Smokies Concrete Pumping, LLC – GENERAL TERMS AND CONDITIONS
Effective March 1, 2024
These written terms and conditions shall govern all services rendered by Smokies Concrete Pumping, LLC (hereinafter “Company”), including rental or lease of concrete pumping vehicles, operators, or related equipment by Company, regardless of the form of the request for such services (an “Order”). The recipient of such services shall herein be referred to as the “Customer”. By accepting the services of Company, Customer agrees to these terms and conditions (“Terms”).
1. AGREEMENT. These Terms along with any additional terms, conditions, or rental rates or fees contained within any quotations, job tickets, or invoices, shall govern Customer’s rental or lease of the vehicles, operators, or related equipment from Company (collectively, the "Agreement").
The Agreement shall constitute all terms between Company and Customer with respect to the transaction and shall supersede all previous communications, negotiations, or proposals (written or verbal) between Company and Customer. No course of conduct, conversation, or trade custom which is at variance from these Terms or the Agreement shall bind or otherwise alter the terms of the Agreement.
In the event of a conflict between component parts of the Agreement, the following order of priority will govern: (a) quotations; (b) job tickets (c) invoices; (d) these Terms. Except for periodic updates to these Terms in accordance with Section 25 herein, there shall not be any waiver, amendment, or modification of the Agreement except in writing and signed by an officer of Company and an officer of Customer.
2. CONTROL BY CUSTOMER DURING RENTAL PERIOD. Customer acknowledges and agrees that all vehicles, operators, or equipment are for the period of rental or lease (“Rental Period”) under the exclusive supervision and control of Customer. The Rental Period shall run from (i) the time the vehicle, operators, or equipment depart for Customer’s project (provided, however, that regardless of the actual travel time between such location and Customer’s jobsite, Customer’s rental charges will include at least one (1) hour of travel time) to (ii) the time vehicle, operators, or equipment arrives at Company’s premises after returning from Customer’s project. The Rental Period shall, as applicable, be extended to include all time necessary for the transport, mobilization, demobilization, assembly and disassembly of the vehicle and equipment and restoration of the vehicle and equipment to its condition at the beginning of the Rental Period, when necessary. It is Customer’s responsibility to give specific instructions and directions to all persons operating the vehicles or equipment regarding the tasks required by Customer, and Customer agrees to provide or otherwise select competent and experienced personnel to direct the operation of the vehicles and equipment. Customer agrees to adhere to the standard of care applicable to the area when supervising and controlling the vehicles, operators, and equipment rented or leased.
3. ASSUMPTION AND RELEASE. Customer assumes all of the risks associated with the performance of any and all work occurring under or arising out of this Agreement, including, without limitation, any risks, claims, suits, or causes of action that may arise from negligence or carelessness on the part of Customer, or Customer’s agents, servants or employees, independent contractors, any operators under Customer’s supervision and control invitees. To the maximum extent permitted by applicable law, Customer waives, releases and discharges Company and its agents, servants, or employees, from liability, including but not limited to, liability arising from any negligence or fault, for any death, disability, personal injury, or property damage, which may occur or arise out of or in conjunction with the rental or lease under this Agreement.
4. INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES TO INDEMNIFY AND HOLD COMPANY, ITS EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS, DEMANDS, ACTIONS, DAMAGES, LIABILITIES, LOSSES AND EXPENSES INCLUDING, BUT NOT LIMITED TO, REASONABLE LEGAL FEES AND COSTS ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE SERVICES PROVIDED TO CUSTOMER BY COMPANY, INCLUDING SPECIFICALLY RENTAL OR LEASE OF THE VEHCILE, OPERATOR, AND EQUIPMENT AND ANY ACTS OR OMISSIONS OF OPERATOR, DURING THE RENTAL PERIOD, EXCEPT TO THE EXTENT SUCH CLAIMS ARE FOUND BY A COURT OF COMPETENT JURISDICTION TO BE SOLELY ATRIBUTABLE TO COMPANY’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, “INDEMNIFIED CLAIMS”). SUCH INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, THOSE FOR DEATH OR INJURY TO PERSONS OR DAMAGE OR INJURY TO PROPERTY. THE PARTIES INTEND THAT THIS DUTY TO INDEMNIFY IS AS BROAD AS PERMITTED BY APPLICABLE LAW.
