These Terms of Service (“Terms”) apply to orders for services (“Services”) provided by Covalent Metrology Services, Inc. By ordering and using the Services, you agree to the Terms on behalf of yourself and any company or entity you are representing or acting on behalf of (we will call you and your company the “Client” in these Terms). These Terms form a binding agreement between the Client and Covalent Metrology Services, Inc. (which will be called “Covalent” in these Terms) and supersede and prevail over any purchase order, written confirmation or other terms proposed by Client. Any purchase, written confirmation or other terms proposed by Client are hereby expressly rejected. The parties shall also be referred to as a “Party” or together as the “Parties.”
1. Scope of Services
Covalent performs analysis and testing services (the “Services”) only as specified by Client. Reports, data or other deliverables issued by Covalent are for informational purposes only and are not intended for use as certification, qualification or calibration of any product or service. Client acknowledges the following:
- Client assumes all risks associated with the reports, data or deliverables provided under these Terms, including but not limited to, any product, service, design, material or component developed, manufactured, sold or distributed by Client, whether or not based on the Services, reports, data or other deliverables.
- Covalent makes no expressed or implied representation, warranty or compliance of any nature regarding the Service or any report, data or deliverable. Nothing contained in any report, data or deliverable issued by Covalent shall be deemed to imply or mean that Covalent conducts any quality-control program for the Client to whom the report is issued.
- Covalent is not responsible for and does not warrant any design, manufacture or compliance of any product, service, material or component based on the Services or any report, data or other deliverable issued by Covalent.
2. Quotes for Services
The Services will be confirmed in the quote we provide to Client (“Quote”), which may include the details of the Services that we will provide, pricing, and turnaround time for reports and data (collectively, the “Deliverables”). Any Quote is valid for ten (10) business days from the date issued and shall supersede and prevail over any purchase order, written confirmation or other document issued by Client; any terms of any purchase order, written confirmation or other document that conflict with the Quote or Terms are expressly rejected. If Client requests any change in the scope of the Services covered by a Quote, it shall do so in writing by requesting a change order (“Change Order”). Covalent reserves the right to accept, reject or propose different or additional terms for such Change Order. No Change Order shall be binding on the parties unless accepted by both parties in writing.
In addition, if the assumptions that are the basis for the Quote are not correct or there are complications or developments that materially increase the amount of time required so that the Deliverables exceed the time originally anticipated, then Covalent has the right to suspend the Services and requote the Services. If the new quote is not accepted, Covalent has a right to cease work and Services on the project and charge for Services performed to date, plus any reasonable costs incurred in connection with the Services.
3. Services are Non-Exclusive
The Services are provided on a non-exclusive basis. As an independent contract laboratory, Covalent reserves the right and discretion to perform analysis work and Services similar to those for Client for any other entity, unless a written mutual agreement is in place that restricts such other work by Covalent. Covalent further reserves the right to subcontract all or a portion of the Services to other laboratories or other third parties or affiliates.
4. Client Obligations
Clients are responsible for providing the following information and materials (collectively, “Client-Provided Materials”) for Covalent to provide the Services:
- Samples to be tested;
- All information necessary to complete work provided by Client, including as applicable: sites to be observed, detailed instructions regarding measurement and/or sample preparation, and such other information requested by Covalent to provide the Services;
- All necessary documentation, packaging, and instruction for handling Hazardous Materials, including Materials Safety Data Sheets, if relevant. “Hazardous Materials” shall mean any substance or material that has been determined by any state, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property, including all of those materials and substances designated or defined as “hazardous” or “toxic” by any applicable law, rule, regulation or order; and
- Client represents and warrants that it will comply with all applicable laws and regulations in connection with the Services, and shall not cause Covalent to violate any applicable laws or regulations, including applicable export control laws. Covalent’s provision of the Services is expressly conditioned on the issuance of any required export licenses or authorizations to the extent the Services involve any export activity under applicable export control laws.
The failure of Client to provide the Client-Provided Materials may result in the delay of completing the Services. Client represents and warrants it has all necessary rights to provide the Client-Provided Materials to Covalent for purposes of providing the Services, including using, reproducing, and testing the Client-Provided Materials and that Covalent’s use of the Client-Provided Materials will not infringe or violate any person or entity’s IP Rights (as that term is defined in Section 8 below), privacy, publicity or other rights, or violate any law, rule, regulation or order, or contain any Hazardous Materials, unless specifically disclosed in Materials Safety Data sheets.
