TERMS AND CONDITIONS OF
CONTRACT
- 1. INDEMNIFICATION- Lessee agrees to indemnify and save lessor, its
employees and agents harmless from all claims for death or injury to
persons, including lessor’s employees, of all loss, damage or injury to
property, including the equipment, arising in any manner out of lessee’s
operation. Lessee’s duty to indemnify thereunder shall include all costs
or expenses arising out of all claims specified herein, including all
court and/or arbitration costs, filing fees, attorney’s fees and costs of
settlement. Lessee shall be required to indemnify lessor for lessor’s own
negligence or fault, whether the negligence or fault of the lessor be
direct, indirect or derivative in nature. However, the lessee shall not be
required to indemnify lessor for any claim cause by or resulting from the
sole negligence or willful misconduct of the lessor, the lessor’s agents,
servants, or independent contractors who are directly responsible to the
lessor. The indemnification above shall not be limited in any way by any
limitation on the amount or type of damage, compensation or benefits
payable by or for the lessee under worker’s compensation acts, disability
benefit acts, or other employee benefits acts. The lessee’s obligation
hereunder shall further not be limited by the amount of its liability
insurance and the purchase of such insurance for lessor shall not operate
to waive any of the above obligations. This provision is separate and
distinct from any other provision or paragraph in this contract, including
any provision or paragraph concerning partial indemnification or
procurement of insurance. If any work, phrase, or sentence of this
paragraph or any other paragraph is declared invalid, then all other
words, phrases, or sentences of all paragraphs of this contract shall stand.
If this paragraph or any other paragraph is declared invalid, then all
other paragraphs of this contract shall stand. Furthermore, as part of
lessee’s additional obligations hereunder, lessee shall bear the cost of
any investigation or adjustment (including but not limited to, attorneys
fees and costs, private investigator/adjuster fees and costs, expert fees
and costs, costs of storage and down time for inability to use the
equipment, and costs of testing of property, equipment or other items)
initiated by the lessor, lessor’s insurance carriers or lessor’s third
party adjusters into any accident of any kind, when such accident, or
occurrence happens, involving directly or indirectly the leased equipment,
whether or not such accident involves personal injury, death or damage to
the leased equipment or other property or all of these.
- INSURANCE- The lessee
agrees to purchase the following insurance coverage’s prior to the
equipment’s arrival on the job site. The lessee shall procure the
following coverage’s for lessor: 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 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) inland marine/all risk
physical damage insurance, on a primary non-contributory basis, to cover
the full insurable value of the equipment, including any boom or jib, 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 occurring during the rental term, for the greater of
$1,000,000 or the valuation of the equipment listed on the front page of
this contract, and the parties agree that this is the actual value of the
equipment for the purposes of fixing the equipment’s insurable value, d)
all policies are to be written by insurance companies acceptable to the
lessor, e) the lessor and all affiliated partnerships, joint ventures,
corporations and anyone else who lessor is required to name as an
additional insured, are to be included as additional insureds on all liability
insurance policies, including excess/umbrella policies (ISO Form CG 20 10
11 85 must be used). lessee shall name lessor as a Loss Payee on all
insurance policies, and lessee shall provide all insurance certificates to
lessor when requested, f)all policies shall be endorsed to require the
insurer to give thirty (30) days advance notice to all insureds prior to
cancellation, g) all of lessors’, and anyone lessor is required to insure,
policies are excess over all of lessee’s policies. In the event of loss proceeds
of property damage insurance on the equipment shall be made payable to
lessor. Lessee’s agreements to indemnify and hold lessor 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
shall not operate to waive any of the above indemnity provisions. To the
extent that the lessee may perform under this lease without obtaining the
above coverages, such an occurrence shall not operate, in any way, as a
waiver of the lessor’s right to maintain any breach of contract action
against the lessee. Lessee 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. This shall include, but
not be limited to, rights of subrogation and lien rights. The lessee
understands that this waiver shall 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
lease.
