General Terms and Conditions
SECTION A GENERAL TERMS
1. DEFINITIONS AND INTERPRETATIONS
1.1 Unless otherwise required by the context or subject matter, the following definitions shall apply:
“A/D Director” means an individual who meets 29 CFR 1926 Subpart CC’s requirements for an A/D director, irrespective of the individual’s formal job title or whether the individual is non-management or management personnel.
“Charges” means the charges payable to Circle 8 for the provision of the Services as specified in an applicable Work Order.
“Circle 8” means Circle 8 Crane Services LLC located in Corpus Christi, TX and includes its subsidiaries, affiliates, successors and assigns.
“Controlling Entity” means an employer that is a prime contractor, general contractor, construction manager or any other legal entity which has overall responsibility for the construction of an applicable project on a Site - its planning, quality and completion.
“Cranes and Equipment” means the cranes and/or equipment supplied under an applicable Work Order and includes but is not limited to any item of crane, equipment, machinery or vehicle, and any tools, accessories, parts, items of equipment and devices, or other personal property affixed to or supplied with such crane, equipment, machinery or vehicle supplied to the Customer by Circle 8;
“Customer” means the named customer in an applicable Work Order and includes any party claiming through, under or in trust for the Customer, and in the context of the payment of Charges or other expenses shall include any Third Party Payor.
“Customer’s Covenants” means the covenants, agreements and obligations contained or implied in these Terms and Conditions or an applicable Work Order or imposed by law to be observed and performed by the Customer.
“Dispute” means any dispute or issue arising between the Customer and Circle 8 pursuant to which the Customer considers that they should not pay Circle 8 or pursuant to which either the Customer or Circle 8 considers they have a claim against the other party.
“Due Date for Payment” means thirty (30) days from the date of the invoice sent to Customer for the provision of the Services.
“Event of Default” occurs when:
(a) any money payable under a Work Order is not paid on or before the Due Date for Payment, including, without limitation, any unpaid Charges and interest not paid within ten (10) business days from the date it was due;
(b) the Customer fails to observe and perform any of the Customer’s Covenants, other than a failure to pay money, and such failure continues for more than five (5) business days after Circle 8 has given the Customer notice requiring the Customer to remedy the breach;
(c) Circle 8 ascertains that any warranty, representation or statement made by the Customer under or in connection with these Terms and Conditions or any Work Order has been false in any material respect;
(d) the Customer, being an individual, becomes the subject of a bankruptcy or insolvency proceeding (or, in the good faith determination of Circle 8, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment), is declared mentally ill, is charged with or convicted of a criminal offense or dies;
(e) the Customer, being an entity, becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of Circle 8, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment;
(f) a receiver, or an agent in possession for a mortgagee is appointed in respect of any property of the Customer;
(g) a mortgagee takes possession of any property of the Customer;
(h) any writ of execution or similar process is made against the property of the Customer;
(i) an application is made, a resolution is passed or a meeting is convened for the purpose of considering a resolution for the Customer to be dissolved or otherwise wound up unless such process is for the purpose of a corporate restructuring;
(j) a compromise or arrangement is made between the Customer and its creditors;
(k) a resolution is passed, or a meeting is convened for the purpose of considering a resolution for the Customer to be placed under official management;
(l) the Customer admits in writing its inability to pay its debts;
(m) an application is made to a court for an order summoning a meeting of any class of creditors of the Customer;
(n) any lien is attached to or filed against any of the Cranes and Equipment supplied under any Work Order or any of the Customer’s assets or any attachment, representation or similar proceeding commences against the assets of the Customer; or
(o) for non-Fully Operated and Maintained Hires, as further described in Section 7, the Customer fails to keep the Cranes and Equipment in good repair, safe and efficient working order or if the Cranes and Equipment are removed from the location of delivery other than for return to Circle 8.
