Terms and Conditions

1.      Scope

           1.1 These General Terms and Conditions (these “Terms”) are applicable to all Customers of Steel City NDT, L.L.C., (Steel City) who have entered into an agreement with Steel City, or with any of Steel City’s affiliated companies (also hereinafter referred to as Steel City) for any of the services (the Services) indicated on the Service Agreement (the Service Agreement) or otherwise outlined on a statement of work (SOW) or quotation (Quote) submitted by Steel City to the Customer.

           1.2 No terms and conditions of the Customer shall at any time form a part of the content of any contract between Customer and Steel City unless expressly agreed to in writing by Steel City even if Steel City does not expressly rejected the terms and conditions.

2.      Offers and Acceptance

           2.1 Customer’s acceptance of the terms set forth in the Service Agreement, SOW, or Quote is expressly conditioned upon Customer’s assent to all the terms and conditions set forth therein and in these Terms. 

           2.2 The Service Agreement, SOW, or Quote is not binding upon Steel City until it is fully executed by the Customer and is accepted by Steel City in writing.

           2.3 All Services performed by Steel City pursuant to the Service Agreement and any SOW or Quote issued by Steel City pursuant to the Service Agreement shall be governed by the Service Agreement and these Terms.

           2.4 Notwithstanding any prior acceptance of a Service Agreement by Steel City, Steel City shall have no obligation to provide services if Customer is in breach of any of its obligations thereunder, or any other agreement between Customer and Steel City at the time such services were scheduled.

3.      Scope of Services

           3.1 The scope of the Services and the nature of the report, if any, shall be governed by the Service Agreement, SOW or Quote for the specific Services required, as evidenced by a written instrument executed by both parties and, if appropriate any additional parties.

           3.2 The agreed Services shall be performed in compliance with the regulations in force at the time the contract is entered into. Furthermore, Steel City is entitled to determine (in its sole discretion) the method and nature of any assessment unless otherwise agreed to in writing or if mandatory provisions require a specific procedure to be followed.

           3.3 On execution of the work there shall be no simultaneous assumption of any guarantee of the correctness (proper quality) and working order of either tested or examined parts nor of the installation as a whole and its upstream and/or downstream processes, organizations, use and application in accordance with regulations, nor of the systems on which the installation is based; in particular, no responsibility shall be assumed for the construction, selection of materials and assembly of installations examined, nor for their use and application in accordance with regulations unless these questions are expressly covered by the contract.

           3.4 The work performed by Steel City shall not include determining, supervising or implementing the means, methods, techniques, sequences, or procedures of construction or fabrication. Steel City shall not be responsible for evaluating, reporting or affecting job conditions concerning health, safety or welfare.

4.      Delivery Deadlines

           4.1 Time of performance and deadlines shall be agreed upon between Customer and Steel City and shall be set forth in the Service Agreement, SOW, Quote or other documentation specifying the Services to be delivered.

           4.2 Agreed upon delivery times and deadlines shall be based on estimates of the extent of the Services required and according to particulars and information supplied by Customer.

           4.3 Delivery times and deadlines shall be binding only on request by Customer and confirmation in writing by Steel City. Notwithstanding the foregoing, Steel City reserves the right to change the date for completion of Services and, if it does so, it will notify Customer in writing.

           4.4 If Steel City is required to delay commencement of the work, is required to stop or interrupt the work progress due to Customer’s request or a change in the scope of work, additional charges will be applicable and payable by the Customer.

5.      Customer Cooperation

           5.1 Customer agrees that all cooperation required of Customer, Customer’s agents, employees or any third party in connection with the Services, as may be specified in the Service Agreement, SOW, Quote or other underlying documentation for the Services, shall be provided in a timely manner and at no cost to Steel City.

           5.2 All documentation and materials, supplies, auxiliary staff, etc., necessary and reasonably required for the performance of the Services shall be made available to Steel City free of charge. In cooperating with Steel City, Customer shall comply with all legal requirements and industry safety regulations and standards.

           5.3 Customer shall bear any additional cost incurred as a result of Services having to be redone or delays resulting from untimely, incorrect or incomplete information or lack of proper cooperation.

