General Terms and Conditions
Effective February 15, 2022
Company: Throughout the entirety of this document (“Terms and Conditions”), the term “Company” shall be understood to encompass any of Sterling’s affiliate companies including Sterling Site Access Solutions, LLC, Midwest Access Solutions, LLC, Sterling Access Solutions, LLC, Sterling Equipment Leasing, LLC, and Sterling Pipeline Solutions, LLC, as identified on associated quotes (“Quotation”).
Customer: Throughout the entirety of these Terms and Conditions, the term “Customer” shall be understood to refer to the company receiving mats and/or Construction Services.
Agreement: The Quotation, Terms & Conditions, and any attachments, hereto represent the entire agreement between Company and the Customer with respect to the purchase, lease or rental of the mats and/or the execution of Construction Services, and supersedes any prior oral or written agreements or discussions; may not be modified or amended unless in writing and signed by each of the parties; and may not be assigned by Customer without the written consent of the Company, which consent will not be unreasonably withheld. This Agreement shall commence the earlier of 1) the day that the first mat is delivered to the jobsite or 2) the commencement of any Construction Services. The Agreement shall remain in effect until the later of 1) the day that the last mat(s) is returned to the Company or the Customer has met all obligations with respect to damaged and unreturned mats and 2) the ending of any field Construction Services including payments to the Company for such services. Unless specifically incorporated in a writing signed between the parties, any terms, and conditions of a Customer purchase order or other writing are not considered part of the terms and conditions of this agreement between the Company and the customer.
Quote Confidentiality: Quotations issued by the Company including all terms and conditions contained therein are confidential. Customer hereby agrees to hold the Quotation including all terms and conditions as confidential information. Customer will not share this confidential information with third parties without the prior written consent of the Company.
Quote Expiration: Quotations are valid for only 3 days except for mat rentals and freight which are to be confirmed at the time of an order.
Sales Taxes: The Customer will pay all applicable sales taxes.
- Except to the extent of any willful misconduct or gross negligent act by Company, the Customer shall indemnify and hold Company harmless from any claim, proceeding, judgment or order (judicial or administrative), lien, security interest, liability, loss, damage, cost, expense (including reasonable attorneys’ fees), penalty or fine, or forfeiture or seizure (collectively, “Damages”) that the Company may sustain or be subjected to, to the extent, directly or indirectly caused by: (a) any damage to or loss of the mats while in the Customer’s possession due to any cause, including, without limitation, collision, fire, lighting, theft, explosion, flood, windstorm or act of god; (b) any injury to or death of any third party or any employee, contractor or agent of Customer, or any damage to the property of any third party as a result of the Customer’s use or the condition of the mats; (c) the failure, actual or alleged, of the Customer to properly use or maintain the mats as provided under this Agreement and in compliance with any applicable laws; and (d) any negligent act or omission of the Customer, its employees, agents, representatives or subcontractors
- The Company shall indemnify and hold the Customer harmless from any Damages (as defined above) that the Customer may sustain or be subjected to as a result of, directly or indirectly, any willful misconduct or gross negligent act by the Company, its employees, agents, representatives, or subcontractors for any injury or death of any third party, or any damage to the property of any third party.
Liability: In no event will either party be liable to the other party or its affiliates (if any) for special, indirect, incidental, or consequential damages (including but not limited to lost profits, damage to goodwill, or loss of business), whether based on the use or possession of the mats. The foregoing limitation shall not apply to claims by third parties for personal injury or third-party property damage. The liability of the Company to the Customer will not exceed the value paid to the Company for a specific project or job. The Customer agrees that this limitation will not effect rent period guaranty, if any.
Failure to Perform: Company’s failure to perform its obligations hereunder shall be excused to the extent and for the period of time such nonperformance is caused by an event of force majeure, including but not limited to war, invasion, fire, explosion, flood, riot, strikes, acts of God, acts or threatened acts of terrorism, energy shortage, material supply chain interruption, acts of government, its agencies or instrumentalities, or contingencies or causes beyond Company’s reasonable control.