In no event will Customer settle or compromise any Indemnified Claim without Company’s prior written consent. Moreover, Customer’s duty to indemnify Company will include (i) all costs or expenses arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorneys’ fees, and costs of settlement; and (ii) the cost of any investigation or adjustment of the Indemnified Claim initiated by Company, Company’s insurance carriers or Company’s third-party adjusters. The indemnification above will not be limited in any way by the amounts which may be covered by applicable insurance.
5. INSURANCE. Customer agrees to purchase, maintain and carry the following insurance coverages at all times during the Rental Period: (a) worker's compensation and employer's liability insurance, with limits of at least the statutory minimum or $1,000,000, whichever is greater; (b) primary non- contributory commercial general liability (“CGL”) insurance on an occurrence basis, including bodily injury and property damage coverage with minimum limits of $1,000,000 per occurrence and $2,000,000, in the aggregate; (c) excess/umbrella following form non-contributory insurance in the amount of at least $5,000,000 and Customer’s primary and excess/umbrella policies must be endorsed so that they are primary and non-contributory to all of Company’s insurance policies; (d) inland marine/all-risk and or builder’s risk which includes an all-risk physical damage insurance, on a primary non-contributory basis, to cover the full insurable value of any equipment, for its loss or damage from any and all causes, including, but not limited to, overloading, misuse, fire, theft, flood, explosion, overturn, accident, and acts of God and Customer will pay all deductibles and or coinsurance requirements of the inland marine/builders risk policies provided by Customer and Customer will also provide the greater of 6 months or $500,000.00 rental reimbursement coverage or similar coverages for Company’s benefit for any loss or if the equipment is damaged, stolen, lost or destroyed. All policies are to be written by insurance companies acceptable to Company. Company shall be made an additional insured on all insurance policies obtained by Customer hereunder, and certificates of insurance shall be provided by Customer.
Customer will name Company as a primary loss payee on all insurance policies. All of Company’s policies, and the policies of anyone Company is required to insure will be excess over all of Customer’s policies. All Customer’s policies will be endorsed to require the insurer to give at least thirty (30) days advance notice to all insured’s, including additional insured’s, prior to cancellation or non-renewal. All Customer’s policies must remove any exclusion for explosion, collapse, and underground operations (XCU); all Customer’s policies must remove the “employer’s liability exclusion” for all additional insureds. All Customer’s policies must include coverage for blanket contractual liability for the obligations assumed here-under and also for the liabilities assumed in the Indemnity section above. Customer can provide a project specific insurance policy for the above referenced commercial general liability insurance or may substitute a commercial general liability insurance policy with an owner's or contractor’s protective insurance, project management protective liability insurance, an owner-controlled insurance policy, or a contractor controlled insurance policy as long as the policies provide the same or better coverages for Company. Customer's agreements to indemnify and hold Company harmless from any liability, damage and loss are in addition to, and not an alternative to, these insurance provisions and the purchase of any of the above coverages will not operate to waive any of the above indemnity provisions. To the extent that Customer performs under this Agreement without obtaining the above coverages, such an occurrence will not operate, in any way, as a waiver of Company's right to maintain any breach of contract action against Customer. Customer hereby agrees to waive any and all rights of subrogation and any and all lien rights (including those arising from worker's compensation/employer's liability policies or other employee benefit programs, commercial general liability policies, or similar policies) which may accrue to it or its insurers, including, without limitation, rights of subrogation and lien rights. Customer understands that this waiver will bind its insurers of all levels and agrees to put these insurers on notice of this waiver and to have any necessary endorsements added to the insurance policies applicable to this Agreement.
6. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, INDIRECT, SPECIAL, LIQUIDATED, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND SUFFERED BY CUSTOMER IN CONNECTION WITH OR ARISING OUT OF THE SERVICES PROVIDED UNDER THE PARTIES’ AGREEMENT OR RENTAL OR LEASE OF THE VEHICLES, OPERATOR, OR EQUIPMENT, WHETHER ALLEGED AS BREACH OF CONTRACT, TORTIOUS CONDUCT OR ANY OTHER THEORY.
COMPANY’S LIABILITY TO CUSTOMER FOR ANY CLAIM, LOSS, OR DAMAGE SHALL IN NO CASE EXCEED THE RENTAL CHARGES RECEIVED BY COMPANY DURING THE RENTAL PERIOD FOR WHICH THE CAUSE OF ACTION AROSE. THE LIMITATIONS IN THIS PARAGRAPH SHALL APPLY TO ALL CLAIMS ARISING PURSUANT TO AGREEMENT, REGARDLESS OF THEORY ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY ANY DEFECT, ACTION OR INACTION OF THE VEHICLE, OPERATOR OR EQUIPMENT DURING THE RENTAL PERIOD.
