GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“General Terms”) together with the terms, conditions, rates and other information in the Rate Sheet(s) (the “Rate Sheet” which is incorporated herein by reference (collectively, the General Terms together with the Rate Sheet(s), the “Agreement”) set forth the terms and conditions of the engagement by and between Middle-GA Concrete Pumping LLC, a Georgia limited liability company (“Company” or “Lessor”) and “Customer” and are effective as of the date Customer executes the Rate Sheet (the “Effective Date”). “Customer” means the customer, lessee, or the person or entity identified as such on the Rate Sheet.
1. EQUIPMENT AND SERVICES. Company shall provide to Customer the services (the “Services”) and/or the equipment, supplies and materials (the “Equipment”) identified in one or more Rate Sheet(s) to be issued by Company and accepted by Customer (each, a “Rate Sheet”). If there is any inconsistency between the provisions of this Agreement and a Rate Sheet, the provisions of the Rate Sheet shall control as to the Services and the Equipment provided thereunder. The Services will be provided at and/or the Equipment will be brought by the Company to the project location identified on the Rate Sheet or identified via other mutual communications between the parties (the “Site”) and will be removed by the Company from the Site at the end of the rental term as described in the Rate Sheet. The Rate Sheet will generally specify the specific Services and Equipment to be provided, the Fees, rental term, rates, project location, and other information and requirements for the specific Project listed on the Rate Sheet (each such project listed on a Rate Sheet, a “Project”). Except as provided otherwise herein, the terms and conditions listed in each applicable Rate Sheet apply only to that specific Project identified in the Rate Sheet. Additional Rate Sheets must be signed by an authorized representative of the Company.
2. Fees, Charges, Rates and Expenses. In consideration of the Services performed by Company and/or the rental of Equipment by the Customer under this Agreement, Customer shall pay the fees, rates, amounts and charges set out in the applicable Rate Sheet (the “Fees”). Fees, including but not limited to, the specific hourly and yardage rates for a Project are valid only for that specific Project and are subject to change for each new project under this Agreement, in the Company’s sole discretion. In the absence of a new Rate Sheet for a Project, the rates and Fees in the then most recent Rate Sheet for the then most recent Project for the Customer under this Agreement will control. Except as explicitly provided herein, rental amounts and Fees are not subject to any deductions or back charges on account of any non-working time of the Equipment, operator/or and crew. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. Except as explicitly provided herein, Customer’s obligation to pay all Fees and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
3. INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Customer agrees to indemnify, defend and hold harmless Company, its members, managers, officers, employees, and agents, and its successors and assigns (collectively, “Indemnified Parties”) (i) from all claims, including but not limited to any third party claims, for death or injury to persons and for loss, damage, or injury to real or tangible property and personal property, including but not limited to the Equipment rented or leased from Indemnified Parties, arising out of or resulting from the concrete hose including but not limited to, any concrete hose whipping; and (ii) from and against any and all losses, injury, bodily injury, death, damages, liabilities, claims, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatsoever kind and nature, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification under Agreement and the cost of pursuing any insurance providers (collectively, “Damages”), relating to, arising out of, or in connection with the transactions contemplated by this Agreement, including without limitation: (a) the selection, design, manufacture, delivery, purchase, rental, lease, acceptance, or rejection of any Equipment or the ownership of any Equipment; (b) the rental, lease, possession, installation, maintenance, use, condition, repair, return, disposition, operation, storage, or transportation of any Equipment (including, without limitation, latent and other defects, whether or not discoverable by Company or Customer); (c) any inaccuracy in or breach of any of the representations of Customer contained in this Agreement and any other applicable agreements; (d) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Customer pursuant to this Agreement; (e) any claim, including but not limited to any third party claim, alleging any negligent or more culpable act or omission of Customer or its officers, workers, agents, employees, contractors, and representatives (including any reckless or willful misconduct) in connection with the Services and/or the use or direction of the Equipment under this Agreement; (f) related to the rental or lease of the Equipment by Customer or the provision of the Services by Company; and/or ((g) any failure by Customer or its officers, workers, agents, employees, contractors, and representatives to comply with any applicable federal, state, or local laws, regulations, permits, or codes in the performance of its obligations under this Agreement.
