C & M Trucking, Inc. Service Agreement
Rigging & Moving Services/Rental Equipment/Storage Service
Service Provider is C & M Trucking, Inc. (herein after referred to as Rigger). Rigger agrees to provide services , subject to the terms and conditions set forth herein to the person or entity entering into this contract. (hereinafter referred to as “
Customer”). Customer hereby warrants that they have read, understood and agreed to be bound by all terms and conditions set forth in this Service Agreement (“Agreement”).
For the purposes of this agreement Rigger means C & M Trucking, Inc., its officers, directors, members, agents, representatives, principals, employees, affiliated companies and any subcontractors appointed by Rigger. Customer shall mean the entity listed on the quote and its officers, directors, members, agents, representatives, principals, employees, affiliated companies and any subcontractors appointed by Customer.
1. SERVICES AND EQUIPMENT; PERMITS. Rigger, if transporting equipment via it’s trucks shall obtain all necessary road and fuel use permits. Rigger agrees to provide the services and equipment to Customer as described on page 1 or in an attached work schedule and warrants that the services will be provided in a timely manner. Customer shall be solely responsible for obtaining all state and local permits pertaining to the Customer’s contemplated use of the equipment and its operation. All permits shall be obtained prior to Rigger’s performance of services under this agreement.
2. CHARGES; CHANGES IN RENTAL EQUIPMENT OR RENTAL PERIOD. Customer shall pay Rigger on
all services and equipment charges as agreed to herein and other charges in accordance with the Agreement. The parties understand that the services and/or equipment requirements of the Customer may change after the execution of this agreement. In the event of any changes required by Customer, Customer agrees that there may be changes in the service and/or equipment charges. All other terms and conditions of this Agreement will remain in full force and effect despite any amendment or change to the charges hereunder. Both parties agree that after the Minimum Rental Period has been fulfilled, the agreement can be terminated by giving seven (7) days written notice to the other party. In the event of cancellation, Rigger shall dissemble and remove the equipment. The Customer shall continue to pay for the services and equipment until the equipment arrives at Rigger’s facility. With Equipment rentals Customer agrees to be responsible for maintenance costs of the equipment while in it’s possession, including gas, oil, propane, etc.
3. OPERATION OF EQUIPMENT. Customer acknowledges that Customer, its agents and the operators of the equipment understand the operating procedures of each piece of equipment installed by Rigger and that all operators shall be competent to use the equipment. Customer is responsible for the operation of all equipment by its own staff. The raising and lowering of equipment attached to rigging supplied by Rigger is a delicate and potentially dangerous task if performed by persons not experienced in such matters. As a result, Rigger strongly recommends that Customer hire Rigger to raise and lower any such equipment. If Customer nevertheless elects to perform such services itself or through personnel not supplied by Rigger, then Customer shall be fully responsible for any damage caused to property (whether Rigger’s or anyone else’s) or personal injury to anyone resulting from Customer’s actions. In no event shall Customer, its agents or employees rig any equipment onto Rigger’s equipment.
4. INSURANCE. Customer hereby agrees to maintain in force for the duration of this Agreement, insurance of the following types: Insurance which covers the loss of their machinery and equipment while being moved or stored. General Liability, Workers Compensation and Employers Liability policy valid in all jurisdictions where the work will take place. Rigger shall also provide Customer with a certificate of all insurance coverages and worker’s compensation certificate.
5. INDEMNIFICATION. Rigger will indemnify and hold harmless Customer, its officers, directors, members, employees and agents from and against any and all claims, judgments, damages, costs of expenses (including reasonable attorney fees), to the extent arising out of, or occasioned by the operations of Rigger under this Agreement, except for occurrences or actions caused by the negligence or willful misconduct of Customer. Customer will indemnify and hold harmless Rigger, its officers, directors, members, employees and agents from and against any and all claims, judgments, damages, costs of expenses (including reasonable attorney fees) , to the extent arising out of, or occasioned by the operations of Customer under this Agreement, except for occurrences or accidents caused by negligence or willful misconduct of Rigger.
6. WAIVER OF SUBROGATION. Notwithstanding the foregoing, to the extent that the parties may legally so agree, neither Customer nor Rigger shall be liable (by way of subrogation or otherwise) to the other party (or to any insurance Customer insuring the other party) for any loss or damage to any person or any of the property of Customer or Rigger, as the case may be which loss or damage is covered by any insurance policies carried by the parties and in force at the time of any such damage, even though such loss might have been occasioned by the negligence of Customer or Rigger, and the party hereto sustaining such loss or damage so protected by insurance waives its rights, if any, of recovery against the other party hereto to the extent and the amount that such loss is covered by such insurance. This release shall be in effect only so long as the applicable insurance policies shall contain a clause or endorsement to the effect that the aforementioned waiver shall not affect the right of the insured to recover under such policies.