“Force Majeure” means:
(a) acts of god;
(b) outbreak of hostilities, riot, civil disturbance, acts of terrorism;
(c) the act of any government or authority (including refusal or revocation of any license or consent) where the said act is not a result of some neglect or default on the part of the relevant party;
(d) fire, explosion, flood, fog or bad weather;
(e) power failure, failure of telecommunications lines, failure or breakdown of the Cranes and Equipment, machinery or vehicles;
(f) default of suppliers or independent contractors;
(g) inability to obtain or shortages of materials, labor, fuel, equipment or supplies;
(h) theft or malicious damage;
(i) break-down of cranes unless such breakdown is caused by not following manufacturer’s recommended maintenance schedule or industry best practices;
(j) strike, lockout or industrial action of any kind;
(k) delays caused by independent freight companies; or
(l) any other cause or circumstance whatsoever (except financial difficulties or lack of funds) beyond the reasonable control of the relevant party.
“Fully Operated and Maintained Hire” means the hire of any Cranes and Equipment together with an Operator for such Cranes and Equipment.
“Ground Conditions” means the ability of the ground to support the Cranes and Equipment (including slope, compaction and firmness).
“Operator” means the operator employed or contracted by Circle 8 to operate the Cranes and Equipment during the Term.
“Rate” means the highest interest rate allowable by law.
“Services” means the provision by Circle 8 to the Customer of the services set forth in an applicable Work Order.
“Supporting Materials” means blocking, mats, cribbing, marsh buggies (in marshes/wetlands) or similar supporting material or devices.
“Site” means the site where the Customer requires the Services to be performed.
“Term” means the period for which the Customer has engaged Circle 8 to provide the Services, as specified on an applicable Work Order.
“Terms and Conditions” means these general terms and conditions and any amendment or future version of these general terms and conditions.
“Third Party Payor” means a party other than the Customer, as specified in an applicable Work Order, who shall be invoiced for the Charges by Circle 8.
“Work Order” means any applicable quote, work order, invoice or purchase order incorporating these terms and conditions pursuant to which the Services are to be supplied, any schedule to such agreements and any written amendment to such agreements.
1.2 Unless otherwise required by the context or subject matter, a reference to a party includes that party’s executors, administrators, personal representatives, successors and assigns. If a party comprises two (2) or more persons, a reference to a party includes the executors, administrators, personal representatives, successors and assigns of each of those persons.
1.3 If a party comprises two (2) or more persons, the covenants and agreements bind and must be performed by each of them jointly and severally and may be enforced against any one person or any two (2) or more persons.
1.4 These Terms and Conditions, any applicable Work Order and any Dispute is governed by, and is to be interpreted in accordance with, the laws of State of Texas, without regard to its conflict of laws or choice of laws principles.
1.5 By engaging Circle 8, the Customer hereby accepts and agrees to these Terms and Conditions, and waives any conflicting or additional provisions contained in any document supplied by the Customer. In the event of a conflict between these Terms and Conditions and any purchase order or other document supplied by the Customer, these Terms and Conditions will control. Any provision, printed or otherwise, contained in any acceptance, confirmation, or acknowledgement issued by the Customer that is inconsistent with, different from, or in addition to these Terms and Conditions is hereby expressly rejected by the parties and will not be considered as part of the agreement between Circle 8 and the Customer.
2. PAYMENT OF CHARGES
2.2 The Customer shall pay any sales, rental or other taxes, bonds or any other charges which may be levied upon an applicable Work Order and/or the Services.
2.3 The Customer acknowledges and agrees that the Charges are only applicable to the Services performed by Circle 8 in connection with an applicable Work Order and are based on the specifications provided by the Customer to Circle 8 in connection with such Work Order and Services.
2.4 Every special instruction to the effect that the Charges under an applicable Work Order shall be paid by the Third Party Payor shall be deemed to include a stipulation that if the Third Party Payor does not pay the Charges within thirty (30) calendar days of the Due Date for Payment, then the Customer shall pay the said Charges to Circle 8.
