Terms & Conditions
TERMS AND CONDITIONS – Client and 4th Strand agree that upon acceptance of the Evaluation Request Form (“ERF”) or Proposal, receipt of Client product samples and all required information, Client payment for Services and acceptance of these Terms and Conditions, 4th Strand shall provide to Client the Services agreed to by the parties in the ERF or Proposal.
1. Definitions – (a) “Client” means the party which is requesting the Services to be performed by 4th Strand as identified in the ERF or Proposal. (b) “Services” means and is limited to (i) completion of such documents as determined by 4th Strand are required prior to the performance of the requested Services (ii) performance of the Services in accordance with the description set out in the ERF or Proposal and such other required associated procedures and matters as are determined by 4th Strand, and (iii) preparation and delivery to Client of the Report. (c) “ERF” means the written and/or electronic testing submittal form that is required for participation in a retailer product line review (“PLR”). (d) “Proposal” means a written proposal submitted to Client by 4th Strand. (e) “Report” means the report issued by 4th Strand to Client containing the results of the Services provided to Client as a part of the ERF or Proposal. (f) “Premises” means the location or locations where the evaluation(s) will take place. (g) “PLR” means a retailer category or product line evaluation for which 4th Strand is responsible for managing the relative product performance aspect of the evaluation for the retailer.
2. Performance of Services – 4th Strand will perform the Services upon the Terms and Conditions set forth herein. The Services will be completed in accordance with the terms as set forth in the ERF or Proposal, or as otherwise mutually agreed to in writing by both of the parties.
3. Pricing and Payment – The pricing for the Services shall be valid for thirty (30) days from the date of submission of the Proposal to Client by 4th Strand. In the case of an ERF, the pricing for the Services shall be valid for the duration of the specific PLR and for up to thirty (30) days after the completion of the specific PLR, which is defined to end once PLR line card decisions have been made by the retailer. Client will pay 4th Strand for performance of the Services in accordance with the agreed upon terms and pricing as provided in the ERF or Proposal plus all applicable taxes.
4. Invoices and Currency – Invoices for Services are due and payable upon acceptance of the ERF or Proposal. Unless otherwise specified, references to currency are in US dollars.
5. Delay – 4th Strand shall not be responsible for any delays in the completion of Services (i) directly or indirectly arising from matters beyond its control, including, without limitation, the following: fires, floods, earthquakes, severe weather conditions, disasters, other acts of God, cyber-attacks, computer viruses or other malicious code, acts of sabotage, telecommunications network interruptions or outages, power outages, riots, wars, acts of terrorism, operation of law, strikes, governmental action or regulation, and shortage of labor, fuel, materials, supplies or transportation; or (ii) caused by Client and/or any Client representative’s inability or delay in providing any information, data, assistance and/or samples or access to Premises required for the performance of the Services.
6. Standards (Proposal) – During the performance of the Services for Proposal work, 4th Strand shall take into account the requirements of such applicable standards which Client specifies in the Proposal, if applicable. It is the sole responsibility of Client to determine which standards may be applicable and 4th Strand shall conduct the Services in accordance with the standards and protocols specified by Client and agreed to by 4th Strand. Client acknowledges that it is Client’s sole responsibility to provide its own solutions to any problems relating to the sample(s) as revealed in the 4th Strand Report.
7. Standards (ERF) – During the performance of the Services for ERF work, 4th Strand shall take into account the requirements of such applicable standards as specified by the retailer for each specific product in each specific PLR. Client acknowledges that its suggested standards and/or protocols might or might not be used in the testing process, and that additionally, the utilized testing standards and/or protocols will not be shared with Client. Lastly, Client acknowledges that it is Client’s sole responsibility to provide its own solutions to any problems relating to the sample(s) as revealed in the 4th Strand Report.
8. Subcontracting – Client agrees that 4th Strand has the right to delegate or subcontract performance of all or part of the Services to a third party and Client here by consents thereto.
