UNITED SCAFFOLDING, INC.
RENTAL TERMS AND CONDITIONS
ALL RENTALS ARE GOVERNED SOLELY BY THE TERMS AND CONDITIONS HEREIN, NO TERMS PROVIDED BY CUSTOMER, INCLUDING ANY TERMS THAT MAY BE ATTACHED TO A PO OR REQUEST FOR BID, WILL ALTER IN ANY WAY THE TERMS OF RENTAL FROM USI
- Rental Term: The rental term (the “Term”) shall begin on the day of the first shipment of the materials and/or equipment including, without limitation, scaffold equipment, shoring equipment, and forming equipment (collectively the “Equipment”) and shall terminate upon the return of the Equipment in good and operable condition to USI, at Customer’s cost, at USI’s designated location. Upon return, Customer shall band the Equipment in a manner similar to the way it was delivered to Customer. If the Equipment has to be repaired or cleaned to return it to a fully working state, or if the Equipment is missing, lost or stolen, the Term will continue until the Equipment has been returned to good and operable condition or has been replaced at Customer’s cost. Customer shall, at its own expense, be responsible for any freight, insurance or customs charges related to the Equipment incurred during the Term.
- Price and Payment: The rental price during the Term (the “Price”) shall be as set forth in the schedule attached to the Customer proposal or to this Agreement. The parties agree that the Price may be adjusted from time to time to reflect changes in number of pieces of Equipment on rent or for additional costs incurred by USI, as appropriate. In the event of omission of a rental schedule provided to Customer, the Price shall be provided to Customer in a written quotation or proposal prior to execution of this Agreement. Payments will be due thirty (30) days after the date of each invoice. Customer further agrees to pay interest on any unpaid rent and other invoiced charges beginning on the date payment is due, compounded annually, at an interest rate which is the lesser of: (i) one and a half percent (1.5%) per month, or (ii) the highest rate permitted by law. Should USI have to resort to an outside vendor, including attorneys, to collect on unpaid amounts as described above, Customer agrees to pay USI all reasonable costs, charges, expenses, agency fees, and reasonable attorneys’ fees expended or incurred as a result thereof.
- Sales and Rental Taxes: Prices quoted do not include any applicable state, local, or foreign sales tax, use tax, rental tax, contractor’s tax, excise tax.VAT/GST/HST/PST/QST or any other applicable taxes required and/or levied by any taxing authority. USI is required by law to charge all applicable sales and rental taxes and will add said taxes to the invoice as a separate line item to be included in the total amount to be paid by the Customer. Customer will be responsible for payment of any and all applicable taxes and will indemnify USI from any and all such taxes, penalties, or interest assessed against USI. USI shall accept any and all valid tax exemption certificates provided by Customer and will adjust tax charges accordingly. In the event that a valid direct pay certificate is provided, Customer shall provide USI with proof of such payment semi-annually. For scaffolding agreements in Mississippi, USA or states with similar tax laws, the scaffolding rental costs will be on a separate purchase order from any services, and by signing this Agreement, the Customer understands that the Customer is renting scaffolding, and the scaffolding is not part of the contractor’s services, and the scaffolding rental is therefore not subject to the contractor’s tax.
- INSPECTION: CUSTOMER SHALL INSPECT THE EQUIPMENT, PRIOR TO USE, TO VERIFY THAT CUSTOMER RECEIVES THE CORRECT AMOUNT OF EQUIPMENT AND THAT THE EQUIPMENT IS IN GOOD AND OPERABLE CONDITION. USE OF THE EQUIPMENT BY CUSTOMER SHALL BE DEEMED TO BE AN ACCEPTANCE AND ACKNOWLEDGMENT BY CUSTOMER THAT THE EQUIPMENT WAS IN GOOD AND OPERABLE CONDITION WHEN DELIVERED OR MADE AVAILABLE BY USI TO CUSTOMER. IF CUSTOMER FAILS TO NOTIFY USI OF ANY ISSUES WITH THE EQUIPMENT WITHIN 48 HOURS OF DELIVERY, THE EQUIPMENT SHALL BE DEEMED ACCEPTED BY CUSTOMER AND FREE FROM ANY DEFECTS.