(b) Customer’s duty to indemnify and defend Indemnified Parties includes all costs and expenses related to the covered claims, including all court and/or arbitration costs, filing fees, attorney’s fees, and costs of settlement. Customer also agrees to indemnify, defend and hold harmless Indemnified Parties from claims arising or resulting from the partial or contributory negligence or fault of Indemnified Parties, whether Indemnified Parties’ negligence or fault is direct, indirect, or derivative in nature. However, in accordance with O.C.G.A. §13-8-2, Customer is not required to indemnify, hold harmless, insure, or defend Indemnified Parties from or against Damages or other liability caused by or resulting from Indemnified Parties’ sole negligence. Customer’s indemnification and/or defense of Indemnified Parties applies regardless of the amount or type of damage, compensation, or benefits payable by or for the Customer under workers’ compensation laws, disability benefits laws, or other employee benefits laws. Customer’s indemnification obligations will not be limited by the amount of its liability insurance, and the purchase of such insurance for Indemnified Parties will not reduce or relieve Customer’s 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. Customer shall bear the cost of any investigation or adjustment (including, but not limited to, attorney’s 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 Indemnified Parties, Indemnified Parties’ insurance carriers, or Indemnified Parties’ third party adjusters into any accident or occurrence involving the Equipment or provision of Services, whether or not such accident involves personal injury, death, or damage to the Equipment or other property.
4. INSURANCE.
(a) Customer shall obtain and carry at their own expense the following minimum insurance coverage beginning on the earlier of (i) the Effective Date of this Agreement, (ii) the date the Equipment is shipped or transported to the job Site or (ii) the Company’s provision of the Services, and Company shall maintain such coverage in full force and effect for the entire rental term or term of the Agreement, whichever is longer:
(i) worker’s compensation insurance as required by law and employer’s liability insurance covering the legal liability of Company and Customer under the applicable workers’ compensation or occupational disease laws for claims for personal injuries and death resulting to Company’s and Customer’s workers, with limits of at least the statutory minimum or $1,000,000, whichever is greater;
(ii) commercial general liability insurance covering bodily injury and property damage with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate;
(iii) noncontributory excess/umbrella insurance in the amount of $5,000,000; and
(iv) inland marine/all-risk physical damage insurance 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, loss, damage, flood, explosion, overturn, accident, and acts of God occurring during the term of the Agreement.
(a) Deductibles, if any, must be approved in advance by Company. Customer’s primary and excess/umbrella policies must be endorsed so that they are primary and noncontributory to all of Company’s insurance policies. All of Customer’s policies required by this section shall be written and provided by financially sound and reputable insurance companies acceptable to the Company. Company and its affiliates are to be included as additional insureds on all liability insurance policies, including the excess/umbrella policies (ISO Form CG 20 1O 1 O 01 and ISO CG 20 37 10 01 must be used) as follows: “Middle-GA Concrete Pumping LLC and its subsidiaries and affiliates and its directors, managers, officers, representatives, employees, and assigns.” Customer shall name Company as a Loss Payee on all insurance policies, and Customer shall provide all insurance certificates to Company upon request. All policies shall be endorsed to require the insurer to give 30 days’ advance notice to all insureds prior to cancellation. All of Company’s policies, and the policies of anyone Company is required to insure are excess coverage over all of Customer’s policies. In the event of a loss, proceeds of property damage insurance on the Equipment shall be made payable to the Company. Notwithstanding any other language in this section, pursuant to O.C.G.A. §13-8-2, Customer shall not be required to insure Company or its officers, agents, or employees against liability or claims for damages, losses, or expenses, including attorneys’ fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of Company or its officers. agents, or employees. Customer’s agreements to indemnify, defend and hold harmless Company from any liability, damage and loss are in addition to and not an alternative to, these insurance provisions; the purchase of any of the policies above shall not operate to waive any of Customer’s indemnification obligations.