9. Course of Work – 4th Strand shall not be required to provide advice as to any other possible technical solutions and technical restrictions not listed in the ERF or Proposal, unless otherwise agreed to in writing by 4th Strand. 4th Strand shall not be responsible for advising Client on any other issues relating to the sample(s) except as set out in the ERF or Proposal. The Report shall describe the results as determined by 4th Strand only in connection with the Client’s samples tested by 4th Strand, and the results shall be valid only at the time Services are performed by 4th Strand. The results set forth in the Report are not indicative or representative of the quality or characteristics of the lot from which a sample has been taken. Client acknowledges that it will be Client’s responsibility to provide solutions to any problems relating to the products as revealed in any Report or otherwise conveyed by 4th Strand to Client. 4th Strand does not warrant that the Services will achieve Client’s objectives. 4th Strand shall not be liable for any direct or indirect damage or loss resulting from the failure of 4th Strand to provide the Services within any time period for completion of such Services estimated by 4th Strand.
10. Client’s Obligations – Client shall provide all materials, samples, data, technical information, and assistance as requested by 4th Strand relating to the performance of the Services. Client shall not assign or otherwise transfer, in whole or in part, its right, title and interests set forth herein or in any Report or other materials provided by 4th Strand to Client in connection with the Services, without the prior written authorization of 4th Strand. Client acknowledges and agrees that the Report and the results related to the Services are being provided by 4th Strand for Client’s internal use only and any Report or results provided by 4th Strand shall not be published by Client nor shall they be used by Client in any manner on product packaging or in marketing or advertising materials without first obtaining the written consent of the other party. If Services are conducted as a part of a PLR, Client acknowledges that its test results will be shared with the retailer in question. Client agrees and acknowledges that 4th Strand shall have the right to use in any way it chooses any protocol and practices provided by Client and any protocol and practices developed either by 4th Strand alone or jointly by Client and 4th Strand. The protocols, test data, test results and any other data generated by 4th Strand in connection with the Services provided shall remain the sole and exclusive property of 4th Strand.
11. Confidentiality – Confidential Information means testing protocols and practices developed or provided by 4th Strand and any information provided by the disclosing party which is marked as confidential. 4th Strand and Client shall take all reasonable steps to protect the Confidential Information of the disclosing party.
12. Advertising – Client shall not use 4th Strand’s name for advertising or promotional purposes without first obtaining written consent.
13. Trademarks – Client shall not use trademarks belonging to 4th Strand without first obtaining written consent.
14. Termination – (a) 4th Strand shall have the right to terminate the Services immediately if, prior to completion of the Services, Client declares bankruptcy, issues a proposal to its debtors, goes out of business, undergoes liquidation whether compulsory or voluntary, or has a receiver appointed over all or part of its assets. (b) If Client fails to make a past due payment in full within seven (7) days after receiving formal written notice from 4th Strand, 4th Strand shall have the right to terminate any and all other agreements in effect for Services with Client. (c) Upon termination of the Services for any reason, Client shall pay to 4th Strand (i) for the value of all the Services provided to Client as of the effective date of termination and accrued expenses as of the effective date of termination and (ii) cost of all custom work conducted by 4th Strand and any custom equipment manufactured or purchased in preparation for performance of Services. Client expressly acknowledges that 4th Strand is under no obligation to keep any samples longer than fifteen (15) days after completion of the Services. If Client does not collect samples from the Premises within this time period, 4th Strand may unilaterally remove or destroy the samples, at Client’s expense if applicable.
15. Limited Warranty – 4th Strand warrants solely to Client that the Report it shall issue in connection with these Services is, in respect of samples provided by Client, free of any material error or omission caused by the negligence of 4th Strand. If Client wishes to assert a claim for breach of this warranty, it must: (i) submit the claim to 4th Strand in writing within thirty (30) days after the Report is delivered to Client by 4th Strand; and (ii) submit proof satisfactory to 4th Strand that the Report error or omission is in respect of the particular sample(s) provided to 4th Strand testing. Client expressly waives the right to any claims for breach of this warranty unless the claim is in compliance with the foregoing requirements. THE FOREGOING WARRANTY IS IN LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF SUCH PURPOSE WAS DISCLOSED TO 4TH STRAND.
