Acknowledgment & Consent: Silica Testing Program

Before participating, you must agree to the following terms and conditions.

Terms and Conditions

Contractors who utilize the Construction Employers Association (“CEA”) SGS Silica Testing Program (hereinafter the “Program”) agree to the following User Terms and Conditions (“Terms”) as a precondition to such use:

Definitions

  1. CEA: “CEA” refers to the Construction Employers Association of Cleveland, Ohio.

  2. Program: “Program” means the designed way “TPA” sends out pumps/media to match the requirements of the new OSHA silica standard allowing the CONTRACTOR to easily monitor any silica dust hazards.

  3. Third Party Administrator: “Third Party Administrator” and “TPA” refer to the entity CEA has chosen to utilize in administrating the Program. The TPA is currently SGS Galson.

  4. Contractor: “CONTRACTOR” refers to any company who utilizes the Program.

Placing an Order

When the CONTRACTOR places an order: 

  1. CONTRACTOR must do so on the CEA equipment rental webpage or a direct phone call to SGS Galson Laboratories. 

  2. CONTRACTOR must indicate on the order form what date the TPA should expect to receive the equipment and accessories back from CONTRACTOR (the “Expected Return Date”). 

    • The TPA will list the Expected Return Date on the packing list the TPA ships with the equipment to the CONTRACTOR. 

    • CONTRACTOR will be provided requested sampling pumps and chargers in good working condition along with, if applicable, media and accessories.. 

    • CONTRACTOR will confirm receipt of all requested items and will contact the TPA immediately upon receipt if any items are missing or damaged. 

  3. CONTRACTOR shall pay CEA an amount sufficient to enable CEA to comply with its obligation to make payment on CONTRACTOR’s behalf to the TPA.  In case of any doubt as to the amount of payment, CEA’s estimate shall be controlling.

Return of Equipment

  1. CONTRACTOR is responsible for decontaminating all sampling pumps and accessories after use and for returning the sampling pumps, chargers and accessories and any unused media in good working condition by the Expected Return Date unless the CONTRACTOR obtains written permission from the TPA to extend the term of use. An email notification from the TPA is acceptable.

  2. If CONTRACTOR fails to return any or all sampling pumps, charges and accessories to the TPA by the Expected Return Date and CONTRACTOR has not obtained the TPA’s written permission to extend this term, CONTRACTOR acknowledges and agrees that CONTRACTOR will be considered to have rented these pumps, chargers and accessories. For situations where the TPA has not received any samples from CONTRACTOR from the use of these sampling pumps by the Expected Return Date, the rental term includes the timeframe beginning with the date that sampling pumps were shipped to CONTRACTOR from the TPA and ending on the date when the sampling pumps, chargers and accessories are returned to the TPA from CONTRACTOR. If the TPA has received samples from CONTRACTOR from the use of the sampling pumps by the Expected Return Date, the rental terms includes the timeframe beginning with the day after the Expected Return Date and ending with the day that the TPA receives all sampling pumps, chargers and accessories at its offices. The rental fee charges to CONTRACTOR will be the lowest combination of fees for the days outstanding using the following fees per sampling pump (including charger): daily - $45 per day; weekly - $95 per week; monthly - $200 per month, plus CEA’s administrative charges, if any. 

  3. If sampling pumps, chargers and accessories are not returned by CONTRACTOR within thirty (30) days from the Expected Return Date, CONTRACTOR acknowledges that CONTRACTOR will have purchased these sampling pumps, chargers and any other accessories and authorizes CEA to bill CONTRACTOR and CONTRACTOR agrees to pay CEA the replacement cost value for each piece of equipment as indicated on the packing slip sent to CONTRACTOR by the TPA upon initial shipment.

  4. CONTRACTOR acknowledges and agrees that CONTRACTOR is responsible for any damage to any sampling pumps, chargers and accessories and that CONTRACTOR will compensate CEA for any damages, up to and including full replacement value of such equipment.

  5. The TPA has warranted that all pumps shipped are fully charged and ready for service. CONTRACTOR understands and agrees to recharge all pumps before use if sampling is not done within two (2) days from the date shipped by the TPA. 

  6. CONTRACTOR acknowledges that CONTRACTOR is responsible for all shipping charges pertaining to this Program both from the TPA to CONTRACTOR and from CONTRACTOR to the TPA. CONTRACTOR agrees to send back all sampling pumps, charges and accessories by two-day courier service (Federal Express, UPS, etc.) or sooner. The TPA will send sampling pumps, chargers, etc. to CONTRACTOR by two-day courier service unless otherwise requested by CONTRACTOR. 