7. WAIVER OF RIGGER LIABILITY.
(a) IN NO EVENT SHALL RIGGER BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES CAUSED BY: (1) USE ON NON-RIGGER FURNISHED EQUIPMENT; (2) CUSTOMER’S FAILURE TO FOLLOW RIGGER’S OPERATIONS MANAGEMENT PLAN AND/OR DIRECTION, INCLUDING CUSTOMER’S FAILURE TO NOTIFY RIGGER OF ANY MALFUNCTION OF ANY PORTION OF THE EQUIPMENT; (3) FAILURE OR MALFUNCTION OF EQUIPMENT NOT SERVICED BY RIGGER; (4) ACTIONS OF NON-RIGGER PERSONNEL; (5) FORCE MAJEURE CONDITIONS AS STATED IN SECTION 10.
(b) RIGGER SHALL NOT BE LIABLE FOR THE FOLLOWING TYPES OF DAMAGES; (1) INDIRECT OR INCIDENTAL DAMAGES; INCLUDING BUT NOT LIMITED TO CONCRETE AND ANY SURFACES TRAVELED ON BY RIGGERS EQUIPMENT. (2) SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO: LOST PROFITS, SAVINGS OR REVENUE OF ANY KIND. RIGGER SHALL NOT BE LIABLE FOR THE TYPES OF DAMAGES ENUMERATED ABOVE WHETHER OR NOT RIGGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY.
8. INDEPENDENT CONTRACTOR STATUS. Rigger is in an independently established practice and desires to contract to provide services and/or equipment to the Customer as needed and requested by Customer. Both Rigger and Customer fully and freely intend to create an independent contract relationship under this Agreement. Rigger has the right to hire employees of its choosing to fulfill obligations under this Agreement. Rigger alone shall have the right to make the final decision regarding all employment and/or Human Resource issues regarding all employees, agents, affiliates, etc. of Rigger. Rigger has the authority to hire, discipline and/or discharge the temporary workers provided under this Agreement.
9. CHOICE OF FORUM; ARBITRATION. This Agreement shall be construed under the laws of the State of Ohio without giving effect to its conflict to laws rules. The parties agree any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and in the County of Lorain, Ohio. Judgment of the reward rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. If binding arbitration is not available for any reason, exclusive venue for all disputes arising out of or related to this Agreement shall reside in a court of competent jurisdiction in Lorain County, Ohio.
10. FORCE MAJEURE. Neither party will be liable in any manner for any loss or damage, incurred or suffered as a result of any failure or delay in performance caused by winds in excess of thirty (25) miles per hour, snow fall accumulation, dust storm, lighting storm, public warning issued by State authorities, strike, lockout, labor dispute, fire, Act of God or public enemy, riot, interference by civil and military authorities, acts of war or terrorism, compliance with law, delays in transit or delivery on the part of the transport companies or communications facilities or failures of sources of raw materials.
11. MISCELLANEOUS.
(a) The invalidity or unenforceability of any provision hereof shall not affect, modify, or impair the validity and enforceability of all other provisions hereof.
(b) No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
(c) Neither party shall assign its rights or delegate its duties under this Agreement without the prior written permission of the other party; except that either party may assign all or part of this Agreement to any of its affiliated companies without the consent or notice to the other party.
(d) Any failure or delay by either party in exercising any right or remedy in one or many instances will not prohibit a party from exercising it at a later time, or from exercising any other right or remedy.
(e) This Agreement and any schedules or exhibits referred to in this Agreement, which are incorporated herein, supersede and terminate any and all prior agreements, if any, whether written or oral, between the parties with respect to the subject matter contained herein. Each party agrees that it has not relied on any representation, warrantee or provision not explicitly stated in this Agreement, and that no oral statement has been made to either party that in any way tends to waive any of the terms and conditions of this Agreement.
(f) This Agreement constitutes the final written expression of all terms of the Agreement, and it is a complete and exclusive statement of those terms.
(g) No part of this Agreement may be waived, modified, or supplemented in any manner whatsoever except by a written instrument signed by duly authorized officers of the parties.
(h) Any provisions which by their nature extend beyond termination of this Agreement shall survive termination.
(i) If any provision of this Agreement is held unenforceable or invalid under any law, such unenforceability or invalidity will not affect the remainder of the Agreement.
(j) Customer shall pay Rigger all costs and expenses, including attorney’s fees, incurred by Rigger in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions, or provisions hereof.