(b) If Company performs under this Agreement despite Customer’s failure to procure the required insurance coverage, Company’s performance will not operate or be construed as a waiver of Company’s right to maintain a breach of contract action against Customer. Customer hereby waives 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 employer benefit programs, commercial general liability policies, or similar policies) which may accrue it or its insurers. This waiver binds Customer’s insurers of all levels, and Customer agrees to put its insurers on notice of this waiver and to have any necessary endorsements added to the insurance policies applicable to this Agreement.
5. Customer REPRESENTATIONS AND COVENANTS. Customer represents and warrants for the benefit of Company that the statements contained in this Section 5 are true and correct as of the Effective Date. Customer has full corporate power and authority to enter into this Agreement and any and all Rate Sheet(s), carry out its obligations hereunder, and consummate the transactions contemplated hereby. This Agreement and any and all Rate Sheet(s) have been duly executed and delivered by Customer, and constitute a legal, valid, and binding obligation of Customer enforceable against Customer in accordance with its terms. The execution, delivery, and performance by Customer of this Agreement and any and all Rate Sheet(s) will not require the consent of any party, result in any lien on any piece of Equipment, or conflict with the organizational documents of Customer, any provision of applicable law, or any instrument by which Customer is bound. Customer shall maintain in full force and effect all permits required to continue conducting its business, to carry out the transactions contemplated by this agreement, including but not limited to the provision of the Services, and to lease, rent and use each piece of Equipment in the manner contemplated under this Agreement. Customer shall keep the Equipment free and clear of all liens. Customer shall effect the removal of any such lien immediately upon written notice thereof from Company or otherwise becoming aware of the existence of the lien. Customer shall comply with all applicable law.
6. OPERATION, USE AND RETURN OF EQUIPMENT.
(a) Customer acknowledges and agrees that the Equipment is of the size, design, capacity, and condition selected by Customer. Company has not made, and does not make, any representation, warranty, or covenant, express or implied, with respect to the condition, quality, durability, or suitability of the Equipment for any particular purpose. Customer acknowledges and agrees that the Equipment and Services are suitable for Customer’s needs. Customer agrees, represents and warrants that Customer is familiar with the Services to be provided by Company and proper operation and use of each item of Equipment, and that Customer has selected the Equipment and Services based on its requirements.
(b) Customer will not use or allow anyone to use or direct the operation of the Equipment or provide the Services (i) for an illegal purpose or in an illegal manner; (ii) without a license, if required under any applicable law; or (iii) who is not qualified to use and/or direct the operation of the Equipment, and Customer shall not use, direct, or permit the operation, direction or use of any Equipment or provision of Services in an unsafe or improper manner. Customer further agrees, represents and warrants that all of Customer’s employees and agents who are directing or using: (i) the Equipment or (ii) the Company’s employees and agents, including but not limited to the Company’s operator and crew, will be under the exclusive supervision and control of Customer at all times during all terms under this Agreement. Customer is responsible to give, and will give, specific instructions and directions to all persons providing Services and/or operating and using the Equipment, including Company’s employees and agents, regarding where and when to pump and place the concrete and where to wash out and prime out the Equipment and other materials on Site. Company is not responsible for any damages or losses resulting from the placement, pumping, wash up or prime out of concrete and/or Equipment where such placement, pumping, wash out or prime out or the location of such was directed by Customer or Customer’s employees and/or agents. Customer agrees to provide or otherwise select competent and experienced personnel, including but not limited to any hosemen and finishers, if applicable, to direct the operation, use and placement of the Equipment and provision of the Services. Customer further agrees that the standard of care and responsibilities will be in accordance with all American National Standards Institute (ANSI) specifications, and that ASME B30.27-2009 (as amended) shall be used when operating, usings and/or directing the Equipment and/or directing the Services. Customer specifically agrees that Company has no control over any of Customer’s employees or agents, or other persons, who are using, moving, directing or controlling the concrete hose or other similar devices or pieces of Equipment or the Services, except for Company’s own employees and representatives. If Customer directs Company’s employees and/or agents, including but not limited to Company’s operator and crew, then such Company personnel will work under Customer’s exclusive direction and Company shall have no liability for such personnel and/or their actions, errors or omissions where directed by Customer, except where Company’s personnel were solely negligent in their respective acts or omissions. Customer shall immediately notify Company of any accident and/or claim involving personal injury and/or property damage arising from the use, direction and/or operation of the Equipment or provision of the Services. Company shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason. Company shall have immediate access to, and right of retrieval and repair of the Equipment. Customer shall not remove Equipment or components thereof from the site without express written authorization from Company.