2.5 Circle 8 shall be entitled to charge an extra fee of $1000 per day per invoice for all delays caused as a result of Circle 8 obeying any instructions given by the Customer or the Customer not fulfilling the Customer’s Covenants.
2.6 Requests for credit or an extension of time to pay the Charges will not be considered by Circle 8 unless requested by the Customer or the Third Party Payor within the earlier of seven (7) calendar days from the date of invoice or the provision of the Services, as the case may be.
2.7 The Customer shall pay to Circle 8 all costs incurred by Circle 8 in enforcing payment of any amount due, including all fees payable by Circle 8 to:
(a) Circle 8’s employees for their time spent enforcing payment, such time charged per hour or part thereof at $100 per hour;
(b) a bank for overdraft or bounced check fees;
(c) any debt collecting agency appointed by Circle 8 from time to time; and
(d) any attorney engaged by Circle 8 from time to time on a full indemnity basis.
2.8 The Customer must pay to Circle 8 on demand all costs and expenses (including reasonable legal costs) which:
(a) Circle 8 pays or is liable to pay to make good any failure by the Customer to comply with any obligation under these Terms and Conditions or an applicable Work Order; or
(b) Circle 8 may incur in the enforcement or protection or attempted enforcement or protection of Circle 8’s rights under these Terms and Conditions or an applicable Work Order or in the Cranes and Equipment, including money paid by Circle 8 in releasing any lien or other encumbrance claimed on the Cranes and Equipment and in dismantling and removing the Cranes and Equipment from any premises.
2.9 Unless otherwise specified, the Charges are exclusive of any sales tax including, but not limited to, federal, state or local taxes, and the Customer agrees to indemnify, defend and hold harmless Circle 8 against any liability for any and all taxes, fees, permit and license expenses, and charges assessed on Circle 8 by any governmental authority arising out of, in connection with, or incident to the Services and/or these Terms and Conditions or an applicable Work Order.
2.10 A notice or demand given or made to any person under these Terms and Conditions or an applicable Work Order must be in writing and delivered to that person by either personal delivery, posting it by pre-paid or certified post to the address of that person appearing in an applicable Work Order or any other address nominated by that person, or electronic transmission (facsimile or email) to the facsimile number or email address of that person appearing in an applicable Work Order or any other facsimile number or email address nominated by that person. Notice will be deemed to be given or made in the case of personal delivery, when delivered, in the case of service by post, on the second business day following the date of posting, and in the case of service by electronic transmission, at the end of the business day on which such electronic transmission is completed.
3. TERMINATION
3.1 Circle 8 may terminate any Work Order immediately via written notice to the Customer upon an Event of Default.
3.2 On the occurrence of an Event of Default, Circle 8 may:
(a) immediately cease performance of the Services pursuant to any or all Work Orders between the Customer and Circle 8; and
(b) take possession of all Cranes and Equipment supplied under any or all Work Orders between the Customer and Circle 8 with or without notice to the Customer, and for this purpose the Customer authorizes irrevocable access to enter any Sites to remove the Cranes and Equipment and the Customer shall indemnify Circle 8 in respect of any loss arising from any act done under or by virtue of this subclause 3.2(b).
3.3 Upon termination of any Work Order following the occurrence of an Event of Default, the Customer must pay to Circle 8 by way of liquidated damages, in addition to and without prejudice to any other right or remedy of Circle 8, an amount equal to the total of:
(a) the unpaid balance of the Charges for the Term which would have been payable until the expiration of the Term had the applicable Work Order not been terminated;
(b) Circle 8’s costs and expenses incurred in repossessing the Cranes and Equipment and in entering on and removing the Cranes and Equipment from any Sites or other premises on which the Cranes and Equipment were situated, and making good any injury or damage caused to such Sites or premises;
(c) the interest calculated in accordance with clause 2.1; and
(d) any extra fees and costs paid or payable pursuant to clauses 2.5, 2.7 and 2.8.
