Terms and Conditions

1. GENERAL

1. Unless otherwise agreed to in writing, all offers and services and all resulting contractual relationships between Materials Analytical Services, LLC and the MAS Certified Green® Low VOC Materials Certification Program (hereafter “MAS” or the “Program”), and any person or entity applying for certification services (the “Client”) shall be governed by these Terms and Conditions and the General Terms and Conditions of Service found at www.mastest.com.

2. These Terms and Conditions, and, as applicable, the Quote, the Program Application, the Codes of Practice, and the MAS Certified Green® and MAS Certified Green Plus™ Name and Logo Use Terms and Conditions and their use constitutes the entire agreement (the “Contract”) between the Client and MAS with respect to the subject matter hereof. Client’s agreement to these Terms and Conditions and applicable documents may be express by signing the VOC Emissions Testing Fee Quotation, or implied by the receipt of the Clients sample(s) by MAS. Unless otherwise provided, no variation to the Contract shall be valid unless in writing and signed by or on behalf of both parties.

3. Where a Certificate will be issued to the Client, MAS will provide the Services using reasonable care and skill and in accordance with the Program’s Policies and Procedures then in force. A copy of such Policies and Procedures, and any amendments to them as may be issued from time to time, will be supplied by MAS to the Client upon request at the commencement of the Services.

2. DEFINITIONS

“Accreditation Body” means any public or private organization having the authorization to appoint Certification Bodies;

“Application” means the Client’s request for inclusion in the Program and the services offered;

“Certificate” means the Certificate of Compliance issued by the competent Certification Body;

“Certification Body” means any MAS entity having the authorization to issue certificates;

“Policies and Procedures” means those codes of practice including applicable testing standards, issued or referenced by a Certification Body in accordance with the relevant certification scheme;

“Quote” or “Proposal” means the outline of services to be rendered by MAS to the Client;

“Report of Findings” means a report issued by MAS to the Client presenting the results of the testing services. This report is also forwarded to the Program for evaluation of the conformance of testing results to the MAS certification standards; 

The MAS Certified Green® Low VOC Materials Certification Program includes the MAS Certified Green® and MAS Certified Green Plus™ certifications and all documents and terms and conditions related thereto;

“MAS Certified Green® and MAS Certified Green Plus™ Name and Logo Use Terms and Conditions” means the terms and conditions for use of the Program trademarks. www.mascertifiedgreen.com

3. SERVICES

3.1 These Terms and Conditions cover the following services (the “Services”):

(a) Testing and analysis of Client’s product(s) according to the Policies and Procedures of the Program;

(b) Issuance of product certification under the terms of the Program.

3.2 MAS will provide services using reasonable care and skill and in accordance with Client’s specific instructions as confirmed by MAS or, in the absence of such instructions:

(a) The terms of any standard order form or standard specification sheet of MAS; and/or

(b) Any relevant trade custom, usage or practice; and/or

(c) Such methods as MAS shall consider appropriate on technical, operational, and/or financial grounds.

3.3  On completion of certification testing and evaluation, MAS will prepare and submit to the Client a Report of Findings. Information stated in Reports of Findings is derived from the results of testing procedures carried out in accordance with the instructions of Client, and/or MAS’s assessment of such results on the basis of any technical standards, trade custom or practice, or other circumstances which should in MAS’s professional opinion be taken into account. Any recommendation given in a report is not binding on MAS and the decision to issue a Certificate is at the sole discretion of the Program.

3.4  Client acknowledges that MAS, either by entering into the Contract or by providing the Services, neither takes the place of Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates, or undertakes to discharge any duty of Client to any third party or that of any third party to Client.

3.5 Certification, suspension, withdrawal, or cancellation of a Certificate shall be in accordance with the applicable Program Policies and Procedures.

3.6 MAS may delegate the performance of all or part of the Services to a properly accredited agent or subcontractor and Client authorizes MAS to disclose all information necessary for such performance to the agent or subcontractor.

3.7  The Program operates independently of the MAS Emissions Testing Group. Following testing and reporting, the Program will review the test results and other information regarding the tested product and make a determination as to whether Client’s product meets the criteria of the Program. Should the Program find that the Client’s product meets the applicable criteria, the Program will issue certification and provide any necessary paperwork to the Client for inclusion in the Program. Participation in the Program must be renewed annually by recertifying the Client’s product through emissions testing.