Client is responsible for following all safety, security, and other rules of Covalent if present at a Covalent testing facility, for the protection of Covalent property from Client employees or contractors at a Covalent testing facility, and for the use and handling of Client-Provided Materials. Client assumes all responsibilities for work done at Covalent facilities by Client.
5. Storage, Disposal, and Return of Client-Provided Materials
Client grants Covalent the right to store Client-Provided Materials during the period of the Services and for two (2) weeks after completion of the Services by issuance of a report by Covalent related to the Client-Provided Materials (“Project Period”). After such period, Covalent shall have the right to dispose of or destroy the Client-Provided Materials in its sole discretion, without further obligation or liability to Client, unless Client notifies Covalent prior to the end of the Project Period that it wishes to recover the Client-Provided Materials, and makes all necessary arrangements at its sole cost and risk to retrieve the Client-Provided Materials. Any costs of safely disposing of large or hazardous samples shall be billed to and paid for by Client. Client agrees that Covalent shall have no liability or responsibility for any loss, damage, or degradation of Client-Provided Materials occurring during the Project Period, except to the extent directly caused by Covalent’s gross negligence or willful misconduct.
6. Record Retention
Covalent shall retain final reports and underlying test data in accordance with Covalent’s quality management system document-retention policies, but in no event for less than three (3) years following issuance of the applicable report. Retention obligations are subject to Covalent’s reasonable data-management practices, and Covalent shall have no liability for loss of records beyond the applicable retention period or due to causes beyond its reasonable control.
7. Indemnification
Client shall indemnify Covalent and its owners, officers, directors, employees, agents, and representatives from any and all liabilities, losses, damages, claims, lawsuits, and expenses (including attorneys’ fees, court costs, and amounts paid in settlement) that arise out of or relate to Covalent’s use of the Client-Provided Materials, Client’s breach of these Terms or the negligence or willful misconduct of Client; provided, however, that Client shall not be liable for any damages, losses, costs or expenses to the extent attributable to the negligence or willful misconduct of Covalent.
8. Intellectual Property Rights
Covalent owns and retains all right, title, and interest, including all copyright, patent, trade secret, trademark, and other proprietary rights (“IP Rights”), in any and all inventions, discoveries, trade secrets, know-how, improvements, methods, systems, software programs, practices, procedures and processes, and proprietary materials including, but not limited to, structural and functional information and other data repository, formulations, and techniques that are developed, conceived or reduced to practice outside of the performance of Services for Client and all modifications or improvements thereto (“Covalent Background IP”).
Client hereby acknowledges and agrees that any and all IP Rights that are developed, conceived or reduced to practice by Covalent in the performance of the Services and that (i) are within the field of or derived from the Covalent Background IP or (ii) do not rely on or incorporate any specifically Client-Provided Materials or Client Proprietary Information (“Covalent Developed IP”), is not part of the Deliverables and shall vest in and be the sole and exclusive property of Covalent.
No license is granted to Covalent Background IP or Covalent Developed IP by these Terms.
Provided Client has complied with these Terms and paid all required fees, Client owns all rights, title, and interest in the Deliverables, provided that Covalent shall have a non-exclusive, perpetual right to retain and use a copy of such Deliverables for its internal business, recordkeeping, and archival purposes.
9. AI Tools, Automated Processing and Derived Intelligence
9.1 Use of AI Tools.
Covalent utilizes, and reserves the right to utilize, artificial intelligence, machine learning, statistical, computational, and other automated or algorithmic tools (“AI Tools”) in connection with the performance of the Services and its business operations generally, including without limitation communications, scoping, quoting, routing, scheduling, data processing, data analysis, interpretation, report preparation, recommendations, workflow management, quality management, and product development. Covalent’s use of AI Tools does not alter, expand, or diminish any of Covalent’s rights, warranties, disclaimers, or limitations of liability set forth elsewhere in these Terms, including without limitation Section 12 (Disclaimers) and Section 14 (Limitation of Liability).
9.2 Quality Processes.
Deliverables remain subject to Covalent’s applicable quality-control processes regardless of whether AI Tools were used in their preparation.
9.3 De-Identified Data.
Covalent may create and retain information derived from the performance of the Services that has been aggregated, de-identified, generalized, abstracted, transformed, or otherwise processed so that it does not identify Client and does not disclose Client Proprietary Information (“De-Identified Data”). Covalent may use De-Identified Data for analytics, benchmarking, research, quality improvement, product development, and to develop, train, evaluate, validate, test, and improve Covalent’s products, services, systems, software, models, AI Tools, and related technologies, including technologies made available to customers or third parties.
