The following terms and conditions of sale (“Terms”) shall be the exclusive terms incorporated into all proposals by Texas Nondestructive Testing Academy (“TXNDT”) for the sale of Seller’s goods or services (“Products”), and the exclusive terms incorporated into any order or contract between TXNDT and the Customer for the products. These terms may only be modified or supplemented by agreement in writing between TXNDT and Customer.
1. Independent Contractor
TXNDT is an independent contractor and all persons employed to provide products, services or opinions during the term of this project are employees of TXNDT and its subcontractors, not of the Client (The term “Client” refers to the corporation, firm, persons or other legal entity requesting the work to be performed by TXNDT). The Client and TXNDT agree to be solely responsible for compliance with all local, state and federal rules, regulations and laws that apply to their own individual employees.
2. Scope of Services
Texas Nondestructive Testing Academy (TXNDT) agrees to provide training, consulting and/or procedure development services to the Client. If the Client is ordering work on behalf of another party, then the Client warrants that it is the duly authorized agent for said party for the purpose of ordering and managing the work. The acceptance of any proposal from TXNDT or the ordering of work from same shall constitute full acceptance of these General Terms and Conditions for Professional Services.
3. Payment Terms
TXNDT will submit invoices to Client immediately upon completion of services. There will be no retainage or holdback from invoices submitted unless specifically agreed to in the contract. Payment is due in full upon receipt of invoice unless agreed upon in writing in advance, regardless of whether or not Client has received payment or reimbursement from other parties. Client agrees to pay an interest rate of 1.5% per month (18% per annum) on any past due accounts. Any expenses associated with collection activities on past due accounts (attorney’s fees, et al) shall be borne specifically by the Client as well.
To the fullest extents permissible by the appropriate jurisdiction, Client and TXNDT both agree to hold harmless and indemnify the other, including their employees, officers and respective agents against and from liability for all losses, claims, damages and expense including reasonable attorneys’ fees, to the extent that such claims, damages and losses are for bodily injury, sickness, property damage, illness or death and to the extent that they are caused by the errors, negligent acts or omissions of the indemnifying party and/or that parties employees, officers, agents, independent contractors or subcontractors of any tier.
Statements made in all reports and correspondence provided by TXNDT are opinions based upon the company’s experience in the field of work undertaken and testing and other items (metallurgical analysis, etc) that have been gathered during the course of the project. These are not to be construed as representations of fact. TXNDT makes no warranty either (1) expressed or implied, (2) written or oral, (3) at law, in equity, or under contract, including without limitation any implied warranty or merchantability or fitness for purpose, and (4) notwithstanding any course of dealing between the parties or custom and usage in the trade to the contrary. The client assumes all risk and liability for acting on the information contained therein.
Work will only be performed in accordance with and conditions determined to be safe by TXNDT personnel. Additional charges may be due and payable for safety and security measures needed due to hazardous working environments that TXNDT may encounter. Client affirms that TXNDT is only responsible for the safety of its own employees and subcontractors and is not responsible for the safety of any other persons, property or items.
7. Limitation of Damages
In no event shall either party be liable for any incidental, indirect, special, consequential or punitive damages, such as, but not limited to, delay damages, lost profits or revenue, lost data or lost opportunity damages, resulting from or in connection with any claim or cause of action, whether brought in contract or in tort, even if a party knew or should have known of the possibility of such damages.
Contracts may be terminated by either party upon thirty (30) days prior written notice. In the event of such termination, TXNDT shall be compensated for all services performed and costs incurred for all activities up to and including the date of termination and for any/all post termination activities including but not limited to demobilization and final reporting.
9. Ownership Of Work Product
All documents (technical data, drawings, etc.) developed during the performance of the contracted work shall remain the property of TXNDT. A report with appropriate supporting documentation will be delivered to the Client upon the completion of services. These materials shall be for the Client’s use only and shall not be copied or disclosed to another party without the express written permission of TXNDT. Any proprietary information concerning the products, services, methods, or procedures utilized by TXNDT that are disclosed to the Client during the performance of this work remain the sole property of TXNDT and are disclosed in confidence. No rights are granted to the client to utilize, produce or have produced these products, services or procedures.
10. Full Agreement
The terms and conditions listed herein together with any written proposal submitted to the Client shall constitute the full agreement between the parties concerning the project and shall supersede any /all prior negotiations or verbal statements between them. Changes to TXNDT’s proposal or these Terms and Conditions may only be made in writing by an officer of the company duly authorized to do so.
In the event of any dispute or claim between TXNDT and the Client, both parties agree that such actions shall be resolved by binding arbitration in strict compliance with the rules and policies of the American Arbitration Association (“AAA”). The claimant shall be responsible for any/all fees associated with such action and both parties agree that prevailing party shall be awarded reasonable attorney’s fees and other costs as determined by the arbitrator. The parties further agree that the jurisdiction for and site for all hearings shall be in Houston, Harris County, Texas.