4. OBLIGATIONS OF THE CLIENT

4.1 The Client shall ensure that all product samples, assistance, information, records, documentation and other necessary information are made available to MAS when required by MAS, including the assistance of properly qualified, briefed, and authorized personnel of the Client. 

4.2  So far as it is permitted by law, the Client acknowledges that it has not been induced to enter into the Contract in reliance upon, nor has it been given any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in these Terms and Conditions and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights, or remedies which it might otherwise have had in relation thereto. Any conditions or stipulations included in the Client standard form documents which are inconsistent with, or which purport to modify or add to, these Terms and Conditions shall have no effect unless expressly accepted in writing by MAS.

4.3 The Client shall take all necessary steps to eliminate or remedy any obstacles to or interruptions in the performance of the Services. Client will supply, if required, any special equipment and personnel necessary for the performance of the services

4.4  In order to allow MAS to comply with applicable health and safety legislation, the Client shall inform MAS in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing including, for example, presence of risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons, and provide MAS with all available information regarding known or potential hazards likely to be encountered by MAS personnel during testing. This information shall include, but is not limited to, Safety Data Sheets, technical sheets, and product sheets. 

4.5 Client represents that the information and samples supplied by it or its agents to MAS are accurate and complete, and acknowledges that MAS is relying upon such information and samples or data in preparation of proposals and subsequent testing without further verification by MAS as to their accuracy and completeness. The Client agrees to hold MAS harmless and to indemnify MAS from any liability of whatever kind or nature, including but not limited to court costs and reasonable attorney’s fees if information or samples provided by the Client are inaccurate or incomplete.

4.6 Client hall be responsible for keeping a record of all complaints made or known to it relating to product certification claims associated with conformance to Program standards, and shall make these records available to MAS when requested. 

4.7  The Client shall immediately inform MAS of any and all changes to their certified products which may affect their emissions profiles, including but not limited to, changes in product constituents, vendors, and production operations. Any breach of this obligation to inform may lead to the withdrawal of certification.

5. FEES AND PAYMENT

5.1 The fees quoted to the Client cover all costs leading to completion of the testing, the submission of a Report, and certification of the product or products. Fees are based on the charge rate applicable at the time of submitting a proposal to the Client, and such quoted fees are valid for 60 days from the date of the quote/proposal. MAS reserves the right to increase fees following the 60 day period. MAS may also increase its fees if the Client’s instructions change or are found to be not in accordance with the initial details supplied to MAS prior to providing the relevant fee quotation. Clients will be notified of any increase in fees.

5.2  Additional fees shall be charged for operations that are not included in the Proposal and for work required due to the identification of non-conformances. These will include, without limitation, costs resulting from: 

(a) additional work due to suspension, withdrawal and/or reinstatement of a certificate;

(b) compliance with any subpoena for documents or testimony relating to work performed by MAS;

(c) retesting of a product due to non-compliance with the Codes of Practice, changes in product content, and/or addition of products to existing product certification brackets.

5.3  Without prejudice to Clause 5.2, additional fees will be payable at MAS’s charging rates in force from time to time in respect to rush orders, cancellation, or rescheduling of services or any partial or full repeats of the operation which are required as set out in the Program’s Policies and Procedures.

5.4  Invoices will generally be issued upon project completion unless the Client has made arrangements with MAS for earlier invoice issuance. No reports or project results will be released to the Client in final form until:

(a) Client submits a signed Purchase Order for the full amount of the project, or

(b) Client provides MAS with a valid credit card for payment of quoted project fees plus a 3.0% convenience fee, or

(c)  Client electronically transfers sufficient funds to MAS according to the instruction supplied by MAS, or

(d)  Payment of the project invoice is received.

All fees shall be paid in U.S. Dollars unless otherwise approved by MAS inwriting. Invoices submitted in accordance with these Terms are due and payable to MAS at its offices, Net 30, and Client agrees to pay reasonable collection costs, if necessary, in the event of non-payment. Failure to pay by the Due Date on the invoice will result in interest charged at the rate of 1.5% per month (or other such rate as may be established in the invoice) from the Due Date up to and including the date payment is actually received.

5.5  Any use by the Client of any report or certification or the information contained therein is conditional upon timely payment of all fees and charges. In addition to the remedies set out in the Codes of Practice, MAS reserves the right to cease or suspend all work and/or cause the suspension, revocation, or withdrawal of any certification for a Client who fails to duly pay an invoice.

