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DRUG PROOF LLC

SERVICE CONTRACT AND TERMS OF SALE

 

1. DEFINITIONS. For the purposes of this Contract for services, the following terms shall have the meanings as set forth below:

    1. “Contract” shall include those documents setting forth the
      Terms of Use, Privacy Policy, these Terms and Conditions;
    2. “Company” shall mean Drug Proof LLC and its directors, officers, members, managers, employees, agents, and representatives;
    3. “Customer” shall be you, the person or entity purchasing the
      Service from the Company;
    4. “Contactee” and/or “Contactees” shall be any and all persons
      identified and/or enrolled by Customer in the Service to be
      contacted by the Company as a part of the Service;
    5. “Service” shall be the Company’s random selection of Contactee
      and/or Contactees as well as the contacting of Contactee and/or Contactees via email, text, telephone, and/or any other method,
      along with the Company’s serving as agent and/or representative
      for the limited purpose of receiving and storing the results of the Contactee/Contactees voluntary drug screens performed by a
      laboratory or other business that is not a health care provider
      and/or that, in screening the Contactee for drugs is not providing
      or furnishing health care services or supplies to the Contactee;
    6. “Parties” shall be the Company and the Customer, the parties
      to this Contract;
    7. “Term” shall be the duration of the Service agreed upon by the Parties.

 

2. LIMITED REPRESENTATIVE. Customer agrees and understands that Company shall act as Customer’s representative for the limited purpose of receiving and storing results from Contactees’ drug screens on the Company’s website for the Customer’s benefit, and that Company is in no way an agent or representative of the Customer for any other purpose.

 

3. ELECTRONIC TRANSACTIONS. The Parties agree to conduct transactions via electronic means.

 

4. ACCEPTANCE. By using the Website or by clicking to accept or agree to the Terms of Use when this option is made available, the Customer accepts and agrees to be bound and abide by thes Contract. The Parties expressly acknowledge and agree that these Terms and Conditions shall govern the Contract unless there is a writing signed by both parties that expressly states otherwise.

 

5. COMPANY AND ITS EMPLOYEES. Company shall be an independent contractor in the performance of the Service and shall not hold itself out as an agent of Owner except for the limited purpose of receiving and storing the results of Contactees’ voluntary drug screens.


6. INDEMNITY. Customer hereby agrees to indemnify, defend and hold harmless Company , its affiliates, licensors, service providers, its respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) from and against any and all liabilities, losses, claims, damages, suits, demands, causes of action, costs, deficiencies and expenses of every kind and nature whatsoever (including, but not limited to, reasonable attorney’s fees and disbursements through appeal) arising, directly or indirectly, from or in connection with any material breach of the Contract or relating to Customer’s violation of these Terms of Use or Customer’s use of the Website. This indemnity, as defined above, shall include, but is not limited to, claims or damages brought by Contactees, third persons, subcontractors, or agents or employees of either of the Parties, damage to or destruction of any property, real personal or otherwise (not including loss of use thereof), or any other matters in any way connected with the Service.


7. LIMITATION ON LIABILITY. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.


8. LICENSES, PERMITS AND NOTICES. Except as otherwise provided in the Contract, Customer shall obtain all required consents, approvals, licenses and permits including but not limited to the consent and approval of any and all Contactees for Customer’s enrollment of Contactee(s) in Service.


9. FEES AND EXPENSES. In consideration of the provision of the Services by the Company and the rights granted to Customer under this Agreement, Customer shall pay the fees as agreed and according to the price list published on the Website as of the effective date of the Contract that is fully incorporated to the Contract as if set forth fully herein.


10. FIXED PRICE BASIS. The total fees for the Services shall be the amount set forth in the the price list published as of the effective date of the Contract on the Website that is fully incorporated to the Contract as if set forth fully herein.


11. RATE INCREASE. The parties agree that after the initial Term of the Contract, Company may increase its standard fee rates specified in upon thirty (30) days' prior written notice to Customer; provided, that: (a) such increases occur no more frequently than once per year; and (b) If such increase is not acceptable to Customer, Customer may, within thirty (30) days following receipt of such notice, terminate this Agreement by giving thirty (30) days written notice to Company.

 

12. Return/Refund. All sales are final.


13. TAXES. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to the services provided under this Agreement are for the Customer's account, and Customer hereby agrees to pay such taxes.


14. PAYMENT. The Customer shall pay the amounts/fees due and owing under this Agreement as follows: (1) for all single “one-time” tests, the Customer shall pay the fee listed in the price list on the Website on the effective date of the Contract immediately, via debit card, credit card or other electronic transfer of funds, upon the Customer’s enrollment in the Service; (2) for all random drug testing plans over a Term agreed to by the Parties, the Customer shall pay the monthly installment fee listed in the price list on the Website in equal monthly installments throughout the Term with the initial monthly installment due on the Effective Date of the Contract and with the each subsequent monthly installment due on the same day of the month as is the day of the Effective Date (or the day closest to the day of the Effective Date) throughout the Term. (For example, if the effective date of the contract is January 28th, then each monthly installment shall be due on the 28th day of each successive month throughout the term.) For all random drug testing plans, the Customer shall pay each monthly installment in advance via debit card, credit card, or other electronic transfer of funds. All payments hereunder shall be in US dollars and made by credit/debit card, or other electronic transfer of funds.


