portal, by telephone, or otherwise (the “Employee Pool”), with such coordination as provided in accordance with Applicable Law. The Company will utilize randomizing software deemed compliant by the DOT or other relevant state or federal Agencies, and shall, to the best of Company’s abilities, provide a strictly random drawing from the Employee Pool (or from a broader consortium of third-party test candidates, as applicable), which pool shall include all personnel subject to testing, including, but not limited to, temporary and seasonal employees. Where Customer is subject to regulation by more than one Agency, Company shall be permitted to assign all Employees to the same Customer Pool or Consortium Pool, in its sole discretion. At Customer’s election, Company shall provide Customer with notification of random employee selection by text message, which messages shall have the same effect as messages delivered through the Portal, by mail, or otherwise. Customer is responsible for any and all fees and costs associated with receiving text messages. Customer may opt-out from receiving text-based notifications at any time by communicating such intent to Company in the manner described in Section 8.03.
Company shall identify those employees selected for random drug or alcohol testing on a Customer Pool or Consortium Pool basis, as follows:
(i) Customer Pool. Where Customer has a list of qualifying Safety-sensitive employees and contractors consisting of ten (10) or more individuals, on mutual agreement by the parties, Company shall establish a random pool of such individuals to the exclusion of all third parties (a “Customer Pool”). Company shall conduct random employee selections exclusively from this Customer Pool, at the rates of selection described in Section 4.01 and 4.02.
(ii) Consortium Pool. Pursuant to 49 CFR 40.347 and other Applicable Law, Company may combine Safety-sensitive employees from one or more employers or DOT-regulated industries (e.g., commercial trucking and aviation) into a single random pool (each, a “Consortium Pool”). In the event Customer has fewer than ten (10) qualifying employees or contractors as part of its Employee Pool, Company will automatically assign Customer’s employees to a Consortium Pool for random selection.
(c) Reasonable Suspicion Testing. Where prompted by Company’s suspicion of drug and/or alcohol abuse or consumption, as provided under Applicable Law, Company shall coordinate the testing of those Employees, which determination of suspicion by Customer must be supported by a supervisor’s observations in accordance with DOT guidance, including, but not limited to then-current U.S. Department of Transportation Drug & Alcohol Supervisor Training Guidance. Company is not responsible for Customer’s failure to promptly initiate Employee testing in response to reasonable suspicion of alcohol or drug use as required under Applicable Law, for misapplying metrics and parameters to suspicious activities, or any other Customer error or oversight relating to its Employees under this Section.
(d) Post-Accident Testing. Company shall coordinate the post-accident testing of Customer’s Employees in accordance with Applicable Law, as prompted by Customer from time to time. Company shall be under no independent obligation to affirmatively commence any post-accident testing except as prompted by Customer, nor to independently confirm the reasonableness of Customer’s assessment of suspicion.
(e) Return to Duty & Follow-up Testing. Company shall coordinate the “return to duty” and “follow-up” testing of Customer’s Employees in accordance with Applicable Law, as prompted by Customer from time to time.
(f) Designation of Medical Review Officer (MRO). In accordance with Applicable law, Company shall designate a qualified medical review officer (MRO) to Customer’s account for the purpose of receiving, analyzing, and communicating the results of Employee drug and alcohol tests. Company shall be free to designate an MRO of its choice, and to replace the MRO with five (5) days’ prior notice to Customer, each in its sole discretion, provided the MRO meets the minimum qualifications found in 49 C.F.R. §40.121 or other Applicable Law. Company represents that, at all times during the Term, the MRO assigned to Customer shall be a licensed physician (Doctor of Medicine or Osteopathy) with a basic knowledge in, and have clinical experience in, controlled substances abuse disorders, and shall confirm to all other minimum requirements established by the DOT from time to time.
The initial MRO assigned to Customer shall be:
RAFFI KAZARIAN, M.D.
801 South Glenoaks Blvd, Suite 200
Burbank, CA 91502
(g) Nature of Coordination; Use of Portal. For purposes of Section 3.01, all references to “coordination” of drug and alcohol testing shall mean performing random employee selections on a quarterly or other basis (as the parties agree), facilitating Employee scheduling of drug and alcohol testing, maintaining an accurate geographic list of qualifying testing labs, and similar services, with all such Services to be provided through the Portal, or by telephone or other means of correspondence in Company’s sole discretion.