7. JOB SITE RESPONSIBILITIES. Customer, not Company, is responsible for providing a pumpable concrete mix meeting the requirements of the Project. In addition to Customer’s general indemnification obligations toward Company as set forth in these Terms, Customer will indemnify and hold Company harmless from and against all claims that may arise from (a) improperly batched, mixed, delivered or placed concrete or poorly graded or mixed materials, or (b) any ad-mixtures. All such claims shall also be treated as Indemnified Claims under Section 4 of these Terms.
Company is not responsible for the condition or mix of the concrete or the suitability or fitness of the concrete for Customer’s project or for any particular purpose of Customer. Customer will also provide (i) reasonable scheduling of concrete delivery, labor force for set-up of pumping system, handling of pumping system while placing and grout for priming system; (ii) a suitable place for on-site cleanup of system and pump and equipment wash-down; (iii) safe and reasonable ingress to and egress from the job site and access to the specific work area; (iv) labor for erection, dismantling, and cleanup of pumping system and if necessary; hoisting of lines above ground level; and (v) any necessary permits, easements, or licenses that may be required by state or local agencies for the performance of the concrete pumping service provided by Company. Customer assumes all responsibility for the removal of the rented or leased vehicle or equipment from job site if tow trucks or wreckers are required due to weather, road, or project conditions. It is Customer’s responsibility to notify Company in at least two (2) days in advance of any anticipated or known change to the Rental Period.
8. CONDITIONS – GROUND/POWERLINES. Customer assumes all responsibility and is solely responsible for ground conditions and proper use of materials during the transportation, storage, and the placement. The vehicle or equipment must not be assembled or used by Customer unless the project ground conditions (i) are firm, drained, and graded to a sufficient extent so that, in conjunction (if necessary) with the use of supporting materials and, as applicable, manufacturer's specifications are met; and (ii) meet the requirements of AASHTO H-20 / HS-20. Customer will ensure that ground preparations at the project necessary to meet the requirements hereunder and herein are met, including identification, communication, and elimination of hazards (above or below grade) at the project and in the set-up area.
If the Project conditions are inadequate to provide clear passage or to support the operation of the vehicles or equipment, or if subsurface conditions necessitate reinforcement and/or relocation of facilities and/or services, all such work and the co-ordination of same required to permit the work to proceed in a timely manner will be the responsibility of Customer and at Customer’s expense. Customer will perform or have performed all necessary inspections or testing to determine the nature of the ground or soil and its ability to support the vehicle and equipment while in operation or otherwise. If additional towing or pushing of the vehicle or equipment is required because of inadequate site conditions, additional costs incurred (including costs of repairing damage to the vehicle or equipment) will be billed at Company’s cost plus fifteen (15%) percent. Customer assumes all responsibility to protect the vehicle and equipment and persons in or around them from the danger of power lines and agrees that all work will be done in accordance with all applicable safety regulations and/or standards. Customer will not expose the vehicle, operator, equipment, or any persons in or around them to the danger of energized power lines. Customer will identify and de-energize all power lines in the work area prior to the vehicle or equipment being operated in or around such power lines. In addition to the foregoing, Customer will keep the vehicle and equipment clear of such power lines at the distances required by OSHA, ANSI and any other safety regulations or standards. If de-energizing power lines is not feasible or permitted by the applicable utility, then Customer is responsible for the insulating of any power lines, the grounding of all vehicle and equipment and will be required to use safety measures or other protective procedures and equipment that are specifically designed to prevent electrocution.
9. CHANGE IN CONDITIONS. Any changes to the Project conditions from the time of the proposal to the time the Rental Period begins will be the responsibility of Customer. Customer will immediately notify Company by email of any changes not previously disclosed regarding the setup or Project conditions. Changes to the Project conditions may result in an adjustment in the appropriate Rental Period, vehicle, or equipment necessary to perform the work and associated charges.
10. LOCATION OF VEHICLE AND EQUIPMENT. Customer will not remove the vehicle or equipment from the project disclosed and specified to Company at the time of contract between the parties without prior written approval of Company. Customer will immediately inform Company in writing upon demand of the exact location of the vehicle or equipment while it is in Customer’s possession.
