TERMS AND CONDITIONS OF CONTRACT
1. The Customer acknowledges that Nichols will make every effort to provide the service(s) that Customer may request on the date and time requested but Customer acknowledges that Nichols cannot guarantee that it will always have equipment and/or operators available for said requested services unless scheduled in advance. Customer acknowledges that each requested service shall be considered to be a separate contract for service. The terms of this Credit Application shall become a part of each separate invoice/job ticket for requested services.
1. INDEMNIFICATION – Customer acknowledges that the services and/or equipment provided by Nichols to Customer is/are generally inherently dangerous and that the Customer’s environment (job site) may increase the risk of Nichols operations. Customer agrees that it will provide all safety features and requirements as required by OSHA for said job site and employees. To the fullest extent permitted by law, Customer agrees to indemnify and save Nichols, its employees and agents harmless from all claims for death or injury to persons, including Nichols’s employees from all loss, damage or injury to property, including the Equipment, arising directly, indirectly, or in any manner out of the Customer’s work. Customer’s duty to indemnify hereunder shall include all costs or expenses arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorneys’ fees and cost of settlement. Customer shall be required to indemnify Nichols for Nichols’s own negligence or fault, whether the negligence or fault of the Nichols be direct, indirect or derivative in nature. However, 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 Customer under workers’ compensation acts, disability benefits acts, or other employee benefits acts. The Customer’s obligations hereunder shall further not be limited by the amount of its liability insurance, and the providing of such insurance for Nichols shall not operate to waive any of the above obligations. This provision is separate and distinct from any other provision or paragraph in the contract, including any provision or paragraph concerning partial indemnification or the providing of insurance. If any word, phrase, or sentence of this 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 Customer’s additional obligations hereunder, Customer 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 Nichols, Nichols’s insurance carriers or Nichols’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.
2. INSURANCE – The Customer agrees that it will have enforce the following insurance coverages prior to services provided or prior to the Equipment’s arrival on the job site. The Customer shall provide the following coverages for Nichols: a.) workers’ 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 coverages with minimum limits of $1,000,000 per occurrence and $2,000,000, in the aggregate; c.) excess/umbrella non-contributory insurance in the amount of at least $3,000,000 and Customer’s primary and excess/umbrella policies must be endorsed so that they are primary and non-contributory to all of Nichols’s insurance policies; d.) 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 is 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; e.) all policies are to be written by insurance companies acceptable to the Nichols; f.) the Nichols and all affiliated partnerships, joint ventures, corporations, and anyone else who Nichols is required to name as an additional insured, are to be included as additional insured on all liability insurance policies, including excess/umbrella policies. ISO Forms CG 20 10 10 01, ISO CG 20 37 10 01, CG 20 28 07 04, and CG 20 34 03 97 must be used for the purpose of so including Nichols and the foregoing affiliated parties as additional insureds. Customer shall name Nichols as a Loss Payee on all insurance policies. Customer shall provide all insurance certificates to Nichols when requested; g.) all policies shall be endorsed to require the insurer to give thirty (30) days advance notice to all insureds prior to cancellation; h.) all of Nichols’s policies, and the policies of anyone Nichols is required to insure, are excess over all of the Customer’s policies. In the event of loss, proceeds of property damage on the Equipment shall be made payable to Nichols. Customer’s agreements to indemnify and hold Nichols harmless from any liability, damage and loss are in addition to, and not an alternative to, these insurance provisions and the providing of any of the above coverages shall not operate to waive any of the above indemnity provisions. To the extent that the Customer may perform under this contract without obtaining the above coverages, such an occurrence shall not operate, in any way, as a waiver of Nichols’s right to maintain any breach of contract action against Customer. Customer hereby agrees to waive any and all rights of subrogation and any and all lien rights (including those arising from workers’ compensation/employer’s liability policies or other employee benefit programs, commercial general liability policies, or similar policies) which may accrue to its insurers. This shall include, but not be limited to, rights of subrogation and lien rights. The Customer 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.