(h) Transferred Employees. Company shall add Customer’s new Employees to the Portal and the Employee Pool, including those Employees transferred from another employer that is regulated by the Agencies, who have undergone drug and/or alcohol testing during the immediately preceding thirty (30) day period. For all other Employees, onboarding to the Portal shall be as described in Section 3.01(a).
(i) Signup and Onboarding; Certificates of Enrollment; Related Documents. Upon Customer’s execution of this Agreement and the satisfaction of any conditions precedent (including the payment of any advanced Service Fees), Company shall onboard Customer into its Portal within a commercially reasonable period of time (but in any event, within two (2) calendar weeks)). As part of this onboarding process, Company shall provide Customer with an employee education guide, a certificate of enrollment (presuming all applicable prior conditions have been met by Customer), and any other documents Company is required to provide to Customer under Applicable Law as a C/TPA.
(j) Compliance with Applicable Law. Company shall be free to perform any other services contemplated by or required under Applicable Law. Such Services shall not be construed as either a breach of this Agreement or as a commitment to perform such Services for Customer on an ongoing basis (during or after the Term), except where compelled by Applicable Law.
Section 3.02 Service Exclusions. Company shall not be responsible for performing any of the following services under this Agreement:
(a) Customer Compliance. Company is not responsible for providing Customer with drug or alcohol supervision or testing policies, or ensuring the compliance of any of Customer’s policies, practices, or procedures, including, but not limited to (i) ensuring that Customer provides its Employees with educational materials, policies, and procedures, ensuring such materials as drafted meet minimum requirements under Applicable Law, or ensuring that Customer’s Employee sign statements acknowledging receipt thereof; (ii) ensuring that supervisors are trained in accordance with Applicable Law (e.g., 49 C.F.R. §382.603); (iii) confirming that Customer is exempt from supervisory obligations as an owner-operator; (iv) complying with obligations to cease attempting to administer post-accident testing after the time periods specified under Applicable Law (i.e., under FMCSA regulations, within 8 hours for alcohol testing and 32 hours for drug testing); and (iv) any other laws applicable to Customer or its Employees.
(b) Test Scheduling. While Company shall keep records of Customer’s training regimen and schedule in accordance with Article V, Company shall not be responsible for confirming that Customer’s Employee have scheduled or completed their tests such that Customer has met, or is likely to meet, its quarterly, annual, or other testing obligations, as applicable. Company is not responsible for contacting Customer’s Employees to remind them to schedule testing appointments or take any other compliance measures.
(c) No Intermediary Services. Company shall not serve as intermediary in the transmission of drug test results from the laboratory to the MRO, will not accept test results directly from a laboratory, and will not transmit drug test results directly to the Customer from the laboratory.
Section 3.03 Service Fees. Company shall charge to Customer fees for those Services requested by Customer from time to time (the “Service Fee(s)”) in accordance with Company’s then-current fee schedule incorporated herein by reference. Company shall be permitted to change its Service Fees at any time upon thirty (30) days’ written notice (which may be by email) and unilaterally update its fee schedules without needing Customer’s consent to amend this entire Agreement. In response to any change to the Service Fees, Company’s sole remedy shall be to terminate this Agreement under Article II.
Section 3.04 Billing and Invoicing; Suspension of Services. Company shall invoice Customer for the Service Fees in advance or in arrears, with or without automatic billing, in its sole discretion as provided in this Section 3.04. Company shall be solely privileged to determine estimated Service Fees for invoices to be paid in advance of the Services using any methodology Company desires, including, but not limited to, the number of Employees in Company’s Portal account and the types of Services requested. Where Customer is invoiced in arrears, all Services Fees are due and payable in full within thirty (30) calendar days. Any amount unpaid in full when due under this Section 3.04 shall bear interest at a rate of one and one-half percent (1.5%) per month, or the highest rate of interest permitted under the usury laws applicable to Customer, whichever is lower. Except where prohibited by Applicable Law, Company shall be permitted to immediately suspend its Services in response to any delinquent payment of the Service Fees and, in its sole discretion, terminate this Agreement under Section 2.02(b).