11. DAMAGE TO OR DESTRUCTION OF VEHICLE OR EQUIPMENT. The vehicle and equipment is deemed to be in Customer’s possession during the entire Rental Period, and Customer solely and entirely assumes all risk of loss of and damage to the vehicle or equipment during the Rental Period from any and all causes, including, but not limited to, loss and/or damage due to theft, vandalism, fire, accident, casualty and acts of God. No loss of or damage to the vehicle or equipment will reduce or impair any obligation of Customer under this Agreement, which will continue in full force and effect. In the event of loss or damage that is not beyond repair as authorized by the manufacturer, Customer will, at Customer's sole cost and expense, promptly restore the vehicle or equipment to substantially the same condition and repair as it was in at the commencement of the Rental Period, in which case this Agreement will remain in full force and effect and Customer will be entitled to use and operate the vehicle and equipment for the balance of the Rental Period (which, for the absence of confusion, will end upon the return of vehicle and equipment as restored to its original conditions). If the vehicle or equipment is damaged beyond repair or is lost or stolen (an “Event of Loss”), then Customer will promptly pay to Company an amount equal to the replacement value of the vehicle and equipment (as determined by Company in its reasonable discretion), in which event Company will have the option to either (a) replace the vehicle or equipment with vehicle or equipment that is substantially similar to the vehicle and equipment, in which case this Agreement will continue in full force and effect for the remainder of the Rental Period and all references in this Agreement to the vehicle or equipment will be deemed to refer to such replacement equipment; or (b) terminate this Agreement (and the Rental Period) effective upon Company's receipt of such payment from Customer. Company will give Customer written notice as to which of the foregoing options Company has elected within thirty (30) days after the date on which the Event of Loss occurred. If Company elects the option described in (b) above, then Customer will be obligated to make any rental payments that become due and payable through the date of Customer’s payment of the replacement value of the vehicle or equipment to Company. Customer will furnish to Company such proof of the Event of Loss as Company may reasonably require. Company may enter the premises where the vehicle and equipment is kept in order to inspect it and to arrange for its disposal. In the event Company receives any net proceeds from the disposal of any totaled vehicle or equipment, Company will pay to Customer an amount equal to the lesser of (i) the replacement value paid to Company by Customer; or (ii) the total amount of any net proceeds received by Company (less any deductible or other costs paid by Company) from the disposition of the vehicle and equipment, upon Company's receipt of such proceeds.
12. MAINTENANCE AND INSPECTION. Customer will maintain the vehicle or equipment in good, safe operating condition during the Rental Period and will bear all cost of whatever nature incurred while doing so. Customer will allow Company entry upon or access to any premises where the vehicle or equipment is stored or used, at all reasonable times, to locate and inspect the state and condition of the vehicle or equipment. Customer agrees to inspect the vehicle and equipment upon taking delivery. Customer's failure to notify Company in writing of any deficiencies in the vehicle and equipment promptly upon taking delivery is Customer's acknowledgement that the vehicle and equipment was, when delivered, in good, safe and serviceable condition in full compliance with the terms of this Agreement, in good condition and repair and is the type of vehicle or equipment that Customer has requested and fit for its intended use by Customer. For Rental Periods that extend beyond thirty (30) days, Customer will: (i) call into Company the hours that the vehicle and equipment has been used on a monthly basis so that Company can calculate any excess hours used on the vehicle and equipment; (ii) conduct all maintenance on the vehicle or equipment in accordance with the manufacturer's requirements including completion of all required inspection and will bear all costs of whatever nature incurred in doing so; (iii) supply Company with monthly maintenance reports. Customer acknowledges that it has been provided with the manufacturer's required maintenance and inspection schedules for the vehicle and equipment and that it is Customer's responsibility to comply with those schedules during any Rental Period, at Customer's expense. Failure to comply with these requirements will result in Customer being charged for the applicable maintenance due at the time Customer returns the vehicle and equipment at Company's normal rates. In the event vehicle or equipment is damaged or made inoperable, in any way during the Rental Period, Customer will notify Company in writing, within two (2) business days of such occurrence, specifying the nature and extent of the damage. Without first obtaining Company's written consent, Customer will not incur any liability or expend any money for Company's account. The title to all parts, materials and supplies furnished to the vehicle and equipment becomes the property of Company. All accessories or attachments not listed in the Order or necessarily includable as part of the vehicle and equipment will be furnished by Customer at its own expense.