  7. CONTRACTOR understands that the services provided under this program by the TPA are available at the prices currently specified only because CEA has agreed to handle payments to the TPA.  Under that arrangement, CONTRACTOR ultimately is responsible for all taxes, duties and fees associated with this program, although CEA may also have financial responsibility to the TPA.  Whatever expenditures CEA makes on behalf of CONTRACTOR, CONTRACTOR agrees to pay to CEA, plus CEA’s administrative fees.

  8. CONTRACTOR acknowledges that CONTRACTOR’s only remedy from the TPA and CEA for situations where a sampling pump or sampling pumps were not able to perform as specified would be the reimbursement of some or all of the applicable shipping charges as mutually agreed. CONTRACTOR at its option may order replacement of the non-performing equipment at no charge to CONTRACTOR including shipping. 

Sampling Badges 

  1. CONTRACTOR will receive sampling badges at the listed price (including shipping charges, duties, tariffs, customs fees, etc.). 
  2. CONTRACTOR will inspect all requested items upon receipt and will contact the TPA immediately if any items are missing or damaged. 
  3. CONTRACTOR is responsible for returning all sampling badges provided by the TPA to the TPA for analysis and any unused badges within sixty (60) days from the date badges were shipped to CONTRACTOR by the TPA unless the CONTRACTOR obtains the TPA’s written permission (an e-mail notification from the TPA is acceptable) to extend the term of use. 
  4. If CONTRACTOR fails to return any or all sampling badges to the TPA within sixty (60) days from the date shipped by the TPA and CONTRACTOR has not obtained the TPA’s written permission to extend this term, CONTRACTOR understands and agrees that CONTRACTOR will be considered to have purchased these badges. CONTRACTOR authorizes CEA to bill CONTRACTOR and CONTRACTOR agrees to pay CEA an amount equal to the TPA’s published fee in its Media Fee Schedule for any and all badges not returned, plus CEA’s administrative fees, if any. (The TPA’s website www.galsonlabs.com lists its current Media Fee Schedule.)
  5. CONTRACTOR acknowledges that CONTRACTOR is responsible for all shipping charges pertaining to this Program from CONTRACTOR to the TPA.  CONTRACTOR is responsible for shipping charges to  unless CONTRACTOR agrees to the TPA shipping two-day ground to CONTRACTOR. CONTRACTOR is responsible for any other shipping charges required by CONTRACTOR when shipping from the TPA to CONTRACTOR. 
  6. CONTRACTOR understands that the services provided under this program by the TPA are available at the prices currently specified only because CEA has agreed to handle payments to the TPA.  Under that arrangement, CONTRACTOR acknowledges and agrees that CONTRACTOR is ultimately responsible for all taxes, duties and fees associated with this program, although CEA may also have financial responsibility to the TPA.  Whatever expenditures CEA makes on behalf of CONTRACTOR, CONTRACTOR agrees to pay to CEA, plus CEA’s administrative fees.
  7. CONTRACTOR acknowledges and agrees that CONTRACTOR’s only remedy from CEA and the TPA relating to situations where sampling badges do not perform as specified would be the reimbursement of some or all of the applicable shipping charges as agreed to by the TPA and CONTRACTOR. CONTRACTOR, at its option may order replacement of the non-performing badges at no charge to CONTRACTOR, including shipping.