Company shall bill Customer under one or more of the following methods:
Pre-Payment: Customer shall submit payment in advance for any and all Services to be performed by Company under this Agreement. Prior to Company’s commencement of any Services, including onboarding as described under Section 3.01(i), Customer shall remit an initial advance deposit in a sum established by Company from time to time, in its sole discretion, against which the Services shall be debited. Company is under no obligation to perform any Services, or complete Services commenced but not paid for in full, until and unless Customer makes full payment in advance therefor. Company may seek supplemental deposits as deposit funds are exhausted, new Services or Employees are added to Customer’s account, or otherwise.
Net 30 Payment: Company shall invoice Customer for the Services on a monthly basis, with all payments due in full within thirty (30) calendar days.
Credit Card Auto-Pay: Company shall invoice Customer for the Services on a monthly basis, or as such Services as rendered, in Company’s sole discretion, with all payments charged against a Customer credit card kept on file with Company. Customer is solely responsible for ensuring that its credit card designated for automatic payments under this billing method are current. In the event Company is unable to charge Customer’s card on file, and where Customer does not provide Company with a replacement card with a five (5) business day period, Company shall be entitled to alternatively suspend its Services, bill Customer in arrears, demand immediate payment by other means, or take any other lawful actions it deems appropriate under the circumstances to resolve any outstanding invoice.
Section 3.05 Manner of Payment. Customer shall pay any invoice when due by credit card, ACH transaction, wire transfer, or in any other manner as the parties agree. Company shall be permitted to recoup from Customer reasonable credit card processing fees in addition to the Service Fees, as applicable.
Section 3.06 Use of the Portal. Company shall take commercially reasonable measures to protect information transmitted via the Portal, but cannot guarantee that its security measures are infallible. Company does not guarantee that Customer information will not be intercepted, altered, hacked, or exploited by third parties. Customer is responsible for maintaining the confidentiality of any Portal username and password assigned to it. Company is not responsible for the authorized use of the Portal resulting from Customer’s failure to properly secure its access information.
Section 3.07 Text Message Notifications (Invoices). In lieu of mailed invoices, Customer may opt-in to receive invoice payment notifications and reminders by text message at a number Customer provides. Text messages received pursuant to this Section shall be deemed received when sent by the Company. Customer is responsible for any and all fees and costs associated with receiving text messages. Customer may opt-out from receiving text-based notifications at any time by communicating such intent to Company in the manner described in Section 8.03.
ARTICLE IV: TESTING STANDARDS AND THRESHOLDS
Section 4.01 Random Alcohol Testing Standards. The rate of random alcohol tests administered to Customer’s Employees shall be as prescribed under the Agency rules applicable to the Employees, which shall be as follows: (a) for Employees regulated under the FMCSA, ten percent (10%); (b) for the FAA, ten percent (10%); and (c) for all other Agencies, in accordance with the current Random Rate Federal Register Notice, incorporated herein by reference, as it may be amended from time to time.
Section 4.02 Random Drug Testing Standards. The rate of random drug tests administered to Customer’s Employees shall be as prescribed under the Agency rules applicable to the Employees, which shall be as follows: (a) for Employees regulated under the FMCSA, fifty percent (50%); (b) for the FAA, twenty-five percent (25%); and (c) for all other Agencies, in accordance with the current Random Rate Federal Register Notice, incorporated herein by reference, as it may be amended from time to time.
Section 4.03 Randomization Standards. Company shall generate a pool of Employees subject to randomization using the list of Employees made available to it by Company through the Portal (or as otherwise provided to Company). Company shall be under no independent obligation to determine the accuracy of any employee list, and shall be entitled to rely upon the active list of employees on the Portal. Where Company uses software, algorithms, or other methodologies to randomize its sampling of Customer Employees, those tools shall meet the minimum standards for scientific validity established by the DOT from time to time (e.g., random-number tables, computer-based random number generators traceable to specific employees, etc.). Customer shall have no right to examine these randomization tools (including the software they are comprised of), insist upon their modification, or demand an independent assessment of the accuracy of Company’s randomization tools. Where Employees are placed into an Employee Pool or Consortium Pool that includes employees regulated by multiple Agencies, the more stringent of the several applicable Agency standards shall be applied to Customer’s Employee Pool. Customer specifically acknowledges that all Employees are replaced into the random pool after each selection period, and as such, any given Employee may be selected for testing multiple times, even where they have recently tested.
