Any project-specific terms and conditions set forth in Turn Key Scaffold, LLC's (hereinafter the "TKS") quote or other TKS documentation related to the subject project or order shall control in the event of a conflict with these Standard Terms and Conditions as stated in the TKS Proposal/Quote/Bid (“Quote”), which TKS Quote expressly incorporates these additional terms, conditions and information.
Definitions
As used herein, the following terms shall have the following meanings. "Agreement" shalI mean these Standard Terms and Conditions and any project-specific or additional terms and conditions contained in a TKS Quote or other TKS provided documentation related to a project or order.
"Contractor" shall mean the party designated as such in a Quote, and by extension this Agreement which is incorporated into a Quote (the person or entity to whom TKS has sent its’ Quote) and, if different, the person/entity that is actually responsible for ordering services or equipment from TKS.
"Services/Equipment" shall mean any and all services/equipment identified in a TKS Quote or provided to the Contractor by TKS, including, but not limited to, labor, scaffolding, hoists and related items. Forklifts are to be provided by Contractor at the project site. On written request, TKS can provide forklifts on a cost plus 5% basis to be paid by Contractor.
"Rental Period" shall mean the time commencing when the Equipment is erected and green tagged at the Contractor project site and ending when the Equipment is dismantled. Quotes will state the time of paid rental period.
Exclusions
Unless expressly part of the TKS Quote, price does not include labor for any site specific training. TKS Quotes do not include any special wages, eg.: Prevailing Wage, Davis Bacon or any other. TKS Quotes are expressly based on a work area being free of obstructions and hazards. TKS is not responsible for any excavation or ground fill. Contractor is responsible to ensure ground is reasonably level and that the work site contains no hazardous conditions – Contractor acknowledges that any failure as to these specific terms shall be subject to the Delay and/or Default provisions hereinbelow, at TKS’ sole determination. All costs incurred by TKS as a result of any violation, in addition to the price set forth in a TKS Quote shall be immediately payable to TKS.
Acceptance and Modification
TKS’ OFFER TO PROVIDE SERVICES AND EQUIPMENT IS EXPRESSLY CONDITIONED UPON CONTRACTOR’S UNQUALIFIED ACCEPTANCE OF A TKS QUOTE, AND ACCEPTANCE IS EXPRESSLY LIMITED TO THE EXACT SCOPE OF WORK, TERMS AND CONDITIONS SPECIFIED IN THE SUBJECT MATTER TKS QUOTE. The rights of TKS and Contractor shall be governed exclusively by the terms and conditions set forth in the TKS Quote, inclusive of these additional terms and conditions, which are incorporated by this Agreement. Acceptance, use, or retention of any TKS Service/Equipment by Contractor shall constitute an unqualified acceptance by Contractor of all TKS terms and conditions whether or not a Quote was signed by Contractor. Any subsequent attempt by Contractor to vary in any degree, the exact terms and conditions of all TKS terms and conditions in any acceptance, acknowledgement, confirmation or other communication of any kind containing additional, inconsistent, or different terms and conditions shall not be deemed a valid counter offer to an approved TKS Quote.
TKS' provision of Service/Equipment pursuant to all TKS terms and conditions shall not be deemed to be an acceptance of any additional, inconsistent, or different terms proposed by Contractor. Should a TKS Quote be deemed an acceptance of a prior offer, quotation or proposal by Contractor, such acceptance is limited to the express terms and conditions set forth TKS Quote, to which this agreement is incorporated by reference. A TKS Quote and all terms and conditions stated or incorporated therein cannot be amended or modified (including prior course of dealing or trade usage) unless in writing and signed by both Contractor and TKS. The signing of a TKS Quote (or the acceptance of TKS services and/or material and/or TKS’ commencement of work, inclusive of mobilization) shall be an acknowledgement that Contractor has read these additional terms and conditions of this Agreement on the TKS website, per the TKS Quote and consents to incorporation of these additional terms and conditions as though set forth at length in a Quote.
Limitation of Liability
TKS WILL NOT BE RESPONSIBLE FOR ANY EQUIPMENT FAILURE OR LIABILITY WHATSOEVER, UNLESS SUCH FAILURE OR LIABILITY IS THE RESULT OF TKS' GROSS NEGLIGENCE, AND TKS WILL HAVE NO LIABILITY WHATSOEVER FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, LIQUIDATED, DELAY OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF PRODUCTION, LOSS OF USE, OR ANY OTHER INDIRECT DAMAGE OR LOSS ARISING FROM OR RELATING HERETO.
Claims
Any claim for losses, damages (direct or indirect), back-charges or offsets asserted by Contractor shall be submitted to TKS in writing within ten (10) days of the first discovery or of the date which Contractor reasonably should have had knowledge of a potential claim. Claims not made in accordance with this paragraph are expressly waived.
Rental Rate
Unless otherwise agreed to by the Parties, Equipment is rented initially on a 28 day cycle, or on such period as set in the Quote, and on a per day basis thereafter (“Additional Rental Period”).
The Rental Period begins when the Equipment is erected and green tagged at Contractor’s work site as designated in the TKS Quote and ends when the Equipment is dismantled at that site. Contractor shall be billed for any Additional Rental Period based upon rates set forth in the Quote, as may be adjusted as agreed in writing by TKS and Contractor, plus any and all applicable federal, state and local taxes. Contractor is directly referred to the TKS delivered Quote under “Rental”. Additional Rent will be invoiced monthly. A tax credit will be issued upon Contractor furnishing satisfactory evidence of tax-exempt status.
Safety and Security will become the sole and exclusive responsibility of Contractor as of the first day of Additional Rental Period. Contractor will indemnify and hold TKS harmless from, without limitation, any and all claims of any kind or nature, occurring during the Additional Rental Period. TKS will not provide a Safety Inspector during that period unless agreed in the Quote. Contractor will further assume sole and exclusive responsibility for the Equipment itself. Any damage or loss will be reimbursed to TKS within fifteen (15) days, at costs determined at highest retail market value in San Diego.
Default
Contractor shall be in default of its obligations under this Agreement if any of the following occur: (1) Contractor fails to pay TKS as agreed; (2) Contractor becomes insolvent or any proceeding in bankruptcy or receivership is commenced; (3) a termination or liquidation of Contractor's business occurs; or (4) Contractor is in breach of any TKS terms or conditions. In the event of any default by Contractor, TKS shall have, in its sole discretion, the right to cease performance on the project on grounds of excused performance, terminate the project agreement on grounds of breach/default, to remove any Equipment, and/or seek any other remedy available to TKS in law or equity. Contractor shall bear all costs and/or expenses (including reasonable attorneys' fees) incurred by TKS as a result of Contractor's default.
DELAYS
TKS will be paid for all down time or any work stoppages that are due to forces or circumstances not caused by TKS or its personnel. Contractor will also be responsible for any travel time, per diem, lodging and/or any other reasonable expense incurred by TKS as a result of such down time.