Payments: Company will submit timely invoices and Customer will pay such invoices within (30) days after receipt of each invoice. Any payments not paid when due shall accrue interest at the rate of 1% per month from the date due until paid. Failure to make a timely payment shall be an event of default. Company reserves all rights in the event of default, including the right to remove mats at any time.
Notices: If either party is required or permitted to send the other party any notices, such notices shall be in writing and sent to the other party at its last business address by (i) electronic mail or facsimile, (ii) registered or certified mail, postage prepaid, return receipt requested, or (iii) by private overnight delivery service. Notices shall be effective upon receipt.
Governing Law: This Agreement shall be construed and enforced according to the laws of the state of Illinois, without regard to its conflicts of law provisions. The Customer agrees to the jurisdiction and venue of the courts of the Circuit Court for the State and County in which the project is located for resolution of any and all disputes that may arise out of or result from any act or omission of a party hereunder. In the event of any legal action, including any arbitration pursuant to the next section, related to this Agreement, the prevailing party in such action shall be entitled to be reimbursed for its costs and fees (including reasonable attorneys’ fees) incurred in such action.
Dispute Resolution: To the extent not resolved by the parties after a meeting by senior management of each party, any dispute brought by either party shall be decided through arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The arbitration will be before a single arbitrator and the decision of the arbitrator shall be final and binding. Any arbitral award shall be specifically enforceable in any court of competent jurisdiction.
MAT RENTAL AND LEASE
Mat Availability: Sterling Quotations are subject to availability of mats.
Rental Term: Mat rent shall commence the day that mats are delivered to the jobsite and shall continue until the mats are returned to the Company or until all payments for damaged and unreturned mats have been made to the Company.
Freight and Mat Rent: Amounts for freight and mat rent included in quotations are provided only as an estimate. Final freight values and rental rate for mats will be verified with Customer at the time the order is confirmed.
Delivery and Return of Mats: When the Customer is responsible for cost of mat delivery or mat return, the Company shall invoice the Customer for delivery and return of the mats. Such costs shall include, but are not limited to, freight charges, detention fees or penalties and loading fees. In the event the Company agrees that the mats may be relocated from the original location to another location of the Customer’s choosing, the Customer shall pay all costs for such relocation and the customer remains responsible for such mats including all payment obligations.
Damaged Mat Liability and Compensation: The Customer agrees to be responsible for, and assumes all liability for, any and all damage, loss and/or destruction to any mats, while such mats are in Customer’s or its subcontractors’ or agents’ possession, custody, or control except for damage caused by ordinary wear and tear. As applicable, Customer agrees to pay to the Company: (i) the cost to repair any damaged mats while in the possession of, and used by, the Customer (except for any damage caused by any act or omission of the Company), or (ii) the above referenced replacement cost of such mats for mats that are lost, stolen, destroyed or damaged beyond repair (including chemical contamination), while in the Customer’s possession. Regardless of any rent or lease payments made as contemplated herein, the mats always shall remain the property of the Company.
Use of the Mats: During the Rental Term, the Customer shall use the mats only in accordance with the intended purposes made known to and accepted by the Company and in compliance with all applicable laws, regulations, and ordinances. Without the prior written consent of the Company, the Customer shall retain the mats in its possession, shall not relocate the mats to any other location, and shall not permit the mats to be used or possessed by any third party other than approved subcontractors of the Customer. At all times during the Rental Term, title to the mats shall remain in the Company, and the Customer shall keep and maintain the mats free of all liens and encumbrances whatsoever, and upon the request of the Company the Customer shall obtain waivers of any Customer lenders or landlords in order to ensure no claims are made by such lenders or landlords against the title or value of the mats while in the possession of the Customer.
Mat Inspection: The Customer agrees to inspect the mats within 48 hours of delivery and to promptly notify the Company in the event such inspection determines any non-conformance of the mats to the terms of the Agreement. The Company can inspect the mats while in the possession of the Customer.