Section 4.04 Approved and Alternate Collection Sites and Testing Laboratories. Through the Portal, Company shall refer Customer’s Employees to one of several urine and/or breath collection sites approved by any applicable Agency to receive or take urine and breath samples, which collection sites shall perform screenings or remit such samples to a third party laboratory to perform screenings and tests. Customer acknowledges that beyond confirming a site’s or laboratory’s certification by the DOT to perform such sample collection and/or testing, Company shall have no independent obligation to verify the credentials of its third party sites or laboratories. Customer shall be free to direct its Employees to a qualified collection site or laboratory of its own choosing outside the Portal, but shall be solely responsible for all costs and expenses incurred by such election (including processing and administrative fees charged by Company). Company shall be under no obligation to perform any coordination-related Services with respect to samples directed to sites or laboratories outside the Portal, including with respect to follow-up procedures, all of which Customer agrees to assume (except as the Parties otherwise agree in a separate writing, which may be by email). Where Customer elects to use an alternate approved laboratory, it shall be one of the following, or Company shall owe Customer no Services with respect to such Employee:
QUEST DIAGNOSTICS LABORATORY CORPORATION OF AMERICA
Section 4.04 Testing Procedures. Third party sample collection sites and laboratories shall establish their own procedures and practices relating to, among other things, criteria for establishing diluted samples, invalid specimens, substituted samples, acceptable levels of adulterants, storage and retention of specimens, and recordkeeping obligations. Company is not responsible for any third party site or laboratory’s compliance with Applicable Law, and any actions, claims, damages, or grievances Customer’s may have against such third parties shall be directed solely at such third parties.
Section 4.05 Cancelled Tests. Customer shall be solely responsible for directing its Employees who receive a cancelled test result (where a negative result is required) to immediately provide another testing specimen. While Company will not bill Customer for testing errors caused by the actions of third party collectors, labs, or other similar parties, Customer shall be responsible for any costs and charges resulting from the Customer’s Employee’s actions, including, but not limited to, specimen adulteration or any other factors resulting in an inconclusive or cancelled test, and Company shall bill Customer for same. Company shall be privileged to determine, in its sole reasonable discretion, whether Employee error or conduct is the proximate cause of any such cancelled or inconclusive test result.
ARTICLE V: REPORTING AND RECORDKEEPING
Section 5.01 Test Results Reporting. Upon receipt from the MRO of any positive, negative, or cancelled test result (including the refusal of an Employee to submit to testing), Company shall timely provide Customer with such information, which may include a copy of each drug or alcohol test performed for an Employee, through the Portal, as written evidence of the test and its result. In the event Customer receives any test result directly from the MRO or otherwise, Customer shall immediately forward such result to Company for recordkeeping purposes.
Section 5.02 Annual and Recurring Reports. For the duration of the Term, Company shall provide Customer with an annual report of testing, consisting of an aggregate statistical summary of results, and remit a copy of same to the U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, or to any other Agency entitled to such reporting. As the parties agree, and for an additional fee outlined in Company’s fee schedule, Customer may request that Company perform more frequent report generation and remittance Services. Upon termination, Company shall provide Customer (or a third party auditor requesting such information) and annual report at an additional fee, subject to Applicable Law.
Section 5.03 Record Retention and Transmission. Company shall maintain all information necessary and relevant to the operation of a drug and alcohol compliance program on Customer’s behalf, including, but not limited to, the names of employees in random pools, random selection lists, copies of notices, and positive, negative, and “refusal to test” individual test results. Where Company is required by law to transmit information to the Customer, it shall do so in a manner that ensures the information reaches Customer within the same time periods required under Applicable Law. On notice by the Customer, Company shall immediately transfer all records pertaining to Customer and its Employees to any other service agent (e.g. C/TPA) Customer designates. Company shall be permitted to charge a reasonable administration fee for conducting this transfer, but will not charge a fee for a release of the records.