           5.4 Notwithstanding that a fixed or maximum price for the Services has been agreed upon between the parties, Steel City shall be entitled to charge additional fees to offset additional expenses incurred as a result of such lack of proper Customer cooperation.

6.      Payment Conditions and Fees

           6.1 Unless otherwise agreed to in writing in the Service Agreement, the SOW or the Quote, fees charged by Steel City shall be calculated in accordance with the then current rates in effect at the time of Steel City’s acceptance of the Service Agreement.

           6.2 A rate schedule or quotation will be provided to Customer upon request. Customer agrees that its obligations with respect to the payment of fees exists independently from the results of the investigation and are not dependent on whether or not a certification is issued to Customer. Invoices are only payable in the legal tender of the invoice.

           6.3 Unless otherwise agreed to by the parties in writing, invoices will be issued regularly. In case of Services that are rendered under flat-fee arrangements, no detailed statement of services shall be provided.

           6.4 All invoice amounts shall be due for payment without deduction thirty (30) days after issuance of the invoice. A service charge of 1.5% per month or the highest rate permitted by law will be added to those accounts not paid within thirty (30) days of invoice date.

           6.5 If collection procedures are required, Customer will pay for all reasonable expenses including court and attorneys’ fees. The accrual or receipt by Steel City of interest under this subsection shall not constitute a waiver by Steel City of any right it may have to declare Customer in default under its agreement or to terminate its agreement to perform Services.

           6.6 Payments shall be made to the bank account of Steel City as indicated on the invoice, stating the invoice and client numbers.

           6.7 Objections to any invoice shall be submitted in writing within 7 days from receipt of the invoice.

           If the Customer cancels a project fewer than ten (10) business days prior to commencement of Services, Steel City is entitled to a cancellation fee of ten percent (10%) of the quoted price.

           6.8 No extension to payment terms or other settlements of debt shall be allowed without specific authorization by Steel City. If Customer fails to pay any amount due, Steel City may, without notice to Customer, suspend all Services. Furthermore, Steel City shall be entitled to withdraw the certificate and claim damages for non-performance.

           6.9 Fees for services rendered hereunder do not include any relevant value added tax (“VAT”), sales, excise or similar taxes, which are payable by Customer, where required.

           6.10 Services rendered outside normal working hours at the request of Customer and Services required to be rendered at short notice, (e.g. within a period of time that is considerably shorter than the period initially agreed upon), may be subject to surcharges listed in Steel City’s rate schedule.

           6.11 Travel fees, expenses and “material and additional costs” are charged separately, unless such fees, expenses and/or costs were included in a Quote. “

           6.12 “Material and additional costs” are herein defined as external costs (including, for example, subcontractor costs) associated with the Services, costs incurred for the use of special laboratories or special measuring equipment and miscellaneous costs (e.g. photographic work, disposal of test samples (hazardous waste), packaging, shipping and customs duties).

           6.13 A fifteen percent (15%) flat rate for administrative expenses will be added to such material and additional costs.

           6.14 Travel expenses incurred in connection with Services will be charged at cost or on a pro-rata basis as a flat rate, plus a fifteen percent (15%) flat rate for administrative expenses.

           6.15 Travel expenses include a per diem allowance, overnight allowance, transportation expenses (airplane/rail ticket or the applicable standard mileage rate as published by the U. S. Internal Revenue Service for travel by car in effect at the time services are rendered) and any other costs incurred.

           6.16 In addition, travel time of Steel employees shall be charged on the basis of the hourly rates of the Steel City employees engaged in the performance of the Services.

           6.17 Outstanding customer credit balances remaining with Steel City NDT, LLC longer than two (2) years will be considered an administrative fee and will become the property of Steel City NDT, LLC.

           6.18 Steel City NDT, LLC may suspend credit extended towards Customer’s accounts in its sole discretion without notification.

7.      No Right of Set-off

           7.1 Customer shall have no right of set-off against any payments due, whether on account of any claims or alleged claims against Steel City NDT, LLC or the Steel City NDT, LLC Affiliates under these Terms or otherwise.

8.      Acceptance

           8.1 Customer shall examine reports and work product generated by Steel City within five (5) business days beginning on the date of delivery to Customer.