13. ACCIDENT INVESTIGATION. As part of Customer's obligations hereunder and as stated in Paragraph 4, Customer will bear the cost of any investigation initiated by Company, Company's insurance carriers or Company's third-party adjusters into any accident during the Rental Period involving the vehicle, operator, or equipment. The decision to initiate any such investigation and the scope thereof will be at the sole discretion of Company, Company's insurance carriers or Company's third-party adjusters. These costs will be invoiced to Customer along with rental fees and other costs incurred under this Agreement.
14. NO WARRANTIES; “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO ANY RENTED OR LEASED VEHICLE, OPERATOR, OR EQUIPMENT PROVIDED BY COMPANY. AS SUCH, THERE SHALL NOT BE ANY WARRANTY MADE BY COMPANY TO CUSTOMER AS TO THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS DESIGN, ITS CAPACITY, ITS PERFORMANCE, ITS OPERATION, ITS CONSTRUCTION OR WORKMANSHIP, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. NOR IS ANY WARRANTY MADE BY COMPANY TO CUSTOMER AS TO ADHERENCE OR SATISFACTION OF THE REQUIREMENTS OF CUSTOMER’S PROJECT. CUSTOMER LEASES THE VEHICLE, OPERATOR, AND EQUIPMENT “AS IS”. NOTWITHSTANDING THE FOREGOING, COMPANY SHALL REPLACE THE VEHICLE OR EQUIPMENT WITH A SIMILAR VEHICLE OR EQUIPMENT IF THEY FAIL TO OPERATE IN ACCORDANCE WITH THE MANUFACTURERS SPECIFICATIONS AND/OR OPERATING INSTRUCTIONS. SUCH A REPLACEMENT SHALL BE MADE AS SOON AS REASONABLY POSSIBLE AFTER CUSTOMER RETURNS THE NON-CONFORMING VEHICLE OR EQUIPMENT. RETURN OR EXCHANGE OF THE VEHICLE OR EQUIPMENT BY COMPANY TO CUSTOMER SHALL BE THE SOLE REMEDY AVAILABLE TO CUSTOMER IN THE CASE OF DEFECT THEREIN.
15. DELAYS STOPPAGES AND BACKCHARGES. No back charges will be charged against Company for delays or stoppage that result from (a) Customer’s breach of, or noncompliance with, this Agreement; (b) unpumpable mixes; (c) mechanical breakdown or failure of the vehicle or equipment that is caused by difficult or unpumpable mixes; (d) for the first (1) one hour of any other mechanical breakdown or failure of the vehicle or equipment; (e) late arrival for a scheduled afternoon pour; (f) damage to asphalt, curbs, trees, landscaping, utility lines, septic systems or any other property within the site’s property line; (g) strikes, lockouts, acts of God, adverse weather or other causes beyond the reasonable control of Company; (h) damage to property beyond curb line, or (i) loss of concrete resulting from addition of water. Back charges for concrete finisher overtime labor costs, if otherwise allowable under this paragraph, will not exceed the actual time of the delay or stoppage of the vehicle and equipment, less the first one (1) hour of such breakdown or failure (excluded above). Back charges for loss of concrete, if otherwise allowable, will accrue only for that amount of concrete lost that exceeds five percent (5%) of the total volume of concrete pumped in the one (1) day period during which such loss occurred. In no event will back charges accruing exceed the total rental price chargeable by Company for the Rental Period in which the loss occurs. Back charges for damages resulting from delay due to the fault of Company will be deemed waived by Customer unless made in writing to Company within forty-eight (48) hours from the delay or stoppage.
16. SUIT LIMITATION. Any action, demand, lawsuit, arbitration or any other claim by Customer against Company arising out of or related to this Agreement must be commenced within one (1) year from the date on which any such right, claim, or cause of action will have first accrued.
17. OPERATOR / EMPLOYEE. If an operator is provided with the vehicle and equipment, Customer will be responsible for payment of that operator’s wages and benefits during the Rental Period, the cost of which wages and benefits will be included as part of the rental charges, even though such wages and benefits may be administered by Company. The term “employee” or “operator” will include all operators, oilers, riggers, millwrights, helpers, technicians, or any other person that is assembling, disassembling, mobilizing, demobilizing, and performing maintenance work or repair work on the vehicle and equipment.