- Damaged, Lost, Stolen or Unclean Equipment: Customer shall, at all times and at its own expense, keep the Equipment in good and operable condition, and Customer shall assume all risks of damage, loss, theft, destruction or disappearance of the Equipment from any cause, with the exception of ordinary wear and tear. The Customer shall immediately inform USI of all losses or damage to the Equipment and shall provide USI with the name of the Customer’s insurer, the name and contact information of the Customer’s insurance agent, a copy of any police report, all necessary proofs and complete information concerning any insurance coverage for the loss or damage. USI, or its appointed agent, shall, in its sole judgment, determine if the damage is caused by ordinary wear and tear. The condition of the Equipment shall be assessed upon return to USI, including inspection for damage and cleanliness, and a physical count to determine the type and amount of any missing Equipment. All determinations made by USI shall be final. At USI’s sole and complete discretion, USI shall, each at Customer’s expense, repair or clean or any damaged Equipment, or replace any damaged, lost or stolen Equipment at USI’s price list in effect at the time of return of the Equipment. Accrued rental charges or allowances for depreciation shall not offset the purchase price or cost of repairs of damaged, lost, or stolen Equipment. Customer shall not permit any claims, liens, charges, or encumbrances to attach to the Equipment, and Customer shall promptly take all action necessary, at its own expense, to discharge the same to USI’s satisfaction. In the event USI has to take steps to remove any such liens, Customer shall be liable for any and all costs associated, including reasonable attorney fees.
- Use of Equipment: Customer agrees to erect, maintain and use the Equipment in a safe and proper manner, in conformity with all laws, regulations and ordinances pertaining thereto, and in accordance with all OSHA standards. USI shall have no responsibility, direction or control over the manner of the erection, maintenance, use or operation of the Equipment by Customer. It is the responsibility of Customer to fully and properly integrate the Equipment into Customer’s drawings in a manner consistent with safe practice and the overall project objective, as determined by Customer, its architects and engineers.
- Personal Property: The Equipment is and shall remain personal property and is the sole and exclusive property of USI unless and until purchased and paid for by Customer. Customer may not remove tags or labels identifying USI as the owner of the Equipment.
- Removal and Inspection at Location: The Equipment shall be kept by Customer at the location where it is delivered and shall not be intermingled, connected to or used with any Equipment or goods of others. At all times, USI shall have the right to enter the premises where the Equipment may be located for the purpose of inspecting the Equipment.
- Alteration of Equipment: Customer shall not make any alterations, additions or improvements to the Equipment without the prior written consent of USI. All alterations, additions and improvements of whatsoever kind or nature made to the Equipment shall belong to and become the property of USI on the Term’s expiration or any earlier termination of this Agreement. If any alterations, additions or improvements are made to the Equipment which cause the Equipment to be damaged beyond repair, then Customer shall be responsible for payment of the purchase price for the damaged Equipment in accordance with Section 5.
- Indemnification: CUSTOMER AGREES TO RELEASE, PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND USI, ITS PARENT, SUBSIDIARIES AND AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OF ANY TIER, REPRESENTATIVES, AND CONSULTANTS (“USI PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, LIENS, DAMAGES, CAUSES OF ACTION, JUDGMENTS, LOSSES, ATTORNEYS AND EXPERT FEES, AND LIABILITIES OF ANY NATURE WHATSOEVER ARISING IN ANY MANNER, DIRECTLY OR INDIRECTLY, OUT OF OR IN CONNECTION WITH OR INCIDENTAL TO THE RENTAL OR SALE OF THE EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S USE OR APPLICATION OF OR OPERATION OF THE EQUIPMENT AND ANY BODILY INJURY, DEATH, OR PROPERTY DAMAGE OF ANY THIRD PARTY OR ANY EMPLOYEE OF CUSTOMER). IT IS THE INTENT OF THE PARTIES THAT THE INDEMNITIES AND RELEASES PROVIDED FOR HEREIN SHALL BE BROADLY CONSTRUED AND SHALL APPLY REGARDLESS OF USI’S FAULT, STRICT LIABILITY, BREACH OF WARRANTY, STATUTORY LIABILITY OR ACTUAL OR ALLEGED NEGLIGENCE. THIS INDEMNITY AGREEMENT IS INTENDED TO INDEMNIFY USI AGAINST THE CONSEQUENCES OF ITS OWN NEGLIGENCE AND FAULT.