5.6  Client shall not be entitled to retain or defer payment of any sums due to MAS on account of any dispute, counter claim, or set off which it may allege against MAS.

5.7  MAS may elect to bring action for collection of unpaid fees in any court having competent jurisdiction.

5.8 Client shall pay all MAS’s collection costs including attorney’s fees and related costs.

6. DISPOSITION OF SAMPLES

6.1  MAS shall retain in its archives for 30 days all samples not consumed during the testing process, unless the Client requests that MAS archive samples for a longer period of time. Requests for additional archive time will incur a fee for storage. 

6.2  At the end of the archive period, MAS will return the sample to the Client at Client’s expense, donate the sample to a local charitable organization, dispose of the sample, or recycle the sample. 

6.3  When submitted samples are deemed hazardous by either MAS or the Client, MAS will have the sample either recycled or disposed of in an appropriate manner according to law or good work practice. A disposal fee may be charged to the Client.

6.4  At the time the final report is issued to the Client, MAS will provide a Product Disposition Following Emissions Testing form on which to indicate to MAS how the Client wants the sample handled.

7. REPORT AND CERTIFICATE OWNERSHIP AND INTELLECTUAL PROPERTY

Any document, including but not limited to any Report or Certificate, provided by MAS and the copyright and trademarks contained therein shall be and remain the property of MAS, and the Client shall not alter or misrepresent the contents of such documents in any way. Any unauthorized alteration, forgery, or falsification of the content or appearance of reports, certificates, or intellectual property issued to the Client by MAS is unlawful and offenders may be prosecuted to the fullest extent of the law. The Client shall be entitled to make copies for its internal purposes only. Duplicates of certificates are available upon request for external communication purposes. By participating in the Program, Client gives permission to MAS to post any certificates and Client’s corporate and product information on the MAS Certified Green® website.

8. COMMUNICATION

The Client may promote its certification in accordance with the terms set out in the MAS Certified Green® and MAS Certified Green Plus™ Name and Logo Use Terms & Conditions governing the use of the certification marks. Use of MAS’s corporate name or any other registered trademarks for advertising purposes is not permitted without MAS’s prior written consent.

9. CONFIDENTIALITY

9.1  As used herein, “Confidential Information” shall mean any oral or written proprietary information that a party may acquire from the other party pursuant to the Contract or information as to the business of the other party provided, however, that Confidential Information shall not include any information which (1) is or hereafter becomes generally known to the public; (2) was available to the receiving party on a non-confidential basis prior to the time of its disclosure by the disclosing party; (3) is disclosed to a party by an independent third party with a right to make such disclosure.

9.2  Unless required by law or by a judicial, governmental or other regulatory body, neither party nor their agents or subcontractors shall use the Confidential Information other than for the purpose of the Contract nor disclose the other’s Confidential Information to any person or entity without the prior written approval of the other party except as expressly provide for herein.

10. DURATION AND TERMINATION

10.1 Unless otherwise agreed, certification of a product or products by the Program is valid for 12 months from the date printed on the Certificate of Compliance issued by the Program. 

10.2 MAS may, at any time during the valid period of certification, terminate the Contract if the Client is in material breach of its obligations and, following receipt of notice of such breach, the Client fails to remedy to the satisfaction of MAS such breach within 30 days. Material breach includes, but is not limited to:

(a) failure to pay the full amount of fees charged for conducting certification testing;

(b) improper or unauthorized use of the MAS Certified Green® Mark as detailed in the MAS Certified Green® and MAS Certified Green Plus™ Name and Logo Use Terms and Conditions document provided to the Client.

10.3  Either Party is entitled to immediately terminate the provision of Services in the event of any engagement with creditors, bankruptcy, insolvency, receivership, or cessation of business by the other party.

10.4  Unless otherwise agreed to in writing, the rights and obligations of the parties defined in clauses 8, 9, 12, 13, and 14 shall apply notwithstanding the completion of Services or termination of the contract.

10.5  Where the Client transfers its activities to another organization, the transfer of the Certificate is subject to the Certification Body’s prior written consent. Where such consent is given, the use of the Certificate by such new organization shall be governed by the Contract.

10.6 Upon suspension, withdrawal, or termination of certification, Client shall discontinue its use of all advertising materials that contains any reference thereto and take action as required by MAS.