18. DEFAULT AND REMEDIES.
Used in these General Terms, an “Event of Default” will occur if: (i) Customer fails to make any payment, as and when required under this Agreement; (ii) Customer breaches or fails to perform at the time and in the manner herein specified any term, covenant or condition contained in this Agreement and such breach or failure continues for five (5) days after written notice thereof to Customer; (iii) Customer files or has filed against it a petition in bankruptcy, or a custodian, receiver or trustee is appointed for Customer or for a substantial part of its assets, or Customer becomes insolvent or unable to pay its debts as they become due, or any substantial part of Customer's property becomes subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency; or (iv) Customer is acquired by or merges with any other entity, unless this Agreement is assumed in writing by the new entity and such assumption is agreed to by Company.
Upon an Event of Default, then Company will have the right, without notice or demand which are hereby waived by Customer, to exercise any of the following remedies: (i) take possession of the vehicle, operator or equipment (damages occasioned by such taking of possession being expressly waived by Customer) or otherwise require Customer to assemble the vehicle, operator, or equipment and to make them available to Company at any place and at any time as may be designated by Company, and thereupon Customer's right to the possession of the vehicle, operator, or equipment will terminate, and Customer will remain and be liable for the payment of all rental charges for the Rental Period and all other obligations imposed upon Customer hereunder, all of which will become immediately due and payable; (ii) sue for and recover all rental charges, then accrued or thereafter accruing, with respect to the vehicle, operator, or equipment; (iii) terminate Customer's rights hereunder; or (iv) pursue any other remedy at law or in equity.
No right or remedy conferred or reserved to Company by this Agreement is exclusive of any other right or remedy granted herein or provided by law; all rights and remedies of Company conferred upon Company by this Agreement or by law are cumulative and in addition to every other right and remedy available to Company. In the event of any default or failure specified above, Customer will be liable for all costs and expenses expended or incurred by Company in the enforcement of its rights hereunder (including reasonable attorneys' fees and court or Arbitration Costs). If any of the above Events of Default occur to any guarantor or any other party liable for payment or performance of Customer's obligations under this Agreement, such event will also be considered an Event of Default under this Agreement. Company has the right to choose among the remedies available to it and to exercise any or all of them at any time after a default by Customer. A waiver of one default by Company does not apply to any future or other default.
19. TITLE TO VEHICLE/EQUIPMENT. The vehicle and equipment will at all times remain the property of Company, and Customer will do nothing to encumber or interfere with those rights and will take all actions necessary to protect those rights. Customer will not acquire any interest in or rights to the vehicle and equipment, other than the temporary rental or lease rights set forth in, and as limited by, this Agreement.
20. DEMURRAGE. If as a result of Customer's actions and unless permission is granted by Company, if the vehicle and equipment is not returned during or at the end of the estimated Rental Period set forth on the job ticket, then for every hour, or portion thereof, from the end of the agreed upon Rental Period to the time when the vehicle or equipment is returned to Company as required herein, Customer will pay a rental rate equal to three (3) times the standard hourly rental rate for such vehicle or equipment.
21. SUSPENSION PERIOD. If Customer has rented or leased the vehicle, operator, or equipment for a Rental Period extending beyond thirty (30) days and notifies Company in writing that Customer will not need the vehicle, operator, or equipment for such period(s) of time as are specified in such notice (the "Idle Periods"), and Company desires to rent the vehicle, operator, or equipment to a third party during some or all of the Idle Periods, then Company will have the right to suspend this Agreement by notifying Customer in writing of those portions of the Idle Periods during which this Agreement will be suspended (each, a "Suspension Period"; together, the "Suspension Periods"). During each Suspension Period: (a) this Agreement will remain in full force and effect and all of Customer's obligations under this Agreement will remain in full force and effect, except for Customer's obligation to pay rent during the Suspension Period or Periods; (b) Company will have the right to rent the vehicle, operator, and equipment to one or more other third parties; and (c) Customer will not be entitled to use vehicle, operator, or equipment during the Suspension Period or Periods. At the end of each Suspension Period, Company will once again make the vehicle, operator, and equipment available to Customer in substantially the same condition and repair as it was in at the start of such Suspension Period, normal wear and tear excepted.