- Disclaimer of Warranties: USI MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE DESIGN OR CONDITION OF THE EQUIPMENT, THE QUALITY OR CAPACITY OF THE EQUIPMENT, THE WORKMANSHIP OF THE EQUIPMENT, COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, RULE, REGULATION, SPECIFICATION OR CONTRACT PERTAINING TO THE EQUIPMENT, PATENT INFRINGEMENT, OR LATENT DEFECTS. CUSTOMER TAKES THE EQUIPMENT “AS IS.”
- “As Is Where Is” Sale: In instances of sale of the Equipment to Customer either as an initial transaction or following rental of the Equipment, all sales are made on an “as is where is” basis with no warranties or representations whatsoever regarding the Equipment.
- Limitation of Damage: UNDER NO CIRCUMSTANCES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY OR OTHERWISE, WILL USI BE RESPONSIBLE FOR LOSS OF USE, LOSS OF PROFIT, INCREASED OPERATING OR MAINTENANCE EXPENSES, OR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND.
- Insurance: Customer, at its own expense, shall (i) insure the Equipment, with an insurance company acceptable to USI, and valid in any jurisdiction that the Equipment is shipped to or used, for not less than full replacement value against all risks of loss or damage from every cause whatsoever, naming USI as loss payee, (ii) maintain commercial general liability insurance, with an insurance company acceptable to USI, naming USI as an additional insured in a form satisfactory to USI, with limits of not less than $2,000,000 for bodily injury, death or property damage, for any and all claims for bodily injury or property damage arising out of the use of the Equipment, (iii) provide USI with(a) a certificate of insurance listing the required policies, (b) a copy of the additional insured endorsement, (c) an endorsement stating that the insurance provided hereunder is primary, and other insurance available to USI is excess and noncontributing, and (d) includes a Separation of Insureds clause or endorsement (e) if requested by USI, true and correct copies of any such applicable policies, (iv) ensure that Customer’s property and general liability policies contain a waiver of subrogation in favor of USI and that the certificate of insurance reference the waiver of subrogation, and (v) notify USI immediately within 24 hours after the occurrence of any claim, loss, damage or injury relating to the Equipment. Any deductibles or self-insured retention limits cannot be over $50,000 without written approval by USI, and all deductibles or self-insured retention limits are the responsibility of Customer. Upon Customer’s failure to provide any of the foregoing identified in (iii) above, USI may obtain such insurance coverage at Customer’s expense, and Customer shall immediately reimburse USI for any costs incurred by USI. The proceeds of such insurance, at the option of USI, shall be applied (a) toward the replacement, restoration, or repair of the Equipment, or (b) toward payment of Customer’s obligations under this Agreement. USI shall have no duty to Customer or its insurers to review any certificates of insurance or copies of insurance endorsements furnished to USI or determine whether the certificates or endorsements comply with the insurance related portion of this Agreement. A failure of USI to detect that Customer has not submitted certificates, endorsements or is otherwise not in compliance with the insurance related provisions of this Agreement shall not be considered a waiver of USI’s rights under such insurance related provisions.
- Events of Default: The occurrence of any of the following shall constitute an “event of default” under this Agreement: (a) Customer fails to pay the Price or any other sum due under this Agreement within ten (10) days after such sum is due; (b) Customer fails to observe or perform any covenant, obligation, or agreement contained herein; (c) Customer becomes insolvent, becomes the subject of any bankruptcy proceeding, or a receiver is appointed for Customer or any of the assets of Customer; (d) any lien or encumbrance shall attach to or be filed against any Equipment rented by Customer; (e) Customer fails to keep the Equipment in good and operable condition; or (f) the Equipment is removed from the location where delivered, other than for return to USI.