ARTICLE VI: CONFIDENTIALITY
Section 6.01 Confidentiality. Company will take reasonable steps to maintain the confidentiality of information concerning Employee drug and/or alcohol test results generated pursuant to this Agreement, the identity and employment status of Employees, and any other similar nonpublic information (collectively, “Employee Information”), and shall not disclose Employee Information to any third party (including any representative of Customer not expressly authorized by Customer to receive such Employee Information) without Customer’s prior approval. Notwithstanding the foregoing, where disclosure of Employee Information is required under Applicable Law, Company shall timely comply with all such third party requests. Subject to Applicable Law, Company shall share Employee Information with contractors, employees with a need to know the information, and other third parties bound by duties of confidentiality no less stringent than those provided here. Per 49 C.F.R. §40.351, Company shall not provide individual test results or other confidential Employee Information to another employer without a specific, written consent from the Employee, will not use blanket consent forms authorizing the release of Employee testing information, and will establish and employ adequate confidentiality and security measures to ensure Employee Information is not available to unauthorized persons, which might include ensuring the physical security of records, sufficient access controls, and computer security measures to safeguard data in Company databases. Customer’s confidentiality obligations with respect to the Portal shall be governed by the Portal’s terms and conditions, incorporated herein by reference, as they may be amended from time to time.
ARTICLE VII: CUSTOMER OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES
Section 7.01 Customer Obligations. Customer acknowledges that it shall be solely responsible for the following during the Term of this Agreement:
(a) Confidentiality of Employee Information. Customer shall take all reasonable steps necessary to maintain the confidentiality of Employee Information and comply with all rules applicable to the transmission, storage, and maintenance of Employee Information.
(b) Compliance Program. Customer shall be responsible for establishing, updating, maintaining, and adhering to its own compliance with Applicable Laws, including, but not limited to 49 C.F.R. Part 40. Customer’s adherence to its own compliance program shall include ensuring that none of its Employees perform Safety-sensitive functions upon receiving a negative test or refusing to complete a test, until permitted to return to work under Applicable Law. Customer shall provide Company with Customer’s compliance policies and procedures upon request. Company is not responsible for reviewing Customer’s policies and procedures for compliance with Applicable Law.
(c) Employee Lists and Classification. Customer shall be solely responsible for identifying those Employees classified as Safety-sensitive or performing Safety-sensitive functions, for providing Company with a current and complete list of eligible Employees, and promptly removing Employees from and adding Employees to its list of Safety-sensitive Employees within the Portal. Company is not responsible for Customer’s failure to properly classify its Employees or maintain a current and updated list of Employees, and shall hold Company harmless from any damage Company experiences as a result of its own noncompliance with Applicable Law, pursuant to Section 7.02. Any update to Customer’s list of Employees shall occur no less frequently than on a monthly basis (except where there are no changes).
(d) No Prior Notice of Screening. Customer shall not take any action likely to result in its Employees being notified of their selection for drug and/or alcohol testing.
(e) Employee Testing. Customer is solely responsible for instructing its Employees to schedule and keep their test appointments, for incentivizing testing in its sole discretion and subject to Applicable Law, and for taking disciplinary actions when confronted with Employee non-compliance. Company is not responsible for facilitating the test appointment scheduling process beyond referring the Employees to eligible testing sites by way of the Portal.
(f) Non-Circumvention. Customer shall not communicate directly with the MRO or any similar service provider except on Company’s express prior written permission.