22. RENTAL CHARGES. If a periodic rental rate is charged by Company, rental charges will be billed to Customer for each chargeable period (or portion thereof) within the Rental Period. If a fixed term rental rate is charged by Company, rental charges are billed to Customer for the full fixed term even if the vehicle, operator, and equipment are returned before the end of the term. Charges will be at Company’s quoted or published prices. No discount will be given for lack of use of the vehicle, operator, or equipment. Customer will be responsible for any sales, use, excise, value added, utility, personal property or other taxes and any license fees, permits or assessments relating to Customer’s use or possession. Customer will pay such taxes and other charges to Company in accordance with invoices submitted by Company. There shall be due a minimum of four (4) hours rental charge with cancellation of any rental or lease by Customer.
23. RENTAL PAYMENTS; NO SET-OFF. All invoices submitted by Company will be due and payable by Customer within thirty (30) days from the date of invoice or on or before the tenth (10th) day of the month following the month in which the work was performed, whichever is earlier. Customer will pay to Company an interest penalty of the highest rate allowed under applicable law, or 1.5% per month, whichever is greater, on the total balance of any and all invoices, or any portion of any and all invoices, that remain unpaid beyond the due date of such invoice. Company may, upon reasonable notice, require Customer to pay rentals in advance if Customer falls more than (30) days behind in making any payment at any time. Customer acknowledges that a fundamental principle of this Agreement is that it will pay the sums due under this Agreement as and when required. Accordingly, Customer unconditionally and irrevocably waives any and all rights to withhold from, set-off against, reduce or delay any amount owed to Company, for any reason or by any amount whatsoever, including by any amount claimed to be owed by Company to Customer.
24. SECURITY DEPOSIT. Any security deposit paid by Customer to Company is paid to guarantee Customer’s full and faithful performance of all terms, conditions and provisions of this Agreement, including rental payments. When Customer performs all such terms, conditions and provisions, the security deposit will be repaid without interest to Customer.
25. MODIFICATIONS TO GENERAL TERMS. Company reserves the right to change these General Terms at any time. Notice of any such changes will be provided to Customer by posting said changes on Company’s website and/or providing notice to Customer by email United States Mail. The updated General Terms will become effective immediately upon posting to the website or upon notice to Customer, whichever is earlier. By placing an Order with Company after such modifications have been posted or noticed, Customer accepts and agrees to be bound by such modified Terms with respect to such Order.
26. COMPLIANCE WITH LAW. Customer will, at all times, (a) comply with all applicable federal, state, provincial and local laws and regulations relating to this Agreement; and (b) have in place and maintain any and all licenses, permits, and other authorizations required by federal, state and local laws.
27. INTERPRETATION. This Agreement will be interpreted as an understanding of parties on equal footing and without resort to any rule of construction resolving ambiguity against the drafter. The laws of the State of Tennessee, without application of conflict of laws analysis, shall apply to the interpretation and enforcement of this Agreement; provided, however, that if the project in conjunction with which the rental or lease is made is located in a state other than the State of Tennessee and that other state’s law requires that a construction indemnity statute of that other state apply to the services rendered by Company hereunder, then that other state’s construction indemnity statute will apply.
28. INDEPENDENT SERVICE PROVIDER. This Agreement does not create or evidence a partnership or joint venture between Customer and Company, and Customer and its agents, servants, and employees, will at all times, be an independent service provider, and employees of Customer will in no event be considered employees of Company, nor will they be eligible for any employee benefits or other benefits from Company. It is expressly intended and understood that no partnership or joint venture shall arise.
29. SEVERABILITY; SURVIVAL. To The provisions of this Agreement will be interpreted to be valid and enforceable under applicable law; provided, however, that if any provision is held invalid or unenforceable, such provision will be deemed deleted from the Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The Agreement's remaining provisions will stay in effect.
30. ATTORNEY'S FEES. Customer will pay or reimburse to Company all costs and expenses, including attorneys’ fees, incurred by Company in exercising any of its rights or remedies or enforcing any of the terms or conditions found in this Agreement.
31. NO ASSIGNMENT. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns, except that Customer will not be permitted to assign this Agreement or delegate any rights or responsibilities hereunder without the express written consent of Company. Company shall have the absolute right to assign its rights and obligations under this Agreement.