(c) If any Equipment related to a Project is stored on Site during, before, or after a Project, Customer represents and warrants that Customer will protect such Equipment from damage, theft or other loss and that such Equipment will be ready and able for use by Company when requested and as needed and: (i) in as good condition as when delivered to Customer and complete with all parts, and (ii) in compliance with applicable Law. If such Equipment is not available for the Company’s use when requested or as needed in the required condition, and such condition and/or availability is caused directly or indirectly by the misuse, abuse, neglect, or accidental damage by Customer or its employees and/or agents, Customer shall pay all costs to repair and restore the Equipment to the same condition as when delivered to Customer’s Site. If the time it takes to make such repairs or restore the Equipment exceeds the rental term, then the rental term will be extended for such reasonable time as is necessary under the circumstances to repair or restore the Equipment and the Customer will be responsible to pay Holdover Rent as provided in Section 6(d) below. Company has no obligation to repair, replace, and/or cancel the Agreement, or refund any fees or charges for Equipment rendered inoperable by misuse, abuse, neglect, or accidental damage caused by Customer or its employees and agents. If the Equipment is (i) lost or stolen, or (ii) damaged beyond repair, or otherwise permanently rendered unfit for use by the misuse, abuse, neglect, or accidental damage caused by Customer or its employees and agents, Customer shall pay Company for the full replacement value of the Equipment, plus any applicable taxes, together with the full rental rate as specified in the applicable Rate Sheet until such Equipment is replaced.
(d) Holdover. If by the expiration or earlier termination of the applicable rental term, Customer is unable to provide the Equipment to Company for the reasons stated in Section 6(c) above in the condition required by and otherwise in accordance with this Agreement, Customer shall continue to comply with all the terms and conditions of this Agreement and the applicable Rate Sheet with respect to such Equipment and/or Services, and will be obligated to pay the daily fees and rates for each day from the expiration or earlier termination of the rental term until the later of the date on which Customer returns such Equipment to Company or the repair or restoration of the Equipment is complete and approved by Company (“Holdover Rent”). Nothing contained in this Section, including Customer’s payment of Holdover Rent, shall (a) constitute a waiver of Customer’s failure to perform any obligation under this Agreement (b) give Customer the right to retain possession of any Equipment after the expiration or earlier termination of the rental term with respect to such Equipment.
7. Risk of Loss. From the time of delivery of the Equipment to Customer’s Site until the Company has removed the Equipment completely from the Customer’s Site, as to such Equipment, Customer shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to such Equipment or its use, however caused or occasioned (“Loss”), except where such Loss is caused by Company’s sole negligence. Customer shall notify Company in writing immediately upon learning of any such Loss.
8. CUSTOMER’S JOB SITE RESPONSIBILITIES. Customer agrees to, and warrants that it will, provide a secure and safe work environment for all parties, including but not limited to Company and its employees, agents and subcontractors, and agrees, represents and warrants that any provision of the Services and/or use or direction of the Equipment complies with applicable laws. Customer shall be responsible for and shall provide a pumpable concrete mix, in forms of gradation of aggregate and batching of concrete, for the pumping Equipment and/or provision of Services. In addition, Customer shall be responsible for and shall: (i) provide reasonable scheduling and timing of concrete delivery, (ii) provide the labor force for set up of the system, (iii) handle the pumping system while placing grout for priming system, (iv) provide a hoseman to direct the pump hose and placement of the concrete, (v) provide for any finishing of or finishers for the concrete, (vi) provide sufficient water and a suitable place for cleanup of the Equipment, system and pump on Site, a suitable roadway, and reasonable accessibility to set up the Equipment or provide the Services, (vi) ensure that no Customer property or equipment are stored under or directly adjacent to the Equipment and/or materials when in use, and (vii) designate and provide an authorized representative to (a) serve as the Customer’s primary contact with the Company at the Site; (b) review the scope of Services or Equipment rental for the day before such Services and/or Equipment are provided or used, and (c) to timely review the Company’s daily invoice. Customer bears and assumes all responsibility for the removal of the Equipment from the job site if tow trucks, wreckers’ trucks, or other means are required due to weather, road, or job site conditions. Customer shall pay all on-site tow truck and wrecker charges. Customer is responsible, at its own expense, for hoisting lines above ground level and labor to set-up and clean up the system.
