Terms and Conditions of UseLast Modified: March 14, 2022
This Website is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Website.
If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Intellectual Property Rights
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
Excluding the work product that we provide to you under a services agreement, or similar, you must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device, provided you agree to be bound by our end user license agreement for such applications.
You must not:
- Modify copies of any materials from this site.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: email@example.com.
The Company name, the terms New Era Drug Testing, ConsortiumPool.com and DotCompliance.us, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.
Additionally, you agree not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Website.
The Website may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Website.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
- You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.
Monitoring and Enforcement; Termination
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.
YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
If you believe that any User Contributions violate your copyright, please contact us for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Changes to the Website
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Website
Linking to the Website and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
This Website may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on this Website.
- Send emails or other communications with certain content, or links to certain content, on this Website.
- Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us and solely with respect to the content with which they are displayed and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Website other than the homepage.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
The owner of the Website is based in the State of California in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, 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, 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 limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Governing Law and Jurisdiction
Limitation on Time to File Claims
Waiver and Severability
Your Comments and Concerns
This website is operated by 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.
All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: firstname.lastname@example.org.
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 12/10/2023 (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