16. Disclaimer – Except as otherwise expressly stated herein: (1) The Services are provided “as-is” without warranty of any kind, either expressed or implied, including without limitation any warranties of merchantability or fitness for a particular purpose; (2) 4th Strand neither assures nor assumes any liability to any person for the results obtained from the Services; (3) 4th Strand does not represent or warrant that the Services, Reports and results are complete or free from error, and does not assume, and expressly disclaims, any liability to any person for loss or damage caused by errors or omissions in the Services, Reports and results, whether such errors or omissions result from negligence, accident or other cause.
17. Indemnification – Client agrees to indemnify, hold harmless, and defend 4th Strand, and each of its respective affiliates, and their sub-contractors, agents, officers, directors, employees and permitted assigns from and against all and any third party (including any of Client’s vendors, manufacturers on whose Premises Services are performed by 4th Strand and owners of Premises where Services are performed by 4th Strand) claims, loss, liabilities, judgments, awards, expenses (including reasonable attorneys’ fees), actions, suits and damages incurred or arising out of (i) any breach by Client of any obligations and covenants set forth herein, (ii) performance of Services by 4th Strand at the Premises, and (iii) patent, copyright or trademark infringement involving the Client’s products.
18. Limitation of Liability – 4TH STRAND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, CONTINGENT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE, DATA, BUSINESS OR GOODWILL), RESULTING FROM OR RELATING TO THE SERVICES PERFORMED BY 4TH STRAND, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. THE TOTAL LIABILITY OF 4TH STRAND AND CLIENT’S EXCLUSIVE REMEDY FOR ANY ACTION, CLAIM, LOSS OR DAMAGE ARISING OUT OF THE PERFORMANCE OF SERVICES, REGARDLESS OF THE FORM OF ACTION, CLAIM, LOSS OR DAMAGE, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO 4TH STRAND FOR THE SERVICES WHICH GIVE RISE TO THE LIABILITY.
19. Entire Agreement, Modifications, Severability – The ERF or Proposal, including these Terms and Conditions, constitutes the entire agreement between the parties with respect to the Services, and supersede all previous negotiations, understandings, representations, communications, and other agreements whether written or oral between the parties. No modifications of the Terms and Conditions and the ERF or Proposal shall be effective unless in writing and signed by both parties, or in the event modifications are proposed by email, the recipient of the email must confirm acceptance of the proposed modifications in writing, including by return email to the party proposing such modifications, and the parties agree that such modifications shall be binding if the email exchange is between the representatives of the parties as named in the ERF or Proposal. Any impact on the work schedule or cost of Services caused by modifying this Agreement shall also be mutually agreed to by the parties. If any of the provisions set forth herein become invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
20. Interpretation – The rights and obligations of the parties in connection with the Services are governed by the Terms and Conditions, the ERF or Proposal, and any written changes that are mutually agreed to by Client and 4th Strand. In the event of any conflict or inconsistency among the foregoing, such conflict or inconsistency shall be resolved by giving precedence to the provisions in the following order of priority: (i) Any written changes that are mutually agreed to by Client and 4th Strand; (ii) these Terms and Conditions; (iii) ERF or Proposal.
21. Notices – Any notices required hereunder shall be given to the parties at their respective addresses set out in the ERF or Proposal, until a new and different address is established for either party by written notice to the other. Notices may be personally delivered or sent by prepaid registered mail. For Client, all notices should be sent to the attention of the person named on the ERF or Proposal. For 4th Strand, all notices shall be sent to the attention of: Evaluation Services, 3000 Northwoods Parkway, Suite 330, Norcross, GA 30071.
22. Other – The relationship of the parties is one of independent contractors. Neither party has the right, power or authority to enter into any contract or incur any obligation, debt or liability on behalf of the other party. The Terms and Conditions shall inure to the benefit of and be binding upon the parties and their respective successors. The provisions of Sections 11, 15, 16, 17 and 18 and any accrued rights to payment shall survive, in accordance with their terms, the expiration or termination of the Services. These Terms and Conditions shall be governed by the laws of Georgia without regard to Georgia’s conflict of law principles, and the parties agree to submit to the personal jurisdiction of the state courts of Fulton County, Georgia, or the federal district court for the northern district of Georgia for any dispute or litigation involving the Services or these Terms and Conditions, and both parties waive any rights to seek a jury trial.