9. DELAYS, STOPPAGES, AND BACK CHARGES.
(a) Should the Equipment be involved in an accident, become unsafe, malfunction, or require repair, Customer shall immediately cease using and directing the Equipment and immediately notify Company.
(b) Customer may not charge back any amounts to Company for delays or stoppages (A) which result from: (i) Customer’s breach of any of its representations, responsibilities or obligations under this Agreement; (ii) unpumpable mixes; (iii) mechanical breakdown or failure of pumping Equipment that is caused by difficult or unpumpable mixes; (iv) mechanical breakdown or failure of the Equipment where Customer has not ordered a back-up pump; (v) late arrival of fewer than two hours for a scheduled afternoon pour; (vi) damage to asphalt; (vii) strikes, lockouts, acts of God, adverse weather, or other causes beyond Company’s reasonable control; (viii) damage to property beyond curb line; or (ix) loss of concrete resulting from addition of water or (B) for the first one hour of any other mechanical breakdown or failure of the pumping Equipment.
(c) Back charges for concrete finisher overtime labor costs, if otherwise allowable, may not exceed the actual time of the delay or stoppage of the pumping Equipment less the first one hour of such breakdown or failure, as provided above.
(d) Back charges for loss of concrete, if otherwise allowable, may accrue only for that amount of concrete lost which exceeds five percent of the total volume of concrete pumped in that one day period.
(e) In no event may back charges exceed the total Fee charged by Company for a one-day period.
10. NOTICE AND WAIVER. Notwithstanding the foregoing, back charges and claims for damages resulting from delay due to the fault of Company will be deemed waived by Customer unless Customer makes a claim in writing to Company within 48 hours from the beginning of the delay.
11. TERMS OF PAYMENT. The Company may issue an invoice to the Customer at the end of each day itemizing the charges for the day. If the Company provides a daily invoice, Customer must provide an authorized representative to review the invoice that day and provide written approval of the information and charges provided therein. If no authorized Customer representative is provided or timely available to approve the daily invoice then any itemized charges for the day will be considered automatically approved. For any charges that are not automatically approved, Customer must notify Company immediately in writing regarding any disputed amounts due on such invoice. Amounts not disputed in writing within three (3) business days will be considered approved. Customer shall pay Company’s invoices within 15 calendar days of receipt. All amounts not paid when due shall bear interest at the rate of 1.5% per month or the maximum legal rate permitted by law, whichever is less, from the due date until paid. If Company is forced to collect unpaid amounts from Customer, Customer shall pay all costs of collection, including reasonable attorney’s fees and lien charges. Company, at its option, may require Customer to make payments in advance.
12. SITE CONDITIONS. Customer assumes all responsibility for the ground and soil conditions in the areas where the Equipment is stored, parked, or operated during the rental term and/or where the Services are provided. Customer shall, at its expense, prepare a suitable site for the delivery and use of the Equipment and provision of the Services. Customer shall, at its own expense, perform or coordinate the performance of all necessary inspections and testing to determine the nature and condition of the ground or soil and its ability to support the Equipment and/or the provision of Services while in operation or otherwise. If the ground or soil conditions cannot support the Equipment, and/ or provision of Services, Customer shall take all necessary measures to ensure that these conditions are remedied prior to the Equipment being placed on that ground or soil and prior to the provision of any Services. Such measures include, but are not limited to, the provision of proper shoring, cribbing, or other measures. Customer shall protect and may not expose (i) any persons providing the Services and/or (ii) the Equipment and persons in or around or using or directing the Equipment to energized power lines. All power lines in the work area shall be identified and de energized prior to the provision of Servies and prior to the Equipment being operated, used or directed in or around such power lines. Customer 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, Customer shall keep the all persons providing the Services and the Equipment clear of such power lines and maintain the distances required by OSHA, ANSI, and any other applicable safety regulations or standards.
