PSE's Terms and Conditions

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1. INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER (“CUSTOMER”) AGREES TO INDEMNIFY AND SAVE PANHANDLE STEEL ERECTORS, INC. DBA PSE CRANE & RIGGING (“PSE”), ITS EMPLOYEES AND AGENTS HARMLESS FROM ALL CLAIMS FOR DEATH OR INJURY TO PERSONS, INCLUDING PSE’S EMPLOYEES, OF ALL LOSS, DAMAGE OR INJURY TO PROPERTY, INCLUDING THE EQUIPMENT, ARISING IN ANY MANNER OUT OF CUSTOMER’S OPERATION. 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 COSTS OF SETTLEMENT.  PURSUANT TO V.A.T.S. INSURANCE CODE §151.102 CUSTOMER SHALL NOT BE REQUIRED TO INDEMNIFY, HOLD HARMLESS, OR DEFEND ANY PARTY AGAINST A CLAIM CAUSED BY THE NEGLIGENCE OR FAULT, THE BREACH OR VIOLATION OF A STATUTE, ORDINANCE, GOVERNMENTAL REGULATION, STANDARD, OR RULE, OR THE BREACH OF CONTRACT OF PSE, ITS AGENT OR EMPLOYEE, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF PSE, OTHER THAN CUSTOMER OR ITS AGENT, EMPLOYEE, OR SUBCONTRACTOR OF ANY TIER. HOWEVER, THE INDEMNIFICATION OBLIGATION 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 CUSTOMER UNDER WORKER’S COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER EMPLOYEE BENEFIT ACTS. CUSTOMER’S OBLIGATIONS HEREUNDER SHALL FURTHER NOT BE LIMITED BY THE AMOUNT OF ITS LIABILITY INSURANCE AND THE PURCHASE OF SUCH INSURANCE FOR PSE 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 INDEMNIFICATION AND PROCUREMENT OF INSURANCE. IF THIS PARAGRAPH IS DECLARED INVALID, THEN ALL OTHER PARAGRAPHS OF THIS CONTRACT SHALL STAND.

2. Effective Date. These Terms and Conditions between Customer and PSE apply to all quote/estimate (“Quote”), or invoice issued pursuant to a purchase order number (“PO#”) by PSE to such Customer (“Invoice”), shall be binding on the parties upon “Acceptance” by Customer which is defined as the earliest to occur of the following (i) Delivery (as defined below); (ii) the issuance of a PO# by Customer for work to be performed pursuant to a Quote (collectively, “Work”); or (iii) confirmation in writing by the parties of agreement to the terms of the Quote. Unless otherwise amended or mutually agreed to by the parties, this agreement shall terminate on the job end date at the job end time.

3. Estimate Total Price/ Payment Terms. Unless otherwise stated, the “Estimate Total” stated on the Quote: (i) is only applicable to Work performed by PSE; (ii) is subject to availability at the time Acceptance; (iii) does not include applicable sales and use taxes; (iv) is based on continuous operation with no delays caused by factors outside the control of PSE; (vi) is provided within a Jobsite inspection and is subject to the Jobsite Conditions Section below; (vii) overtime rates shall apply to all hours worked on weekends and/or holidays; (a) time shall be charged for all travel, set-up, breakdown, and entry and exit from portal to portal; and (b) a daily minimum depending on the size of the crane, shall be applicable. Upon Acceptance, the pricing terms quoted in the Quote shall be final, subject to adjustments as outlined in these Terms and Conditions. For the avoidance of doubt, in the event the final amount charged for actual Work performed exceeds the estimate in the Quote, Customer agrees that its approval of such Work by is signature on confirmatory documentation constitutes its agreement to amend the Quote to the extent thereof. All payments will be due ten (10) days after the date of each Invoice. All payment shall be paid and delivered to the address designated by PSE on the face of the Invoice. Past due amounts plus any unpaid interest shall bear interest at 1.5% per month or to the maximum amount allowable under law. Convenience fee added to invoices paid by credit card.

4. Delivery/ Scope of Work. As used herein, “Delivery” is the earliest date on which PSE (i) takes possession of Customer’s equipment for purposes of performing the “Work”; (ii) arrives at the Customer’s Job Location (“Jobsite”) with its equipment (collectively, “Equipment” which includes crane, rigging, and/or related accessories listed in the Quote) in preparation for the performance of the Work. Customer acknowledges and agrees that PSE’s possession of Customer’s equipment is solely for the benefit and convenience of Customer and that between the time when such equipment is delivered to PSE and until such time the equipment is installed, the equipment shall be held by PSE at the sole risk and responsibility of Customer for loss, theft, destruction of such equipment and/or for any damage incurred by Customer or PSE arising out of such possession, in whole or in part, whether with or without fault on the part of PSE. Further, in the event such Customer equipment is held by PSE for any period greater than forty-eight hours, PSE shall have the right to charge Customer a storage fee which shall be included as part of the price for the Work. The Work to be performed shall be as stated on the Quote unless otherwise mutually amended by the parties. Customer acknowledges that the Equipment is of a size, design, and capacity specifically selected by Customer.