9.4 Derived Intelligence.
Covalent may derive generalized knowledge, patterns, correlations, statistical relationships, benchmarks, analytical methods, workflows, schemas, taxonomies, features, embeddings, model parameters, evaluation datasets, learned representations, model improvements, recommendations, and other information or know-how from the performance of the Services, De-Identified Data, and Covalent’s accumulated experience (“Derived Intelligence”). Derived Intelligence does not include Client Proprietary Information in identifiable form and will not be used to disclose Client’s identity, products, roadmap, processes, confidential results, or other Client Proprietary Information to another client. As between the Parties, Covalent owns all right, title, and interest in and to Derived Intelligence.
9.5 Relationship to Deliverables and Covalent IP.
For clarity, Client’s ownership of Deliverables under Section 8 does not include De-Identified Data, Derived Intelligence, or any Covalent Background IP or Covalent Developed IP used to create or embodied in the functionality of AI Tools, models, software, workflows, methods, schemas, taxonomies, algorithms, or platform technology. Nothing in this Section 9 transfers ownership of Client Proprietary Information or Client-Provided Materials to Covalent.
9.6 Client Confidentiality and Cross-Client Use.
Covalent will not intentionally use Client Proprietary Information in identifiable form to train a generalized AI model for the purpose of making Client Proprietary Information available to other clients or third parties. Nothing in these Terms prevents Covalent from using De-Identified Data or Derived Intelligence across its business, products, services, models, AI Tools, or customer engagements, provided such use does not identify Client or disclose Client Proprietary Information.
9.7 Third-Party Technology Providers.
Covalent may use third-party cloud, software, AI, machine-learning, and other technology providers in connection with the Services and AI Tools. Where Client Proprietary Information is provided to such a provider, Covalent will require the provider to be subject to confidentiality, security, and data-use restrictions appropriate to the nature of the information and the Services. Covalent will not knowingly authorize a third-party provider to use Client Proprietary Information in identifiable form to train the provider’s generally available foundation or generalized models, unless Client expressly agrees otherwise in writing.
9.8 Retention of De-Identified Data and Derived Intelligence.
Notwithstanding any return, destruction, or retention obligation elsewhere in these Terms, Covalent may retain and use De-Identified Data and Derived Intelligence and shall not be required to delete or reverse-engineer such information from models, statistical outputs, generalized knowledge, or other systems, so long as such information does not identify Client or disclose Client Proprietary Information.
9.9 Tool Disclosure.
Covalent is under no obligation to disclose which specific AI Tools, models, vendors, algorithms, or automated processes are used in connection with any Services, except to the extent disclosure is required by applicable law or expressly agreed in writing.
10. Confidentiality
Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Covalent includes without limitation non-public information regarding features, functionality, and performance of the Services and the Covalent Background IP and Covalent Developed IP. Proprietary Information of Client includes non-public information in the Client-Provided Materials. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person (except to employees or subcontractors with a need to know) any such Proprietary Information. The foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law. At any time upon the written request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy, with such destruction certified in writing, any and all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession, together with all notes, analysis, drawings, documents, designs, product samples, prototypes, and other tangible manifestations of the Confidential Information, including any copies and reproductions thereof. The Receiving Party may retain one (1) copy of the Confidential Information solely for legal and compliance purposes and any electronic back-up copies maintained in the ordinary course of business.
11. Payment
Client will be invoiced for the fees specified in the Quote upon completion of the Services, provided that Covalent reserves the right to request payment prior to initiating the Services. All invoices are due net 10 days of invoice. Past-due invoices accrue interest at 1.5% per month, or the maximum rate permitted by applicable law, whichever is lower. Client can pay for Services by credit card by providing such credit card information to Covalent and Client authorizes Covalent to charge that credit card the amount of fees specified in the Quote. Client is responsible for credit card processing or related fees, shipping and handling costs for any materials or Deliverables, and any other project-specific cost such as special disposal costs, tooling, fixture design, and purchases of consumables, if not already included in the Quote. Client is responsible for all expenses associated with Covalent’s collection of fees, including attorneys’ fees and court costs.
12. Disclaimers
Covalent disclaims any express or implied warranties, including any warranty regarding the timeliness, accuracy or completeness of the Services or Deliverables, that the Services or Deliverables can be relied upon for any compliance, design or manufacture of any product or service, or any implied warranties of fitness for a particular purpose, merchantability or non-infringement. Client assumes all risk in relying upon the Services and the Deliverables.