13. EXCLUSION OF WARRANTIES.
(a) COMPANY MAKES NO WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INTERFERENCE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
14. Limitation of Liability.
(a) To the fullest extent permitted by law, COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) To the fullest extent permitted by law, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THIS AGREEMENT.
(c) To the fullest extent permitted by law, Company will not be liable to Customer for any liability, loss, or damage caused or alleged to be caused, directly or indirectly, by the Equipment or PROVISION OF THE SERVICES.
(d) The limitations set forth in this Section 14 shall not apply to damages or liabilities arising from the sole negligence or the gross negligence or willful or wanton conduct of the Company in performing its obligations under this Agreement.
15. CANCELLATIONS, Termination and Survival.
(a) This Agreement shall commence as of the Effective Date and shall continue thereafter in full force and effect, unless sooner terminated by Company pursuant to this Section 15, until the date when both (a) all Equipment is returned to Company in the condition required as set forth herein and under all applicable Rate Sheets and acceptance of such returned Equipment by Company, or the Equipment is repaired or replaced and returned to Company, as applicable, and all Services under all Rate Sheets have been performed; and (b) Customer completes payment in full of all obligations hereunder and under all Rate Sheets.
(b) Customer shall provide at least 24 hours’ advance notice to Company of any schedule changes, including delays, cancellations and terminations. In addition to any other remedy available herein, if Customer does not provide the requisite advance notice but Customer delays, cancels or terminates the Project before any of the Equipment or Company’s employees and/or agents arrive at the Site, Customer will be liable for and shall pay to Company at the then current rate: a fee equal to four hours of Equipment and crew lease/rental at the applicable rate(s). If Customer does not provide the requisite advance notice but delays, cancels or terminates the Project after any Equipment, materials or crew is delivered to or arrives at the job Site, then in addition to any other remedy available herein, Customer will be liable for and shall pay to Company at the current rate a fee equal to four hours of Equipment and crew lease/rental at the applicable rate(s) plus travel time to the Site.
(c) Company may terminate this Agreement, any Rate Sheet, Service, and/or any rental term at any time for any or no reason and take possession of, or render unusable, any Equipment wherever it may be located, without demand or notice, without any court order or other process of law, and without liability to Customer for any damages occasioned by such action.
(d) The rights and obligations of the parties set forth in this Section 15 and in Sections 1, 2, 3, 4, 5, 6, 7, 8, 10, 13, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, and 27 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination, cancellation or expiration of this Agreement.
16. DEFAULT. In addition to any other remedy available to it under law or equity and/or under this Agreement, if Customer is in Default under this Agreement or breaches this Agreement, Company may, in its sole discretion, do any one or more of the following: (i) terminate the rental term, the Rate Sheet, and/or this Agreement; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefore; (iii) cause Company’s employees or agents to enter upon Customer’s property and take reasonable action to retake and repossess the Equipment, and Customer hereby agrees to pay all costs and expenses incurred by Company in retaking and repossessing the Equipment; (iv) make any payment or perform any obligation on behalf of Customer or take any action that Company in Company’s sole discretion deems necessary to maintain and preserve any or all Equipment and Company’s interests therein, and Company’s payment or performance of such obligation, or taking of such action shall not be a waiver by Company of any default or a release of Customer by Company, and Customer shall pay immediately on demand to Company all sums so paid by Company and any expenses (including legal fees and costs) incurred by Company in connection with Company’s payment, performance of such obligation, or taking of such action; and/or (v) exercise any other right or remedy available to Company at law, in equity, by statute, in this or in any other agreement between the parties, or otherwise. Each of the following events is a “Default” under this Agreement: (a) Customer fails to pay any Fees or any other amount under this Agreement when due; (b) Customer breaches this Agreement or fails to perform or observe its obligations under this Agreement or defaults in the observance or performance of any other term, covenant, or condition of this Agreement; (c) Customer’s interest or any portion thereof in this Agreement devolves on or passes to any other party, whether by operation of law or otherwise; or (d) any of Customer’s representations are untrue.