Equipment Rental

  1. The TPA will provide CONTRACTOR with rental equipment in good working condition. The TPA has warranted that equipment will meet manufacturer’s specifications. Neither the TPA nor CEA is the manufacturer of the equipment and neither makes any warranty, either expressed or implied, other than as set forth herein. There are no oral or written promises other than those contained herein concerning the equipment. 
    • If CONTRACTOR does not provide timely notice of any defect upon delivery, it shall be presumed that equipment was delivered in good condition. If equipment requires repair or recall, CONTRACTOR shall immediately notify the TPA before any action is taken or any equipment is exchanged. The TPA’s obligation under this situation shall be to repair, recalibrate or at its option, replace any equipment that fails to operate per specification at TPA’s expense in a reasonably practicable timeframe within its reasonable control. Neither CEA nor TPA is responsible for any damage to equipment caused by CONTRACTOR.  
    • CONTRACTOR is responsible for returning the equipment in substantially the same condition as when received from TPA, ordinary wear and tear excluded. CONTRACTOR agrees to compensate CEA or TPA for any damages caused by CONTRACTOR.
  2. When the CONTRACTOR places a rental order, CONTRACTOR will indicate to TPA what date TPA should expect to receive the equipment back from CONTRACTOR. (“Expected Return Date”). TPA will list this date on the packing list that is sent with the equipment to the CONTRACTOR. If CONTRACTOR fails to return all equipment by the Expected Return Date, CONTRACTOR agrees to pay an additional rental fee equal to the lowest combination of fees for the days outstanding using TPA’s published fee schedule in effect on the date the equipment was shipped, plus CEA’s administrative fees, if any. (TPA’s website www.galsonlabs.com lists all applicable fees.) These additional rental charges will apply beginning on the day after the Expected Return Date and ending on the date that TPA receives the equipment at its designated office. 
    • If any or all equipment is not returned by CONTRACTOR within sixty (60) days after the original Expected Return Date, CONTRACTOR acknowledges that CONTRACTOR has purchased this equipment and agrees to pay an amount for each piece of equipment equal to the equipment’s then current replacement cost.
  3. CONTRACTOR understands that the services provided under this program by the TPA are available at the prices currently specified only because CEA has agreed to handle payments to the TPA.  Under that arrangement, CONTRACTOR acknowledges that CONTRACTOR is ultimately responsible for all taxes, duties and fees associated with this rental program, although CEA may also have financial responsibility to the TPA.  Whatever expenditures CEA makes on behalf of CONTRACTOR, CONTRACTOR agrees to pay to CEA, plus CEA’s administrative fees, if any
  4. In no event shall SGS GALSON or CEA be liable for any consequential, incidental or exemplary damages, including any loss of profit or revenues, loss of use of its equipment, damage to other equipment, cost of substitute equipment or down time costs for this rental program.

ACKNOWLEDGMENT AND AGREEMENT OF CONTRACTOR

As a member of the Construction Employers Association (“CEA”) and/or a potential participant in CEA’s Silica Testing Program, (“CONTRACTOR”) and its affiliates agree and acknowledge as follows:

  1. The rates for testing and reporting from SGS GALSON (“TPA”) are available only because CEA is taking on certain administrative duties, including approving bills and paying fees to the TPA.

  2. CONTRACTOR agrees that CEA may establish and modify markups and administrative fees to be charged to CONTRACTOR in addition to the fees of the TPA.

  3. CONTRACTOR agrees to reimburse CEA, upon request, any amount sufficient to pay for TPA pass-through charges CONTRACTOR incurs beyond the initial payment amount.  

  4. In the event that CONTRACTOR fails to reimburse CEA for all pass-through fees, any out-of-pocket costs (including, but not limited to, shipping charges) and CEA’s own markups or administrative fees, CEA may bring an action in small claims court in the Garfield Heights Municipal Court, or, if the amount is in excess of the jurisdictional limit, in the Common Pleas Court of Cuyahoga County, Ohio.

  5. If there are any disputes as to the quality of service provided by the TPA, CEA will attempt to mediate the issue, but shall have no responsibility for the level of service provided by the TPA.

  6. Access to the objective database of silica sampling results is provided to CONTRACTOR on an "as is" basis with no warranties of any kind, express or implied. CEA expressly disclaims any warranty of fitness for a particular purpose. CEA does not warrant, represent or guarantee in any manner that all unsafe or potentially hazardous conditions have been discovered.  CEA makes no warranty, representation or guaranty as to the content, accuracy or completeness of the information provided to the Contractor, makes no warranty that the information may be relied upon for any reason, including that the Contractor's workplace is free from any hazards or unsafe conditions.

  7. The purpose of the objective database is to provide the Contractor with information to assist in the recognition and avoidance of potential hazards associated with respirable silica dust operations.  The Contractor understands that the information provided in this database may not reflect the conditions at the work place that may be unsafe or dangerous, and additional air sampling test and evaluation may be warranted.  

BY ELECTRONICALLY SIGNING, YOU ACKNOWLEDGE AND AGREE TO THE USER TERMS AND CONDITIONS SET FORTH ABOVE. YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO SIGN ON BEHALF OF YOUR COMPANY.
Name of Contracting Firm.