3. RELEASE – Customer hereby releases Nichols from and waives any and all claims and rights against Nichols arising out of or related in any way to any damage to property including any materials supplied (including concrete mix) or other products or to be supplied by Nichols and any Customer for incorporation into the real estate or property at the project. Customer understands and agrees that Nichols is not supplying any mix that will be incorporated into the real estate or property at the Project. This release and waiver includes any environmental contamination of such property, arising out of or occurring in connection with the supplying of the equipment in this agreement. Nichols shall not be liable to Customer for loss of anticipated profits or for any special, indirect, punitive, or consequential damages resulting from or arising out of, or occurring in connection with this Agreement, any Service Order, and/or performance under this Agreement, however same may be caused.
4. HOSE WHIPPING and/or PUMP EQUIPMENT OPERATIONS – The Customer shall indemnify and hold harmless the Nichols and all its agents and employees from and against all claims, damages, losses, expenses, including attorneys’ fees, arising out of or resulting from the actions caused by concrete hose whipping and/or pump truck operations. Customer understands and acknowledges that pumping of concrete can result in hose whipping and pump surges which may be caused by concrete mixes or materials provided by Customer, and Customer fully assumes this risk.
5. OPERATION OF 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 Customer under this agreement. It shall be the duty of Customer to give specific instructions and directions to all persons operating, repairing, and maintaining the Equipment. Customer agrees to provide or otherwise select competent and experienced personnel to direct the operation of the Equipment, and further agrees that the standard of care and responsibilities will be in accordance with all National Standards and American National Standards Institute (ANSI) specifications and that ASME B30.27-2014 (and as amended) shall be used when operating the Equipment. Customer warrants that it will operate equipment in accordance with the manufacturer’s instructions. Customer specifically agrees that the Nichols has absolutely no control over any person operating or assisting in operating, repairing, or maintaining the Equipment. Nichols may provide an operator with the Equipment. Customer may reject this operator, however, if operator is not rejected, the operator is under the Customer’s exclusive direction and control and is Customer’s agent, servant, and employee. The cost of any repair necessary to restore the Equipment to its original condition shall be paid by Customer. Any time beyond the minimum term required to make such repairs shall extend the term of this agreement to include such a reasonable additional repair time as is necessary under the circumstances. This agreement shall be interpreted according to the laws of Nichols’s location stated on the front page.
6. CUSTOMER’S JOB SITE RESPONSIBILITIES – Customer shall be responsible for the following: (a) providing a pumpable concrete mix. Customer shall indemnify Nichols and hold Nichols harmless from and against all claims, losses, liabilities, damages, and expenses, including, without limitation, attorneys’ fees, which may arise from (i) improperly batched, mixed, or delivered concrete or poorly graded materials which prohibit the concrete pumps from placing concrete in an acceptable manner, and (ii) any ad-mixtures which are detrimental to the proper pumping of concrete supplied. Nichols is not responsible for the condition or mix of the concrete or the suitability or fitness of the concrete for this job or for any particular purpose of Customer; (b) Customer shall provide reasonable scheduling of concrete delivery, labor force for set up of system, handling of pumping system while placing, grout for priming system; (c) a suitable place for on-site cleanup of system and pump and equipment wash-down; (d) safe and reasonable access to and egress from the job site; (e) labor for erection, dismantling and cleaning of placement system, if applicable; hoisting of lines above ground level, labor to set-up and clean up system are the responsibilities of Customer; (f) securing any necessary permits, easements, or licenses which may be required by state or local agencies for the performance of the concrete pumping service provided by Nichols; (g) Customer assumes all responsibility for the removal of pump from site if tow trucks, wreckers’ trucks, or etc. are required due to weather, road, or job site conditions; (h) it is the Customer’s responsibility to notify within 24 hours of any scheduling-cancellation changes or a cancellation fee may be charged.