32. WAIVERS. No delay or failure to exercise any right or remedy accruing to Company or any breach or default of Customer under this Agreement will impair any such right or remedy of Company or be construed as a waiver of any such breach or default, or an acquiescence therein, or a waiver of or acquiescence in any breach or default thereafter occurring; nor will waiver of a single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of Company of any breach or default by Customer under this Agreement, or any waiver on the part of Company of any provision or condition of this Agreement, must be in writing and will be effective only to the extent specifically set forth in such writing.
33. DISPUTE RESOLUTION. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by Customer. In such case, Customer and Company shall endeavor to resolve claims, disputes and other matters in question between them by mediation. Requests for mediation shall be in writing to the other party to this Agreement. The request may be made concurrently with the filing of a demand for arbitration or litigation, as applicable under these Terms, but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of ninety (90) days from the date of receipt of the request for mediation, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator fee and any filing fees equally. The mediation shall be held in the County where the project is located unless another location is mutually agreed. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. Company may elect to dispense with any mediation requirement in cases which involve a claim to collect rent or amounts owed to Company.
Any claim, dispute or other matter involving an aggregate of all claims equal to or less than $100,000.00 in question arising out of or related to this Agreement shall be submitted to arbitration. The arbitration shall be in accordance with the Construction Industry Arbitration rules of the American Arbitration Association currently in effect. Demand for arbitration under this paragraph shall be filed in writing with the other party to this agreement. The parties shall attempt to choose an arbitrator to arbitrate the claim, dispute, or matter in question, but failing to do so within 90 days from the request for mediation, either party may submit the demand for arbitration to the American Arbitration Association whose procedures for choosing an arbitrator shall then be followed. Any demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. Unless otherwise agreed by the parties, any arbitration demanded and conducted hereunder shall be held in Sevier County, Tennessee. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matters in question would be barred by the applicable statute of limitations. In no event shall the provisions of this article be used to extend the applicable statute of limitations. The foregoing agreement to arbitrate shall be specifically enforceable in the court and the applicable law and any court having jurisdiction thereof. The award rendered by the arbitrators shall be final and judgment may be entered in any court of competent jurisdiction. The arbitrability of a given claim and what parties are subject to arbitration shall be decided by the arbitrator.
Any claim, dispute or other matter arising from this Agreement and involving an aggregate of all claims in excess of $100,000.00 between Company and Customer shall, at Company’s sole option, be decided by arbitration in accordance with the arbitration procedures set forth above. To the extent that Company does not elect to require arbitration, any claim, dispute, or other matter arising from this Agreement and involving an aggregate of all claims in excess of $100,000.00 between Company and Customer, shall be submitted for adjudication by the Chancery Court of Sevier County, Tennessee, and the parties hereto expressly agree to submit to jurisdiction of Sevier County, Tennessee. DUE TO THE SPECIALIZED NATURE OF CONSTRUCTION LITIGATION, EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
34. FORCE MAJEURE. In the event Company will be delayed or hindered in, or prevented from, the performance of any act required of it hereunder by reason of strike, inability to procure materials, failure of power, telecommunications or connectivity failure, restrictive governmental laws or regulations, riot, insurrection, war, act of God, or other event outside the reasonable control or anticipation of Company (each such cause or event being hereinafter referred to as a “Force Majeure Event”), then performance of such acts will be excused for the period of the delay. Any time Company is experiencing a Force Majeure Event, Company will endeavor to give notice to Customer with such notice describing the Force Majeure and the nature of the failure or delay and giving an estimate as to how long the delay will last.
35. THIRD PARTY BENEFICIARY. Nothing in this Agreement, expressed or implied, is intended to confer upon any person or entity, other than the parties and their legal successors and permitted assigns, any rights, benefits, or obligations.
36. NOTICE. All notices which are to be given by the parties pursuant to this Agreement will be provided to the respective party at the addresses contained in the Order or to the principal office of the party to be notified will be deemed to have been properly given when either (a) personally delivered or (b) mailed by registered or certified mail, postage prepaid with return receipt requested. A copy of any such notice, although not constituting official notice, will be provided to the respective party by electronic mail.
37. HEADINGS. The section or section headings in this Agreement are inserted only as a matter of convenience and for reference and in no way, define, limit or describe the scope or intent of this Agreement or in any way affect this Agreement or its interpretation.
38. RIGHT TO CURE. If Customer fails to pay or perform any of its obligations under this Agreement, then Company may itself pay or perform such obligations and the amount of any payment plus Company's reasonable expenses in connection with such payment or performance, together with any interest due hereunder, will be deemed additional Rent, payable by Customer on demand.