5. Operations: Lifting Lugs, Weights, Rigging, and Lift Plans. Customer is responsible for the adequacy of design and strength of any lifting lug or device which is part of, or attached to any object, and of any and all rigging and lifting apparatus failures or defects including the negligent use or negligent supervision of use by Customer of rigging or lifting apparatus supplied by PSE. Customer is responsible for out of or related thereto. Customer warrants that the weights given to PSE and/or operating personnel supplied by PSE will be true and accurate and agrees to accept all responsibility and liability for any actions and operations performed by PSE and operating personnel for the weights given. Customer is solely responsible for the method of rigging the load and agrees that all persons involved in the rigging process are under Customer’s direct supervision and control, including any rigging performed by PSE or its personnel. Any rigging assistance provided or chokers, shackles, slings, fittings or any other rigging equipment that may be loaned to Customer shall be used and accepted by Customer at its sole risk and responsibility. PSE makes no express or implied warranty of any kind whatsoever, with respect to such assistance or loaned equipment. In the event of Customer provided rigging equipment, Customer shall bear all risk and be responsible for any damage caused by failed rigging supplied by Customer, including damage to PSE’s Equipment. If required, Customer agrees to provide competent and qualified signal persons to direct PSE’s equipment operators. It is expressly agreed by and between the parties hereto that the Equipment and all persons operating, repairing, or maintaining and assembling/disassembling 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 leased Equipment. Customer agrees to provide or otherwise select competent and experienced personnel to direct the operation of the Equipment, in accordance with OSHA 29 CFR 1926.1428 signal person qualifications, and 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 B30.5-2014 (and as amended) shall be used when operating the Equipment, specifically Chapter 5-3 Operation, as well as the OSHA 29 CFR Subpart CC Cranes and Derricks in Construction sections 1926.1400 – 1926.1442. Customer specifically agrees that PSE has absolutely no control over any person operating or assisting in operating, repairing, or maintaining the leased Equipment. PSE 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 payments made by the Customer shall include the operator’s wages, even though the operator’s wages may be disbursed by PSE. This Agreement is upon the agreement of the parties that PSE has no right to replace or substitute personnel except at the direction of and with the approval of Customer and that the Customer shall have the right to control, including the right of termination, and shall be deemed to have exercised that right as to all details or operation of the leased Equipment and personnel the Customer selects to operate the leased Equipment. PSE is not responsible for the accuracy of any lift plan generated by PSE, Customer, or third party. Any lift plan prepared by PSE is based upon the specifications supplied by Customer. Customer agrees that it will review and approve any lift plan to ensure it is appropriate for the particular operation being conducted.

6. Jobsite Conditions. 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. Customer is responsible for providing overall jobsite safety. Customer is responsible for providing safe ingress and egress for the Equipment and appropriate Jobsite clearance and access as necessary for PSE’s performance of the Work, including but not limited to appropriate staging area for crane pre/post rig up/down. Customer shall provide a clear, level and adequately compacted area and is responsible for the sub-grade. Customer will determine set up location and provide plating, mats or a re-compacted work area as necessary. All power lines in the work area shall by identified by Customer prior to the Work beginning. Customer shall not expose the Equipment or any persons in or around such Equipment to the danger of energized power lines. Customer shall protect the Equipment and persons in or around the Equipment form the danger of power lines. Customer shall be solely responsible for costs and/or damages caused by or arising out of delays to the Work due to inadequate Jobsite conditions. Customer acknowledges that the Equipment may exceed the maximum weight allowance for certain improved surface areas at the Jobsite(s) and agrees that Customer shall be responsible for and shall hold PSE harmless from any resulting damage arising out of or relating thereto, including but not limited to parking areas, road surfaces and/or underground installations.

7. Insurance. Customer agrees to purchase the following insurance coverages prior to the Equipment’s arrival on the Jobsite. Pursuant to V.A.T.S. INSURANCE CODE §151.104, additional insured coverage shall be limited in scope, in the same manner as set in Section 1 forth above, such that it shall not provide coverage which is prohibited for an agreement to indemnify, hold harmless, or defend. Customer shall procure the following coverages for PSE: 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 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 $5,000,000 and Customer’s primary and excess/umbrella policies must be endorsed so that they are primary and non- contributory to all of PSE’s insurance policies and PSE’s policies are excess to Customer’s 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 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; e) all policies are to be written by insurance companies acceptable to PSE; f) PSE and all affiliated partnerships, joint ventures, corporations and anyone else who PSE 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 Form CG 20 10 10 01 and ISO CG 20 37 10 01 must be used), Customer shall name PSE as a Loss Payee on all insurance policies, and Customer shall provide all insurance certificates to PSE when requested; g) all policies shall be endorsed to require the insurer to give thirty (30) days advance notice to all insured’s prior to cancellation; h) all of PSE’s policies, and the policies of anyone PSE is required to insure are excess over all of Customer’s policies. In the event of loss, proceeds of property damage insurance on the Equipment shall be made payable to PSE. Customer’s agreements to indemnify and hold PSE 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 Customer may perform under this agreement without obtaining the above coverages, such an occurrence shall not operate, in any way, as a waiver of PSE‘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 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. 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 agreement.