           8.2 Steel City work product shall be deemed to be accepted unless a written notice describing the deficiency is received by Steel City within the applicable time period set forth above.

           8.3 Any part of the Services ordered by Customer which is complete in itself may be presented by Steel City for acceptance as an installment.

           8.4 Steel City will not issue test results, test reports, certifications, test marks and other statements regarding the Services (collectively “Reports”) via e-mail.

           8.5 Any communications via e-mail regarding the Services are for informational purposes only, may not be relied on by Customer, and do not replace or anticipate the formal notification regarding Reports or other decisions in accordance with the Regulations.

9.      Confidentiality

 9.1 For purposes of this Section, Steel City and Customer are each referred to as a “Party” as appropriate.

 9.2 As used throughout these Terms, “Confidential Information” means any scientific, technical, trade or business information which is given by one Party to the other and which is treated by the disclosing Party as confidential or proprietary.

 9.3 Confidential Information does not include information that: (a) is in possession of the receiving Party at the time of disclosure, as reasonably demonstrated by written records and without obligation of confidentiality; (b) is or later becomes part of the public domain through no fault of the receiving Party; (c) is received by the receiving Party from a third party without obligation of confidentiality; or, (d) is developed independently by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information by individuals who did not have access to Confidential Information.

 9.4 The disclosing Party shall, to the extent practical, use reasonable efforts to label or identify as confidential, at the time of disclosure all such Confidential Information that is disclosed in writing or other tangible form.

 9.5 Each Party agrees: (a) to keep confidential the Confidential Information of the other Party and the contents of the Service Agreement and these Terms; (b) not to disclose the other Party’s Confidential Information to any third party without the prior written consent of such other Party; and, (c) to use such Confidential Information only as necessary to fulfill its obligations or in the reasonable exercise of rights granted to it hereunder.

 9.6 Notwithstanding the foregoing, a Party may disclose: (a) Confidential Information of the other Party to its Affiliates, and to the Party’s and/or its Affiliates’ directors, employees, consultants, and agents who, in each case, have a specific need to know such Confidential Information and who are bound by a like obligation of confidentiality and restriction on use; or, (b) Confidential Information of the other Party to the extent such disclosure is required to comply with applicable law or to defend or prosecute litigation; provided, however, that in each case the receiving Party provides prior written notice of such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid or minimize the degree of such disclosure.

 9.7 Except to the extent required by applicable law, neither Party shall make any public statements nor releases concerning the Service Agreement, these Terms or the transactions contemplated hereby without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

10.  Copyright, Ownership and Use of Reports

           10.1 Except as expressly set forth in this Section, Steel City retains exclusive ownership of all Reports, methods of doing business, raw data, calculations, test results and expert opinions.

           10.2 The copyright on all Reports issued by Steel City NDT belongs exclusively to Steel City NDT, LLC and the Steel City.

 10.3 Customer shall only use for their intended purpose the reports and other documents produced by Steel City during the performance of its Services.

11.  Warranty and Limitation of Liability

 11.1 Steel City warrants that the Services shall be performed by Steel City in accordance with the applicable testing and certification standards and in a workmanlike manner by qualified personnel.

 11.2 Steel City NDT LLC shall not be liable under any circumstances to customer or any other person if: (a) the services or work products prepared in connection with the services are not used for the intended purpose; (b) any report prepared by steel city was subsequently modified without steel city’s written consent; (c) if customer fails to perform its obligations under these terms; or, (d) customer did not disclose to steel city all material facts known to customer with respect to the object of the services.

           11.3 Statements or findings made in steel city reports are opinions based on the tests conducted and are not to be construed as representations of fact.

           11.4 Due to the limitations of testing methods in evaluating all of the factors that determine the overall component quality, no guarantee is made nor liability assumed by steel city for the component quality or serviceability.

 11.5 Except for the warranties set forth herein, steel city makes no other warranties, express or implied, with respect to the services by steel city, or any of its agents, subsidiaries, affiliates or subcontractors.

 11.6 Any and all warranties, including without limitation, warranties of merchantability or fitness for a particular purpose, are expressly excluded and declined.

