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.
Contaminated Equipment
Contractor shall fully clean and decontaminate, in a manner satisfactory to TKS, all equipment exposed to asbestos, materials containing lead, radiation, toxic or hazardous substances, or any other materials that may reasonably represent a hazard to human health or would preclude or limit the future use of the equipment by TKS. Upon TKS’ s request contractor shall provide to TKS all documentation reasonably required to confirm such cleaning and decontamination has occurred. Should any Equipment be returned to TKS without being cleaned or decontaminated, the contractor shall, at TKS’ s sole option:
(1) Clean and decontaminate the equipment at contractor’s sole cost (including all transportation costs associated).
(2) Reimburse TKS for all reasonable costs incurred by TKS in connection with cleaning and decontaminating the equipment or engaging a third party to clean and decontaminate the equipment. Should any equipment be unable to be cleaned or decontaminated to TKS’ s satisfaction, contractor shall pay to TKS an amount equal to TKS’ s current list price plus handling charges for all such equipment. In addition, contractor shall indemnify TKS from and against all damages resulting from or relating to contractor’s failure to decontaminate the equipment properly and adequately. For health and safety reasons, contaminated equipment must be returned to TKS by contractor, and TKS shall not be obligated to return any such equipment tocContractor, regardless of any cleaning, decontamination, or replacement costs incurred or paid by contractor pursuant to this section.
Definitions
As used herein, the following terms shall have the following meanings. "Agreement" shall 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.
Default and Termination
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 fails to procure or maintain any insurance coverage required under this Agreement.
(3) Contractor becomes insolvent or any proceeding in bankruptcy or receivership is commenced.
(4) Termination or liquidation of Contractors business occurs.
(5) Contractor is in breach of any terms or conditions of this Agreement. In the event of any default by the Contractor, TKS shall have the right to remove any Equipment, stop performance on the project, terminate this Agreement, 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 due to default.
Scope
The scope of work to be provided by TKS to the contractor is set forth in this Agreement. Unless otherwise agreed in writing, Contractor shall be responsible for:
(1) Determining of verifying the bearing capacity of floors, roofs, walls, or any other structure or location upon which the Equipment will be located.
(2) Ensuring that the ground or structure upon which the Equipment will be placed is level, clear of debris and obstruction, level to within twelve (12) inches of the ground and capable of withstanding the total load imposed by the Equipment and any materials and personnel on the Equipment.
(3) Any taxes, licenses, or permits that may be required because of the Equipment or Services to be provided by TKS. If contractor fails to satisfy any of its obligations under this Section, Contractor shall be responsible for any resulting damages and extra costs incurred by TKS or others.
(4) If TKS decides, in its sole discretion, to provide equipment, services, or other assistance to satisfy contractor’s obligation hereunder, then contractor shall be responsible for all direct or indirect costs incurred by TKS. The price listed in this agreement constitutes the price for only those items of equipment and/or services expressly set forth herein. Any additional equipment or services beyond those expressly set forth in this agreement will constitute extra work and contractor shall be responsible for all costs and charges associated therewith. If contractor is unsure of what costs or charges are included in the prices, then contractor shall bear the responsibility of requesting clarification form TKS. Contractor shall compensate TKS in a timely fashion for any extra work performed in connection herewith, where such work is requested orally or in writing by the contractor. If there is not prior agreement between the Parties as to the extra costs and charges, TKS shall be entitled to reasonable compensation for any additional work performed, including a customary profit amount.
Use and Maintenance of Equipment
Contractor expressly agrees that it shall erect dismantle, modify, and/or use the equipment in a safe and proper manner that is consistent with all applicable federal, state and/or local statutes, regulations and ordinances and accepted industry practices, including any instructions provided to contractor by TKS. Contractor agrees that its use of the Equipment shall represent its acknowledgment that the Equipment was in good condition and repair at the time of delivery. If the equipment is not in good condition or repair at the time of delivery, then Contractor shall not use the equipment and shall immediately notify TKS of any defects or other issues with respect to the equipment’s condition. Contractor shall at all times during the rental period and at its own expense maintain the Equipment in good working condition, excepting ordinary wear and tear caused by proper use. Any modification or relocation of scaffolding equipment and its components by the contractor or any subcontractor using the scaffold is to be done solely at the contractor’s risk and should always be in compliance with and according to any and all federal and/or state occupational safety and health laws, rules, and regulations, in addition to applicable city, county, or local codes. The Equipment shall only be used for the purposes for which it was designed.
Incident Notifications
Contractor shall notify TKS immediately of any incident or accident that involves (or potentially involves), directly or indirectly, the Equipment or Services and that results (or may result) in death, personal injury, Loss, property damage or an event that triggers (or may trigger) Contractor’s indemnity obligation set forth above. In addition, Contractor shall notify TKS of any inspection or investigation conducted by OSHA or other similar enforcement agency in connection with the Equipment and at a work site where the Equipment is located. Contractor shall at all times fully cooperate with to limit the extent of any Losses or damages resulting from such an incident. Contractor shall also cooperate with TKS during TKS’ s investigation of any such incident and understands that time is of the essence after an incident to promptly investigate and isolate the physical evidence (including the taking of photographs and other measures to prevent the spoliation of physical evidence). Contractor is deemed to have knowledge of the incident from the time that the Contractor or its employees, agents, representatives, contractors, subcontractors, suppliers, vendors, or other parties who report to the Contractor, learn of the incident or accident.
Force Majeure
TKS shall not be responsible for any delay in the performance of Services or failure of Equipment if and to the extent such delay or failure was caused by an event or occurrence beyond TKS’ s reasonable control and without its fault or negligence. Notwithstanding anything to the contrary contained herein, Contractor shall always, be responsible to TKS any damage, Loss, or other liability related to the Equipment.
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.
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.