15. INVOICE DISPUTES. The Customer shall notify the Company in writing of any dispute with any charge within seven (7) days from the date of such charge. charges for which no such timely notification is received shall be deemed accepted by the Customer as true and correct and the Customer shall pay all amounts due. The parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, each Party shall continue performing its obligations under the Agreement during any such dispute, including, without limitation, payment by the Customer of all undisputed amounts/fees due and payable under this Agreement.


16. NO SET-OFF. The Customer shall not withhold payment of any amounts/fees due and payable under this Agreement by reason of any set-off of any claim or dispute with the Company, whether relating to the Company's breach, bankruptcy or otherwise.


17. FURTHER ASSURANCES. Each of the Parties hereto shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be required to carry out the provisions hereof and of the Privacy Policy and Terms of Use.


18. TERMS OF USE AND PRIVACY POLICY. Customer agrees and understands the Terms of Use and the Privacy Policy of the Website that are included with this Agreement herebelow and are that are incorporated fully herein.


19. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).


20. INTERPRETATION. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Terms of Use, the Privacy Policy, the price list published on the Website, and the schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.


21. HEADINGS. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.


22. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.


23. ENTIRE AGREEEMENT. This Contract Agreement, together with The Terms of Use and the Privacy Policy, and any other documents incorporated herein by reference and all related exhibits and schedules, and the price list published on the Website constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement, the Terms of Use, the Privacy Policy, and the related exhibits and schedules (other than an exception expressly set forth as such in the schedules), the statements in the body of this Agreement shall control.


24. AMENDMENT AND MODIFICATION. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.


25. WAIVER. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.


26. EQUITABLE REMEDIES. Each party hereto acknowledges that a breach or threatened breach by such party of any of its obligations under this Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from the courts located in the jurisdiction and venue agreed by the parties in paragraph 30 of this agreement. .


27. ASSIGNMENT. Neither party may assign any of its rights or delegate any of its obligations hereunder without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder.


28. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.


29. NO THIRD-PARTY BENEFICIARIES. The Parties agree and understand that the Customer may utilize the Service to notify any and all Contactees that the Customer requires or requests such Contactee (or Contactees) voluntarily to submit to a drug screen. The Parties further agree and understand that the Company shall act as the Customer’s agent for the limited purpose of receiving and storing results of the Contactee’s (or Contactees’) voluntary drug tests. The Parties further agree and understand, however, that this Contract is for the benefit of the Customer and the Company, and that no third party, including by not limited to any third party Contactee, holds any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.


30. GOVERNING LAW. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule whether of the State of Alabama or any other jurisdiction.


31. SUBMISSION TO JURISDICTION. Any legal suit, action or proceeding arising out of or based upon/relating to this Agreement, the Terms of Use, the Privacy Policy, or the transactions contemplated hereby or thereby may be instituted in the courts of the State of Alabama in the venue of the County of Limestone, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.


32. WAIVER OF JURY TRIAL. Each Party acknowledges and agrees that any controversy which may arise under the Contract, this Agreement or the Terms of Use or the Privacy Policy is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, the Terms of Use or the Privacy Policy or the transactions contemplated hereby or thereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.


33. FORCE MAJEURE. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The party suffering a Force Majeure Event shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.


34. TIME OF THE ESSENCE. Time shall be of the essence in this Agreement.

 

35. DEFAULT. If Customer defaults on his/her obligations under this Agreement by failing to make payment in accordance with the terms of the Contract, or by failing to comply with any provisions hereof or of the Privacy Policy, or of any related contract, or invoice, Company may at its option, in addition to any other remedies, cancel or delay the Customer’s Service, Customer shall remain liable for all unpaid accounts in the event that Customer fails to make payment in accordance with the terms of this agreement or to make payment according to the term of any related contract, invoice or lease, the account shall be deemed to be delinquent. Customer shall pay all collection costs and expenses, including reasonable attorney’s fees, to Company in Company’s collecting or attempting to collect such account(s).

 

36. COMPLIANCE WITH APPLICABLE LAWS. Customer shall comply with all applicable statutes, laws, ordinances, codes, contracts, rules, regulations, proclamations and other governmental requirements, and all provisions required thereby to be included in this Contract are incorporated by reference.

 

37. RIGHTS, REMEDIES AND WARRANTIES. Each party’s rights and remedies under this Contract and each warranty made one party to another shall be cumulative and in addition to any other or further rights, remedies or warranties under this Contract or provided by law or in equity.

 

38. Test Results. Drug Proof, LLC is not a laboratory and is not responsible for the testing methodology of any laboratory.

 



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