(g) FMCSA Clearinghouse Registration. Beginning January 6, 2020, commercial motor carrier employers are required to register for the FMCSA Commercial Driver’s License Drug & Alcohol Clearinghouse (the “Clearinghouse”) and comply with all its terms. Customer is solely responsible for registering as an employer with the Clearinghouse, for appointing a representative to serve as administrator (“Clearinghouse Administrator”), for replacing the Clearinghouse Administrator on a timely basis as necessary, for identifying candidates for employment for which pre-employment queries of the Clearinghouse are required, for ensuring prospective and active Employees consent to Clearinghouse queries, for running annual reports to verify whether information about the Customer has been reported, and other Clearinghouse-related obligations. Customer expressly acknowledges that Company is under a legal obligation to report to the Clearinghouse any Employee or Customer violations of applicable testing regulations, including: verified positive, adulterated, substituted controlled substance results; alcohol results in excess of 0.04 BAC; Employee refusals to take required drug or alcohol tests; and “actual knowledge” violations, which include on-duty drug and/or alcohol use, including DUI violations, use of alcohol within 4 hours of going on-duty, use of alcohol within 8 hours of a qualifying accident, and the use of a Schedule 1 drug or non-prescribed use of prescription medication.
Section 7.02 Indemnification; Indemnification Procedures. Customer agrees to indemnify, defend, and hold harmless the Company, including its officers, directors, shareholders, employees, agents, and other representatives, against all liability, demands, claims, losses, damages, or expenses (including costs of suit and attorney fees) that may occur directly or indirectly in connection with or related to Customer’s performance under this Agreement, and which is caused in whole or in part by the negligence, recklessness, or intentional conduct of the Customer (or Customer’s employees, contractors, agents, or other representatives).
As a condition precedent to Customer’s obligations under this Section, Company shall give Customer prompt written notice of any facts upon which Company intends to base a request for indemnification, including, but not limited to, a description of any third-party claim and the nature and amount of any damage, costs, or losses (to the extent known or suspected at the time of notice). Company shall promptly furnish to Customer copies of all documents received with respect to any third party claim. Customer’s duty to defend shall commence immediately upon receipt of notice of any applicable claim. Customer may assume, at its sole option, control of the defense, appeal, or settlement of any third party claim reasonably likely to give rise to an indemnification claim hereunder by sending written notice of the assumption to Company, acknowledging responsibility for the defense of all applicable claims, within ten (10) business days of Customer’s receipt of notice of any indemnifiable claim. Company shall fully cooperate with Customer in connection with any such defense, and may employ separate counsel to represent it, at any time, provided that Company is solely responsible for the costs and expenses of such separate counsel. Notwithstanding the foregoing, Company may elect to defend any claim against it with counsel of its own choosing, without Customer’s participation, if Customer fails or refuses to properly assume the defense. If Company controls its own defense, Customer shall reimburse Company promptly and periodically for all reasonable legal costs and remain responsible to Company for any losses owing to third party claims. Company shall not settle or compromise any third party claim without the prior written consent of Customer, which consent shall not be unreasonably withheld.
Section 7.03 Customer Representations. Customer represents and warrants the following:
(a) Capacity. Customer has the right to enter into this Agreement, to grant the rights granted in this Agreement, and to perform fully all of his/her/its obligations in this Agreement.
(b) Authorization. The execution of this Agreement by its Customer’s representative, whose signature is set forth at the end of this Agreement, has been duly authorized by all necessary corporate action.
(c) No Breach. Customer’s execution of this Agreement and its performance hereunder does not and will not conflict with or result in any breach or default under any other agreement to which Customer is subject.
ARTICLE VIII: MISCELLANEOUS
Section 8.01 Governing Law. This Agreement shall be governed in all respects by the internal laws of the State of California, without reference to principles of choice of law.
Section 8.02 Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any non-monetary obligation under this Agreement to the extent that such delay is caused by reason of acts of god, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, catastrophic weather events (including without limitation typhoons or earthquakes) or any other circumstances beyond the reasonable control, and not involving any fault or negligence, of the Delayed Party, as defined below (individually, a “Condition”). If any Condition occurs, the Party delayed or unable to perform (the “Delayed Party”), upon giving prompt notice to the other Party, shall be excused from such performance on a day-to-day basis during the continuance of such Condition (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis during the same period); provided, however, that the Delayed Party so affected shall attempt to avoid or remove such Condition as soon as reasonably possible, and both Parties shall proceed immediately with the performance of their obligations under this Agreement whenever such Condition is removed or ceases.