8. Limitation of Liability. In no event shall PSE be liable for consequential, incidental, indirect or special damages.

9. Events of Default. PSE may declare this Agreement in default (after the lapse of the cure period described below) if any one or more of the following occurs: (i) Customer fails to make any payment required hereunder when due; (ii) Customer materially fails to properly supervise the operation of the Equipment; (iii) Customer materially fails to observe or perform any other covenant or requirement of this Agreement; (iv) Customer attempts to sell, transfer or encumber the Equipment; (v) a voluntary or involuntary proceeding is instituted in any court of competent jurisdiction, seeking a decree or order: (A) for relief in respect of Customer under any applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, or other similar law; (B) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Customer or its property, and/ or (C) for the winding up or liquidation of the Customer’s affairs; and/or; (vi) Customer shall generally fail to pay its debts as they come due.

10.  If Customer fails to cure any default within forty-eight (48) hours, PSE may enter, with or without legal process, any premises where the Equipment is located and take possession thereof. Customer shall provide PSE with unobstructed ingress and egress for such purpose. Furthermore, Customer shall immediately pay to PSE all amounts then due hereunder and all costs of removal and repossession of the Equipment. Customer shall also pay PSE all costs incurred by PSE, including court costs and reasonable attorneys’ fees, in connection with any efforts to collect any unpaid amounts due from Customer. In addition to the rights set forth herein, PSE shall be entitled to exercise all other rights and remedies under applicable law and/or equity. The remedies provided for herein shall not be deemed exclusive, but shall be cumulative, and the exercise of any one such remedy shall not prevent PSE from also exercising any and all other remedies hereunder.

11. Force Majeure. The obligations of PSE under this agreement shall be suspended to the extent that PSE is hindered or prevented from performing its obligations because of labor disturbances or difference with workmen or employees, including strikes and lockouts or act of God. PSE shall not be liable for non-delivery or delay in Delivery or damage which may arise if such failure is the result of fires, embargo, storms, accidents, delays caused by independent freight companies, federal, state, municipal or other governmental action, statutes, ordinances, regulations, shortage of equipment, inability to obtain new materials, labor, fuel or supplies, or interferences, or any circumstances or cause whatsoever beyond the control of PSE.

12. Miscellaneous: (a) Severability. If any provision of this Agreement is held to be invalid or illegal by a Court of competent jurisdiction, the invalid or illegal term will be deemed excluded from this Agreement and will not invalidate the remaining terms of this Agreement. (b) All Equipment shall remain personal property, and title thereto shall remain in PSE or its assignee exclusively. Any attachments, accessions, replacement parts, repairs or additions to the Equipment shall automatically become PSE‘s property. Nothing in this Agreement shall be deemed to have the effect of conferring any right or title whatsoever in or to the Equipment upon or to Customer, other than as a Customer thereof. Customer shall keep the Equipment free from any and all liens, encumbrances and claims whatsoever, and shall not do or permit any act which may encumber or impair PSE‘s title or rights in the Equipment. (c) No Waiver. PSE‘s failure at any time to require strict performance by Customer of any of the provisions of this Agreement shall not waive PSE‘s right to demand strict compliance therewith or with any other provision hereof; and no single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. (d) Notices. Any notices hereunder shall be in writing and addressed to the party to be notified at the address set forth on the reverse side of this Agreement, and shall be deemed validly given (i) three (3) days following deposit in the U.S. certified mails (return receipt requested), postage prepaid, or (ii) the next Business Day after such notice was delivered to a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement satisfactory with such carrier, made for the payment thereof, or (iii) upon receipt of notice given by facsimile, or personal delivery. (e) Choice of Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the law of the State of Texas excluding its conflict of laws provisions. Customer agrees that exclusive jurisdiction to bring and maintain any action or proceeding arising out of or related to this Agreement (excluding the collection of Invoice charges) shall be brought in Gregg County, Texas and any action or proceeding arising out of or related to the collection of Invoice charges shall be brought in Henry County, Georgia. Any legal action against PSE arising out or relating to this Agreement or the breach thereof, shall be commenced within one (1) year from the date of the Completion of the Work, or the date the Equipment is rented to Customer, whichever is later. (f) Authorized Party. In the event this agreement has been executed on the reverse side by an individual on behalf of a corporation or other business entity, the person whose signature is affixed hereto and the company for which the individual has signed this agreement represent to PSE that the individual signing has full authority to execute this agreement on behalf of said corporation or other business entity. (g) Entire Agreement. These Terms and Conditions shall supersede any and all prior offers, agreements, or understandings and comprise the entire agreement and contract between the parties and there are no understandings, representations, warranties or promises, verbal or otherwise pertaining to the Work or to the Equipment, which are not incorporated in, or attached to this agreement.