Waiver

TERMS AND CONDITIONS OF CONTRACT

 

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.