17. Title/ No purchase option/ No liens. This Agreement is not a contract of sale, and title to the Equipment and any attachments, accessions, replacement parts, repairs or additions thereto, shall always remain with Company. Unless covered by a specific supplemental agreement signed by Company, Customer has no option or right to purchase the Equipment. Company shall keep the Equipment free and clear of all mechanics and other liens and encumbrances and other claims.
18. NOTICE. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other party at its address set forth in the Rate Sheet (or to such other address as the receiving party may designate from time to time in accordance with this Section 18). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email of a PDF document (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 18.
19. AUTHORIZED SIGNATURE. The person(s) executing this Agreement represents and warrants that they have the legal and institutional authority to do so on behalf of the person or legal entity for which they are signing. The parties mutually acknowledge, represent, and warrant that they have been fully advised by their respective legal counsel of their rights and responsibilities under this Agreement or that they have had ample opportunity to consult with counsel of their choosing; that they read, know, and understand completely the contents of this Agreement; and that they have voluntarily executed the Agreement.
20. SEVERABILITY. If any provision of this Agreement is construed or interpreted to be illegal or invalid by a court of competent jurisdiction, such provision shall be stricken and deleted from this Agreement to the same extent and effect as if it were never included with all other provisions continuing in full force and effect.
21. REMEDIES. All rights and remedies of Company provided in this Agreement are cumulative and not exclusive, and the exercise by Company of any right or remedy does not preclude the exercise by Company of any other rights or remedies that may now or subsequently be available to Company at law, in equity, by statute, in any other agreement between the parties, or otherwise. Customer acknowledges that a breach or threatened breach by Customer of any of its obligations under this Agreement would give rise to irreparable harm to Company for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Customer of any such obligations, Company will, in addition to any and all other rights and remedies that may be available to Company in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
22. Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company, which may be withheld in Company’s sole discretion. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
23. Force Majeure. Company shall not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the Company’s reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Company.
24. GOVERNING LAW. This Agreement and all claims or causes of action based on, arising out of, or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to the chosen jurisdiction’s choice-of-law and conflict-of-law principles.
25. ENTIRE AGREEMENT; MODIFICATION. This Agreement together with the Rate Sheet(s) and all related exhibits and schedules contain the entire agreement of the parties with respect to the Equipment and Services. All prior and contemporaneous representations, promises, and inducements are null and void. No modification of this Agreement will be effective or binding unless and until such modification is memorialized in a writing signed by the parties to be bound. Customer and Company acknowledge and agree that the terms and conditions set forth in any Customer purchase order or similar document shall be of no force and effect with respect to the Equipment and Services and the transactions contemplated by this Agreement.
26. MISCELLANEOUS. This Agreement is binding on and inure to the benefit of the parties hereto and thereto and their respective permitted successors and permitted assigns. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Nothing herein creates a joint venture or partnership between the parties to this Agreement or an employee/employer relationship. The relationship between the parties is that of independent contractors. Customer has no express or implied right or authority to assume or create any obligations on behalf of or in the name of Company or to bind Company to any contract, agreement, or undertaking with any third party. Except as specifically provided otherwise in this Agreement, no waiver by Company under this Agreement is effective unless it is in writing. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Except as provided otherwise in this Section 26, this Agreement benefits solely the parties hereto and thereto and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereof or thereof. The parties hereby designate the Indemnified Parties other than Company as third-party beneficiaries of Section 3, having the right to enforce Section 3.
27. TIME OF THE ESSENCE. Time is of the essence with respect to all of Customer’s obligations to Company.