- The Customer agrees to obtain comprehensive general liability insurance, covering any damage to, or loss or theft of the mats while in the possession of, and used by, the Customer, and in the event of any personal injury or property damage claims relating to the mats while in Customer’s possession.
- Upon request by the Company, the Customer shall furnish to the Company a certificate of insurance evidencing the foregoing coverage in amounts and with insurance companies reasonably approved by the Company and naming the Company, its affiliates, and subsidiaries, as an additional insured and a loss payee. Such insurance shall provide for no less than thirty (30) days prior notice to the Company for any termination of cancellation of such coverages.
Shipping Requirements: Sterling requires 80,000 pounds haul routes suitable for the scope of work and over the road trucks.
Safe Transportation: Prior to the return of the mats and in accordance with all applicable local, state, and federal laws, regulations and ordinance, the party that is responsible for loading and transporting the mats at the end of the project shall ensure the mats are in such condition that they are safe for transport and free of loose debris.
Subletting: The Customer shall neither sublet the mats, nor assign its rights under the Agreement without the Company’s prior written consent, in which event the Customer’s obligations under the Agreement shall continue in full force and effect and, in the case of assignment to another party, Customer shall remain liable for the performance of such obligations jointly and severally with the assignee. Any other type of assignment without the written consent of the Company shall be void and of no force or effect.
Warranty: The Company hereby warrants to the Customer, with respect to the mats, that at the time of installation of the mats:
- The Company either has good and marketable title to the mats shipped to the Customer hereunder or has full rights to provide the mats to the Customer.
- The mats shall conform to Company specifications.
- The mats will not infringe the intellectual property rights of any third party
- Company will use commercially reasonable efforts to deliver mats to the Customer per the Customer’s requirements. However, Company will not be liable for any damages associated with mat deliveries by a third-party carrier.
THE WARRANTIES SET FORTH IN THIS PARAGRAPH ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, COLLATERAL, STATUTORY OR OTHERWISE, AND WHETHER IN CONTRACT, TORT OR OTHERWISE. SALE, RENTAL OR LEASE OF THE MATS IS MADE ON THE BASIS THAT THERE ARE NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES THAT THE PRODUCT DELIVERED HEREUNDER WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE.
Construction Services: the installation or removal of mats, or any associated typical construction activities associated with site access. Company quotation shall specify the construction services agreed to between the parties.
Company shall furnish all supervision, labor, materials, tools, equipment and supplies reasonably necessary for the performance and completion of the Construction Services.
Company warrants that its employees and other personnel assigned to perform the Construction Services shall be trained and experienced in the performance of such Construction Services.
It is understood and agreed by and between the Customer and Company that the Construction Services will be conducted between the Customer and Company such that the Company will cooperate and coordinate with the Customer and others at the project to reasonably comply with the specifications applicable to the Construction Services.
Company agrees to perform the Construction Services in accordance with industry standards and practices in effect at the time this Agreement commences.
Customer shall designate one or more persons who shall be Customer’s authorized representative on-site and off-site. Such authorized representative(s) shall be the only person Company shall contact for instructions, orders, and directions.
Company shall designate one or more persons who shall be Company’s authorized representative(s) on-site and off-site. Such authorized representative(s) shall be the only person(s) to whom Customer may communicate regarding instructions, orders, and directions, except in an emergency. Company’s authorized representative(s) shall attend meetings which may be held at such place and at such intervals as Customer designates.
Company shall not make substitutions in the Construction Services unless consented to in writing by Customer.
Company agrees and understands that (i) Construction Services will be performed as an independent contractor, that no relationship exists as employer and employee between Customer and Company or Company’s employees and other personnel, and that Company and its employees and other personnel will not be eligible to participate in any benefits extended by Customer to its employees, (ii) that Customer shall have no liability or payment obligation with regard to social security taxes or applicable disability, unemployment, Workers’ compensation and similar insurance, all of which shall be borne and be the responsibility of Company, and (iii) Company is responsible for timely satisfying any federal, state and local employment-related expenses and filings, and taxes and employee insurances.