- OPERATION OF
EQUIPMENT—Lessee agrees to inspect the equipment upon arrival at the
jobsite and failure to notify lessor in writing of any deficiencies in the
equipment within one hour after equipment’s arrival on the jobsite is
lessee’s acknowledgement that the equipment was, when delivered in good,
safe, operable and serviceable condition and fit for its intended use. At
no time shall the equipment be subjected to improper, careless or
needlessly rough use or to any usage in violation of any statute,
ordinance, rule, regulation or order of any governmental or other entity
having jurisdiction over the place of use. Lessee agrees: (a) to use the
equipment in accordance with the manufacturer’s instructions, and within
the rated load capacity for such or similar equipment, (b) that
counterweight in excess of the manufacturer’s specifications shall not be
used; (c) that the equipment shall be protected from all hazards. Lessee
agrees not to alter or modify the equipment nor to remove or otherwise
alter any numbering, lettering or insignia placed upon the equipment
without first obtaining lessor’s written consent. Lessee shall inspect the
equipment on a daily basis, maintain accurate inspection and lubrication
records, repair records for the equipment and records of actual hours and
dates of operation. Lessee shall keep lessor informed of all deficiencies
in the equipment and lessor shall be given access to the equipment at all
reasonable times for the purpose of inspection. Lessee agrees to employ
only competent, experienced and reliable personnel to operate and maintain
the equipment. It is expressly agreed by and between the parties hereto
that the equipment and all persons operating, repairing, or maintaining
the equipment are under the exclusive jurisdiction, supervision and
control of lessee under this lease. It shall be the duty of lessee to give
specific instructions and directions to all persons operating, repairing,
and maintaining the leased equipment. Lessee specifically agrees that the
lessor has absolutely no control over any person operating or assisting in
operating, repairing, or maintaining the leased equipment. Lessor may
provide an operator with the equipment. Lessee may reject this operator;
however, if operator is not rejected, the operator is under the lessee’s
exclusive direction and control and is lessee’s agent, servant, and
employee. The lease payments made by the lessee shall include the
operator’s wages, even though the operator’s wages may be disbursed by the
lessor. This lease is upon the agreement of the parties that the lessor has
no right to replace or substitute personnel except at the direction of and
with the approval of lessee and that the lessee shall have the right to
control, including the right of terminations, and shall be deemed to have
exercised that right as to all details or operation of the leased
equipment and personnel the lessee selects to operate the leased
equipment. Lessee further agrees that the Standard Crane and Derrick
Signals in accordance with all American National Standards Institute and
American Standard B30.5-1968 (And as Amended) shall be used to direct the
equipment at all times when applicable. If the equipment is damaged,
involved in an accident, or made inoperable in any way, the lessee shall
notify lessor in writing within 48 hours of its occurrence, specifying the
extent and nature of the accident or damage. Repairs to structural or load
carrying portions of the equipment, including but not limited to boom
sections, are not to be undertaken without first obtaining lessor’s
written consent. The cost of any repair necessary to restore the equipment
to said condition shall be paid by lessee. Any time beyond the minimum
term required to make such repairs shall extend the term of this agreement
to include such reasonable additional repair time as is necessary under
the circumstances. Time is of the essence of this lease and all its
provisions. Lessor’s failure to require strict performance by lessee of
any of the lease provisions, or lessor’s acceptance of late or partial
performance hereunder, shall not constitute a waiver of any prior defaults
of lessee, nor of lessor’s right under this agreement. This lease shall be
binding upon and shall inure to the benefit of the parties and their
successors, administrators, executors, trustees and assigns. This agreement
shall be interpreted according to the laws of the lessor’s location stated
on the front page. This agreement shall be interpreted fairly and
reasonably and neither more strongly for nor against either party. THIS
CONTRACT SHALL BE IN EFFECT FOR A DURATION OF ONE YEAR FOR THIS OR SIMILAR
EQUIPMENT OR UNLESS EXPRESSLY TERMINATED IN WRITING BY LESSOR. In the
event that the lessee loans, sublets or allows a third party to use the
crane and the services of the operator, lessee agrees to have said third party
sign and agree to the terms of this contract.
- CONDITIONS—GROUND/POWERLINES/RIGGING—The
lessee hereby agrees that it will assume all responsibility for the ground
or soil conditions in the area where the crane is to be stored, parked or
operated. The lessee shall perform or have performed all necessary
inspections or testing to determine the nature of the ground or soil and
its ability to support the crane while in operation or otherwise. If the
ground or soil condition is such that it cannot support the crane, the
lessee shall take all necessary measures to insure that these conditions
are remedied prior to the crane being placed on that ground or soil. These
measures include, but are not limited to, the provision or proper shoring
or cribbing or other measures. Lessee assumes all responsibility to
protect the equipment and persons in or around the equipment from the
danger of power lines. Lessee shall not expose the equipment or any
persons in or around such equipment to the danger of energized power
lines. All power lines in the work area shall be identified prior to the
work beginning. All power lines are to be de-energized prior to the
equipment being operated in or around such power lines. Lessee shall
contact the local electric utility or other such authorized entity to
arrange to have the power lines de-energized prior to beginning work. Even
if power lines are de-energized, lessee shall keep the equipment clear of
such power lines at the distances required by OSHA, ANSI and any other
safety regulations or standards. If it is not possible to de-energize
power lines, then the lessee shall be responsible or the insulating of any
power lines, the grounding of all equipment and will be required to use
rigging or other equipment designed to prevent electrocution. Further, the
lessee shall keep the equipment clear of such energized power lines at the
distances required by OSHA, ANSI and any other safety regulations or
standards. Lessee is required to provide any and all rigging to be used
with the equipment. This includes all chokers, slings, straps, chains,
hooks, spreaders, ropes, or wire. Lessee assumes responsibility for any
defects in any rigging, whether the property of lessee or otherwise.
Lessee assumes the responsibility for damage to any load on hook due to a
failure of the rigging. Lessee assumes the responsibility for the method
of rigging and agrees that all persons involved in the rigging are under
lessee’s direct supervision and control.
- NO OTHER
AGREEMENT—Except as otherwise mutually agreed in writing, this document is
the complete agreement of the parties and supersedes all other agreement
or understandings written or oral.
- EXCUSE OF
PERFORMANCE—Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefore, governmental action, domestic or
foreign, riot, civil commotion, fire and other casualty, and all other
causes beyond the reasonable control of lessor shall excuse lessors
performance for a period equal to such prevention, delay or stoppage.
Lessee hereby waives all claims against lessor for any delay or loss of
materials by reason of any shutdown, or failure of the equipment for any
reason.
- TERMS OF PAYMENT—Full
payment for all charges is due within NET 30 days. A service charge of 1 ½
% per month (18% annually) will be charged on all past due balances.
- LIFTING DEVICES—Lessee
assumes all liability for the adequacy of design or the strength of any
lifting lug or device embedded in or attached to any object.
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