7. DELAYS STOPPAGES AND BACKCHARGES – (A) No backcharges shall be charged against Nichols for delays or stoppage which results from (a) breach of Responsibilities of Customer, above set forth; (b) unpumpable mixes; (c) mechanical breakdown or failure of pumping Equipment that is caused by difficult or un-pumpable mixes; (d) for the first (2) hours of any other mechanical breakdown or failure of the pumping Equipment; (e) late arrival for a scheduled afternoon pour; (f) damage to asphalt; (g) strikes, lockouts, acts of God, adverse weather or other causes beyond the reasonable control of Nichols; (h) damage to property beyond curb line, or (i) loss of concrete resulting from addition of water. (B) Backcharges for concrete finisher overtime labor costs, if otherwise allowable, shall not exceed the actual time of the delay of stoppage of the pumping Equipment less the first two (2) hours of such breakdown or failure, as above provided. (C) Backcharges for loss of concrete, if otherwise allowable, shall accrue only for the amount of concrete lost which exceeds five percent (5%) of the total volume of concrete pumped in that one (1) day period. (D)In no event shall backcharges accruing exceed the total rental price chargeable by Nichols for that one (1) day period.
8. NOTICE AND WAIVER – Backcharges and claims for damages resulting from delay due to the fault of Nichols shall be deemed waived by Customer unless claim is made in writing to Nichols within twenty-four (24) hours from the beginning of the day.
9. TERMS OF PAYMENT – Customer/Customer shall pay to Nichols/Nichols all contract payments or invoices for services provided within THIRTY (30) days from date work was performed or equipment rentals are due. All sums not paid when due shall bear interest at the rate greater of (i) highest rate permitted by law or (ii) 1 ½% per month from the date until paid and Customer agrees to pay all costs of collection, including a reasonable attorney fee and other expenses, for the cost of collection for any amount past due.
10. GROUND CONDITIONS/POWER LINES – The Customer hereby agrees that it will assume all responsibility for the ground or soil conditions in the area where the Equipment is to be stored, parked or operated. The Customer 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 Equipment while in operation or otherwise. If the ground or soil condition is such that it cannot support the Equipment, the Customer shall take all necessary measures to ensure that these conditions are remedied prior to the Equipment being placed on that ground or soil. These measures include, but are not limited to, the provision of proper shoring or cribbing or other measures. Customer assumes all responsibility to protect the Equipment and persons in or around the Equipment from the danger of power lines. Customer shall not expose the Equipment or any persons in or around such Equipment to the danger of energized power lines. All power lines are to be de-energized prior to the Equipment being operated 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 Equipment clear of such power lines at the distances required by OSHA, ANSI and any other safety regulations or standards.
LIMITATION OF WARRANTIES – Customer acknowledges that the equipment is of size, design, capacity, and manufacturer selected by Customer. Nichols has not made, and does not make, any representation, warranty, or covenant express or implied with respect to condition quality durability or suitability of the equipment. Nichols makes no representations or warranty of any kind that the equipment is or shall be fit or suitable for any specific purpose or purposes of Customer. This document is a complete and exclusive statement of all the terms of this agreement and includes all the representations of the parties. Nichols makes no other express of implied warranties respecting the equipment nor shall this contract be varied, supplemented, qualified, or interpreted by any prior course of dealing between parties or by any usage of trade. Nichols is not the manufacturer of the equipment nor the manufacturer’s agent for any purpose. Nichols shall not be liable to Customer for any liability loss or damage caused or alleged to be caused, directly or indirectly by the Equipment.
12. ACCESS – Since Nichols Concrete Holdings, LLC and related equipment are heavier than some surfaces will support, the parties agree that Nichols shall have no liability for damage to parking lots, road surfaces, underground utilities and all other surfaces the equipment may have to travel on.
13. AUTHORIZED SIGNATURE – In the event this agreement has been executed on page one by an individual on behalf of Customer, the person whose signature is affixed hereto, the company or business entity (Customer) for which the individual has signed this agreement represent to Nichols/Nichols that the individual signing has full authority to execute this