Nothing contained herein shall be construed as establishing a partnership, agency, employment, or joint venture between the parties. Company shall have no authority to bind Customer by any promise or representation unless specifically authorized to do so in advance, and in writing, by Customer.
Late Payments or Non-Payment: Company shall have the right to suspend performance, if Customer fails to pay any amount not disputed in good faith and properly due under this Agreement. Late payments are an event of default of this agreement and Company reserves all rights in the case of default
Company shall comply in all material respects with all federal, state, and local statutes, regulations, laws, ordinances, or orders applicable to the employment of labor on or in connection with the Construction Services.
Customer and Company shall abide by the requirements of 41 C.F.R. 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. Contractor and Subcontractor shall abide by the requirements of 41 C.F.R. 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
- Company shall ensure that at all relevant times it has Company safety compliance program in plan and will reasonably comply in all material respects with health, safety, and environmental programs of Customer as provided by Customer to Company.
- Company shall take reasonable safety precautions with respect to performance of the Construction Services. Company shall comply with reasonable safety measures initiated by Customer and with all applicable laws, ordinances, rules, regulations, and orders of public authorities for the safety of persons or property.
- Company shall promptly report to Customer any accidents at the project involving Company.
- Company shall not be responsible for preexisting hazardous materials or, unless included as part of the Construction Services, any pre-existing site conditions.
Termination: Customer may terminate this Agreement for its own convenience, in whole or in part, upon no less than 30 days written notice. In such event, the Customer shall pay the Company all costs incurred by it in the performance of the Construction Services prior to such notice, including reasonable and normal overhead and profit margins on completed portions of the Services and shall reimburse Company for all reasonable costs and expenses incurred through termination including any costs incurred in anticipation of completion of the Construction Services including but not limited to demobilization and return freight for mats
Schedule: The Company quotation shall set forth the schedule for Construction Services. Company will use commercially reasonable efforts to execute Construction Services per any of the Customer’s modified schedule requirements. However, Company will not be liable for any damages associated with any failure to meet the Customer’s modified schedule dates.
Warranties. Company warrants the Construction Services against any and all deficiencies and defects in workmanship and warrants that the Construction Services will be performed in material compliance with this Agreement until mats are removed. Should Customer discover any defect in workmanship of the Construction Services, Company shall remedy such defect at its own expense within seven (7) business days, or if such remedy cannot be completed in 7 business days, the Company shall promptly commence to remedy such defect and shall diligently prosecute such remedy thereafter. The obligation to remedy the defect in workmanship under this provision shall be the sole remedy available to Customer under this Agreement or otherwise with respect to any warranty claim.
Exclusive Remedy: The warranty in this Article is the only warranty made by Company and is the exclusive remedy of Company for any breach of warranty. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
Additional Conditions Involving Specialty Products
Sterling Equipotential Zone Mats: Equipotential Zone (“EPZ”) mats will be placed and removed only by Sterling employees or representatives authorized by Sterling in writing. EPZ mats will be placed at the location identified by the Customer. The Customer will provide direction to Sterling as it relates to the installation of electrical connectors between adjacent mats that will create a fully networked work pad. The Customer will make the grounding connection(s) of the EPZ work surface, and the grounding of the equipment to be operated on the EPZ work surface. Sterling will not conduct any on-site testing of the conductivity or connectivity of the EPZ mats. The Customer will be responsible for replacement costs associated with damage to or for the replacement cost of any unreturned EPZ mats. Sterling will determine replacement costs.
TerraCross Bridge Systems (“Bridge”): Only Company employees can install, move, and remove a Bridge. The Customer agrees to inspect the installation of the Bridge by the Company and accepts responsibility for all construction and transportation related activities involving the use of the Bridge after acceptance including but not limited to any damage, loss, misuse, or theft of the Bridge. The Customer will only use the Bridge for the purposes as advised to the Company and will not permit others to sublease or use the Bridge without the prior written consent of the Company. Customer will advise the Company of any damage or loss incurred involving the Bridge within 48 hours of such incident.