11. FORCE MAJEURE

If MAS is prevented from performing or completing any service for which the Contract has been made by reason of any cause whatsoever outside the control of MAS, including but not limited to, acts of god, war, terrorist activity or industrial action; failure to obtain permits, licenses, registration or accreditations; illness, death, or resignation of personnel; pandemic or epidemic; or failure by the Client to comply with any of its obligations under the Contract, the Client will pay to MAS:

(a) The amount of all abortive expenditures actually made or incurred;

(b) A proportion of the agreed fees equal to the proportion (if any) of the service actually carried out;

and MAS shall be relieved of all responsibility whatsoever for the partial or total nonperformance of the required Services.

12. LIMITATION OF LIABILITY AND INDEMNITY

12.1 MAS undertakes to exercise due care and skill in the performance of the Services and accepts responsibility    only in cases of proven negligence.

12.2 Nothing in these Terms and Conditions shall exclude or limit MAS’s liability to the Client for death or personal injury or for fraud or any other matter resulting from MAS’s negligence for which it would be illegal to exclude or limit its liability.

12.3 Subject to Clause 12.2, the total liability of MAS to the Client with respect to any claim for loss, damage, or expense of any nature and however arising shall be limited, in respect of any one event or series of connected events, to an amount equal to the fees paid to MAS under the Contract.

12.4 Subject to Clause 12.2 MAS shall have no liability to the Client for claim for loss, damage, or expense unless legal proceedings are commenced within one year after the date of the performance by MAS of the service which gives rise to the claim or in the event of any alleged non-performance within one year of the date when such service should have been completed.

12.5 Subject to Clause 12.2, MAS shall not be liable to the Client nor to any third party:

(a) for any loss, damage, or expense arising from the (i) failure by Client to comply with any of its obligations herein, (ii) any actions taken or not taken on the basis of the Reports or the Certificates; and (iii) any incorrect results, reports, or certificates arising from unclear, erroneous, incomplete, misleading or false information provided to MAS;

(b) for loss of profits, loss of production, loss of business, or costs incurred from business interruption, loss of contracts, loss of expectation, loss of use, loss of goodwill or damage to reputation, loss of anticipated savings, cost or expenses incurred in relation to making product recall, cost or expenses incurred in mitigating loss and loss or damage arising from the claims of any third party (including without limitation product liability claims) that may be suffered by the Client; and

(c) any indirect or consequential loss or damage of any kind (whether or not falling within the types of loss or damage identified in (b) above.

12.6 Except for cases of proven negligence or fraud by MAS, the Client further agrees to hold harmless and indemnify MAS and its officers, employees, agents, or subcontractors against all claims (actual or threatened) by any third party for loss, damage, or expense of whatever nature including all legal expenses and related costs and however arising (i) relating to the performance or non-performance, of the Services or (ii) out of or in connection with the Client’s product, process or service the subject of the certification (including, without limitation, product liability claims).

12.7 Each party shall take out adequate insurance to cover its liabilities under the Contract.

13. MISCELLANEOUS

13.1 If any one or more provisions of these Terms and Conditions are found to be illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 

13.2 Except as expressly provided for herein, the Client may not assign or transfer any of its rights hereunder without MAS’s prior written consent.

13.3 Neither party shall assign the Contract without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Any assignment shall not relieve the assignor from any liability or obligation under the Contract.

13.4 A Party giving notice under these General Conditions must do so in writing with such notice being hand delivered or sent by prepaid, first class post, facsimile or courier to the address for the other Party as set out in the Program Application. A notice will be deemed received by the other Party:

(a) if hand delivered, on the date of delivery

(b) if sent by first class post, three days after the date of posting;

(c) if sent by facsimile, the time indicated on the sending Party’s facsimile transmission confirmation message:

13.5 The Parties acknowledge that MAS provides Services to the Client as an independent contractor and that the Contract does not create any partnership, agency, employment or fiduciary relationship between MAS and the Client.

13.6 Any failure by MAS to require the Client to perform any of its obligations under these Terms and Conditions or the Contract shall not constitute a waiver of its right to require performance of that or any other obligation.

14. DISPUTES

Unless specifically agreed otherwise, all disputes arising out of or in connection with these General Conditions or the Contract shall be governed by the laws of the State of Georgia.