Section 8.03 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be either: (a) delivered by hand; (b) sent by email to the email address provided below; (c) sent by registered or certified mail, return receipt requested, postage prepaid; or (d) sent by an express courier, with written confirmation of receipt. Customer may opt-out of text messaging by revoking its consent through Company’s text messaging service (e.g. responding with “STOP”) or by contacting Company in the manner described in this Section. All such notices shall be delivered or sent to the address as follows (or to such other address or person as may be designated by a Party by giving written notice to the other Party pursuant to this Section).
If to Company: New Era Drug Testing, LLC
801 S. Glenoaks Blvd, Suite 200
Burbank, CA 91502
If to Customer: At the address provided adjacent to the signature lines.
Section 8.04 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect, and shall in no way be affected, impaired or invalidated.
Section 8.05 Amendment; Waiver; Remedies. Except as otherwise provided in this Agreement, this Agreement may not be amended or waived except by a writing signed by duly authorized representatives of the Parties. Notwithstanding the foregoing, the Company may unilaterally amend any exhibit to this Agreement through a separate writing without securing an amendment of this entire Agreement, and may attach such amended exhibits hereto to serve with the same operative force as the original exhibit. Company may modify its Services, including eliminating any aspect of its Services, on ten (10) calendar days’ notice to Customer, without such amendment constituting a breach of this Agreement. Failure to exercise any right under this Agreement shall not constitute a waiver of such right. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law.
Section 8.06 Attorneys’ Fees. If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
Section 8.07 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
Section 8.08 Dispute Resolution. In the event of any dispute concerning this Agreement, the Parties agree to attempt to resolve all disputes, claims, or controversies arising out of or relating to this Agreement by mediation, through a mediator mutually approved by the Parties. During the mediation process, the Parties will share any costs and fees equally, other than each party’s attorneys’ fees. In the event mediation does not completely resolve any lingering claim, dispute, or controversy, or the parties are unable to mutually select a mediator in good faith, the Parties shall submit the matter to binding arbitration in Los Angeles County, California. The arbitration shall be administered by any arbitration company mutually agreed upon by the Parties, in good faith. Judgment on the award may be entered in any court having jurisdiction over the subject matter of the controversy. The Parties shall preserve the confidentiality of the arbitration award, including the nature and content of the proceedings leading to the arbitration award.
Section 8.09 Entire Agreement. This Agreement (including its exhibits) supersedes all prior agreements, understandings, and communications between the Parties, whether written or oral, express or implied, relating to the subject matter of this Agreement and is intended as a complete and final expression of the terms of the agreement between the parties. All previous agreement(s) between the Parties relating to the provision of Services, if any, is hereby terminated. To the extent this Agreement and its exhibits conflict with any other agreements between the parties, this Agreement shall control. The recitals shall be read as material provisions of this Agreement.
Section 8.10 Further Assurances. Each party shall execute and deliver to the other (or to any applicable third-party) such instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement. This Section shall not be construed as creating any obligation in Company to complete, submit, or file reports or other documents or instruments to any third party, including any Agency, except where such obligation is provided as part of the Services, or which are required by Applicable Law.
Section 8.11 Limitation on Liability. EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.02, EACH PARTY’S LIABILITY SHALL BE CONFINED TO ACTUAL DAMAGES AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND.
Section 8.12 No Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Company may assign its rights and obligations under this Agreement to a parent or subsidiary or to a successor, or by way of merger, sale of all or substantially all of its assets or business or otherwise. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void. All of the terms and provisions of this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 8.13 Survival. The terms of this Agreement, including, but not limited to Sections 2.03 (Effects of Termination), 3.04 (Billing & Invoicing; Suspension of Services); 6.01 (Confidentiality), and 7.02 (Indemnification and Procedures), as well as all other provisions that by their nature, and as consistent with the intention of the Parties, ought to remain enforceable beyond the Termination Date, shall survive the termination of this Agreement.
IN WITNESS WHEREOF, New Era Drug Testing LLC and Customer have caused this Agreement to be executed by their duly authorized representative.
DOT Compliance.us is an affiliate of New Era Drug Testing LLC or Consortium Pool is an affiliate of New Era Drug Testing LLC