           11.7 Customer may not bring any action arising out of or in connection with any transaction covered by these terms.

12.  Indemnification

           12.1 Customer shall indemnify and hold harmless Steel City, managing members, officers, directors, employees, affiliates, suppliers and agents (each a Steel City Indemnified Person) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments of any kind whatsoever (including all reasonable legal and attorney’s fees and expenses) to which a Steel City Indemnified Person may become subject out of claims by Customer or any third party (including without limitation customers of Customer) related to or arising out of: (a) any breach by Customer of any provision of the Service Agreement, these Terms or the Certification and Testing Regulations; (b) any misrepresentation made by Customer in connection with obtaining any Services; or, (c) any action or omissions of Customer related to the Service Agreement, other than as expressly authorized in such Service Agreement.

13. Non-Solicitation

           13.1 It is agreed that the Customer shall not solicit for hire or induce any person who is an employee, independent contractor, subcontractor or agent of Steel City to terminate their employment or relationship with Steel City.

           13.2 If the Customer breaches this agreement and employs the above, or causes the termination of employment with Steel City, the Customer will immediately pay Steel City an amount equal to thirty-percent (30%) of the affected individual’s annualized compensation in effect at the time of employment termination.

14. Governing Law and Jurisdiction; Place of Performance

           14.1 The construction and validity of these Terms shall be governed by the laws of the Commonwealth of Pennsylvania without giving effect to its conflict of laws rules, regardless of where any order was placed or filed, the place of performance of the Services or delivery of reports or where any other act or performance occurred.

           14.2 The validity of this Agreement, the terms of this Agreement, and all duties, obligations and rights arising from this Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, as applicable to contracts made and to be performed in Pennsylvania.

           14.3 The parties consent to the jurisdiction of the courts of the Commonwealth of Pennsylvania and agree that any action arising out of or to enforce this Agreement must be brought and maintained in that Commonwealth. 

           14.4 The parties further agree that any suit to enforce, contest or clarify the provisions in this Agreement shall be brought in the Court of Common Pleas of Allegheny County, Pennsylvania.

 14.5 The parties do hereby agree to resolve any disputes or controversy in connection with or rising from this agreement by using binding arbitration under the uniform arbitration act, 42 pa.c.s. § 7301, et seq. All costs of arbitration shall be shared equally except that each party shall pay their own legal costs.

           14.6 Steel City NDT LLC, and customer hereby waive, to the fullest extent permitted by applicable law, any right either may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this agreement.

           14.7 In the event of any legal action, the prevailing party shall be entitled to recover from the other party all costs, expenses and reasonable attorney’s fees, expert witness fees, and any other costs incurred to bring or defend such action.

15. Severability

           15.1 If any provision of these Terms is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of these Terms, and the remainder of these Terms shall be enforced.

           15.2 In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in these Terms, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable.

           15.3 Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under these Terms by one party to the other, the remaining provisions of these Terms shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.

16. General Conditions

 16.1 Steel City reserves the right to discontinue any of the Services and to revoke or change prices or terms, except when otherwise indicated in these Terms.

 16.2 If, at any time, it becomes necessary to discontinue Services to Customer, to revoke or modify any provisions of these Terms or of any SOW, or to allocate the provision of Services, Steel City will take whatever action that it, in its sole and absolute judgment, deems fair and appropriate.

17. Revisions; Modifications; Waiver

           17.1 Steel City may change, revise, amend or modify these Terms from time to time. Steel City shall provide Customer with written notice of any such changes, revisions, amendments or modifications, provided, however, that any such changes, revisions, amendments or modifications shall become effective without any further action by any party and that they shall not apply to any orders placed and accepted prior to the effective date of such changes, revisions, amendments or modifications.

           17.2 Should Steel City at any time not enforce any one of these Terms, such event shall not be interpreted as a change of said Terms, or as Steel City’s waiver to exercise any of its rights under these Terms.

18. Entire Agreement

           18.1 These Terms, together with the Service Agreement, any SOW or Quote issued pursuant to the Service Agreement, and any schedules attached thereto, shall be the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof and supersede any oral or written communications, understandings, acknowledgements or representations or agreements relating thereto.