- Remedies: If Customer is in default under this Agreement, without notice to or demand on Customer, USI may (a) take possession of the Equipment wherever found, with or without legal process, and for this purpose,USI and/or its agents may enter upon any premises of or under the control or jurisdiction of Customer or any agent of Customer, without liability for suit, action or other proceeding by Customer (any damages occasioned by such repossession being hereby expressly waived by Customer) and remove the Equipment therefrom,; (b) declare the entire amount of all sums, due, based on the Term or any estimated rental period under this Agreement and/or terminate this Agreement, including all expenses and costs incurred by USI in enforcing its rights in (a), immediately payable; or (b) pursue any other remedy at law or in equity. All such remedies are cumulative and may be exercised concurrently or separately. In the event of any action at law or in equity in relation to this Agreement, USI shall be entitled to recover its reasonable attorneys’ fees and costs.
- Non-Delivery or Delay: USI reserves the right, without penalty or obligation, to suspend shipments of Equipment in the event of strikes, shortages of Equipment, labor problems, transportation interruption, accidents, fires, floods, acts of God, government action, pandemic, or other events beyond the control of USI. Any suspension of performance by reason of this provision shall be limited to the period during which such cause or failure exists.
- Assignment: Customer may not assign this Agreement or any rights under this Agreement without the prior written consent of USI. USI may assign this Agreement, in whole or in part, without notice to Customer. Subject to the foregoing, this Agreement inures to the benefit of and is binding on the parties and their successors and assigns.
- Severability and Waiver: If any provision of this Agreement, or part thereof, is found to be void, invalid or unenforceable, the remaining provisions shall nevertheless be binding with the same force and effect as though the void or invalid portions were removed. The failure of USI to enforce any provision of this Agreement shall not be construed as a waiver or limitation of its right to subsequently enforce and compel strict compliance with every provision of this Agreement.
- Notice: Any written notice or demand shall be given by registered or certified US Mail, return receipt requested, overnight delivery service regularly providing proof of delivery or personal delivery at the address specified above.
- Time: Time is of the essence with respect to all of Customers obligations under this Agreement.
- Choice of Law and Venue: The rights, duties and obligations of the parties hereunder shall be governed and construed in accordance with the laws of the State of Texas, without regard to any laws to the contrary including but not limited to any choice of law rules or any conflict of laws rules or laws which would refer its interpretation to the laws of another jurisdiction. Should USI employ an attorney to (i) enforce any of the provisions hereof, (ii) protect its interest in any matter arising under this Agreement, including in connection with taking possession of the Equipment and repairing and restoring the Equipment to the condition in which it was originally delivered to Customer, (iii) collect damages for the breach of this Agreement, or (iv) prosecute or defend any suit referring or relating to this Agreement, Customer agrees to pay USI all reasonable costs, charges, expenses, and reasonable attorneys’ fees expended or incurred as a result thereof. Venue for any court action taken by or against USI shall be in the state or federal courts located in Houston, Harris County, Texas, and both parties hereby consent to the personal jurisdiction of such courts for all such purposes. The U.N. Convention of Contracts for the International Sale of Goods shall not govern nor apply to this Agreement.
- Entire Agreement and Amendment: This Agreement supersedes any and all prior offers, agreements, or understandings and comprises the entire lease and contract between the parties, and there are no understandings, representations, warranties or promises, verbal or otherwise, pertaining to this Agreement or to the Equipment, which are not incorporated herein.
- Compliance with Laws: Customer shall comply with, and adhere to, strictly in conformance with all applicable laws and regulations, including, without limitation, those pertaining to environment, health and safety, economic sanctions laws, trade, and export control including as applicable, those of the United States.
- Rent Ready Returns: Rental returns expectations are such that Equipment is to be received back to USI in the manner in which it was shipped out. Failure to do so may result in additional costs at Customer’s expense.
- Miscellaneous: All captions are for convenience only and do not constitute a part of these conditions. Customer represents and warrants to USI that Customer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due, and that it is and continues to be solvent within the meaning of the Federal Bankruptcy Act.