13. Correction of Reports; Re-Testing
If Client believes a Deliverable contains a material error, Client shall notify Covalent in writing within thirty (30) days after issuance of the applicable report, specifying the suspected error in reasonable detail. Covalent shall investigate the reported error within a commercially reasonable timeframe. If Covalent confirms a material error attributable to Covalent’s performance of the Services, Covalent shall, at its option, either (a) issue a corrected report or (b) re-perform the affected testing at no additional charge, provided the original sample remains available and is in a condition suitable for re-testing. This remedy constitutes Client’s sole and exclusive remedy for reporting errors and does not expand the Limitation of Liability set forth in Section 14. Covalent shall have no obligation to investigate or correct any alleged error reported more than thirty (30) days after issuance of the applicable report.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL COVALENT BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COVALENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COVALENT’S AGGREGATE LIABILITY UNDER THESE TERMS AND FOR THE SERVICES SHALL NOT EXCEED THE FEES PAID FOR SUCH SERVICES. THE DISCLAIMERS AND LIMITATIONS IN SECTIONS 1, 12, 13 AND 14 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY, AND SO THESE PROVISIONS MAY NOT APPLY TO CLIENTS IN SUCH JURISDICTIONS.
15. Termination and Suspension of Services
Covalent reserves the right to terminate or suspend any Services or Quote at any time in its sole discretion. If Covalent terminates or suspends a Quote under this Section prior to completion, other than for Client’s breach or non-payment, Covalent shall charge for Services performed to date, plus any reasonable costs incurred in connection with the Services. Covalent may also terminate or suspend Services and withhold any Deliverables if Client breaches these Terms or fails to make payment when due. Sections 5 through 14, Section 16, and any indemnification obligations or claims for amounts due from Client shall survive termination.
16. General Provisions
16.1 Force Majeure.
Any default, delay or failure to perform on the part of either party will not be considered a breach of these Terms if such default, delay or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, pandemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters or default of a common carrier.
16.2 Governing Law and Jurisdiction.
These Terms will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles. Each party hereby irrevocably submits to the jurisdiction of the state and federal courts in Santa Clara County, State of California with regard to any dispute arising out of or relating to the Terms or the Services. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
16.3 Time Limitations on Claims.
Client is barred from bringing any claim relating to or arising out of the Services or these Terms more than one (1) year after such claim accrued.
16.4 Independent Contractors.
The relationship of the Parties established by these Terms is that of independent contractors, and nothing contained in these Terms will be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
16.5 Binding Effect.
These Terms will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
16.6 Amendments.
No modification of, or amendment to, these Terms will be effective unless the same shall be in writing and signed by an authorized representative of both parties.
16.7 Partial Invalidity.
If any provision of these Terms is held to be invalid or unenforceable, such provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.
16.8 No Waiver.
No waiver of any term or condition of these Terms will be valid or binding upon either Party unless the same will have been mutually assented to in writing by an officer of both parties. The failure of either party to enforce at any time any of the provisions of these Terms, or the failure to require at any time performance by the other party of any of the provisions of these Terms, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
16.9 Construction.
The titles and section headings used in these Terms are for ease of reference only and shall not be used in the interpretation or construction of these Terms. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.”
16.10 Entire Agreement.
These Terms set forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the parties with respect to such subject matter.
16.11 Assignment.
Client shall not assign or delegate these Terms or any of its licenses, rights or duties under these Terms (whether by merger, sale of assets, sale of equity or otherwise) without the prior written consent of Covalent, and any purported assignment shall be void and of no force or effect. Covalent may freely assign or delegate these Terms or any of its rights or duties hereunder.
16.12 Notices.
Client agrees to accept any notices and communications required under these Terms at the email address provided in the Client’s account. All such notices shall be deemed delivered upon the date sent by Covalent. Any notices to Covalent shall be sent to the following address:
Covalent Metrology Services, Inc.
921 Thompson Place
Sunnyvale, CA 94085
17. Text Message Approval Notifications Policy
The Covalent Messaging Program sends you SMS messages for quote approvals.
We will send one message per approval with another possible request for CM number clarification.
Message and Data Rates May Apply.
Opt-out by replying STOP.
Customer Care Information: Call 408-580-0605, reply HELP to a message or email hello@covalent.com.
Link to Privacy Policy: https://covalent.com/privacy-policy/
Covalent Metrology Services, Inc.
921 Thompson Place
Sunnyvale, CA 94085