3.4 The Customer shall not do any act or thing to impede the removal of the Cranes and Equipment at the end of the Term or the earlier seizure of the Cranes and Equipment by Circle 8 pursuant to these Terms and Conditions.
3.5 Notwithstanding anything contained in these Terms and Conditions or an applicable Work Order to the contrary, Circle 8 reserves the right to recall any and all the Cranes and Equipment supplied under any Work Orders between the Customer and Circle 8 at any time and without notice to the Customer when in Circle 8’s opinion the Cranes and Equipment are endangered or imperiled by any reason or cause whatsoever. The Customer shall indemnify Circle 8 in respect of any loss arising from any act done under or by virtue of this clause 3.5.
3.6 If any part of these Terms and Conditions or an applicable Work Order is, or becomes void or unenforceable, such part will be severed from these Terms and Conditions and such applicable Work Order without affecting the validity of the remainder of these Terms and Conditions or such applicable Work Order.
(a) Failure to exercise or delay in exercising any right, power or privilege in these Terms and Conditions or an applicable Work Order by a party does not operate as a waiver of that right, power or privilege.
(b) A single or partial exercise of any right, power or privilege does not preclude any other or further exercise of that right, power or privilege, or the exercise of any other right, power or privilege.
3.7 All remedies set forth in this Section 3 are cumulative and may be exercised concurrently or separately.
4. INDEMNITIES AND LIABILITY
4.1 The Customer agrees to INDEMNIFY AND HOLD HARMLESS Circle 8 against:
(a) any loss, damage, injury or death to any person (including the Operator) arising out of or in connection with the act, omission or negligence or otherwise of the Customer, the Customer’s employees, contractors and agents or any other third-party present at the Site whilst Circle 8 performs the Services at the Site (including, without limitation, any drawings or Site conditions provided to Circle 8);
(b) any loss or damage of any kind whatsoever caused to the Customer, the Cranes and Equipment or to the property of the Customer unless such loss or damage was caused by the gross negligence of Circle 8; and
(c) notwithstanding subclause 4.1(a) above, any consequential loss or damage sustained by the Customer or any other person howsoever caused.
4.2 The Customer agrees to assist and co-operate with Circle 8 in relation to Circle 8 exercising any and all of its rights in respect to the Cranes and Equipment, including without limitation Circle 8 instituting, carrying on and enforcing, compromising or completing any legal proceedings which Circle 8 thinks desirable to protect its rights in respect of the Cranes and Equipment.
4.4 IN NO EVENT, WILL CIRCLE 8 BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. IN NO EVENT SHALL CIRCLE 8 BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE VALUE OF THE WORK, GOODS OR SERVICES PURCHASED HEREUNDER WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.
4.5 Schedule A, attached hereto, sets forth certain state specific indemnities, which are incorporated herein as applicable. In the event of a conflict between the clauses of this Section 4 and the applicable terms of Schedule A, the applicable terms of Schedule A will control.
5. FORCE MAJEURE
(a) that party must give to the other party prompt written notice of
(i) the detailed particulars of the Force Majeure; and
(ii) so far as is known, the probable extent to which the party will be unable to perform or will be delayed in performing the duty or obligation;
(b) the relevant duty or obligation, so far as it is affected by the Force Majeure, will be suspended during the continuance of the Force Majeure; and
(c) the party will use all reasonable efforts to overcome or remove the Force Majeure as quickly as possible.
6. INTELLECTUAL PROPERTY
6.1 The following definitions apply to this Section 6:
(a) “Intellectual Property” means all registered and unregistered rights in relation to present and future copyright, trademarks, designs, know-how, inventions, discoveries, patents, confidential information, trade secret, trade or business or company name or other proprietary right or right of registration of such rights.
(b) “Background IP” means any Intellectual Property owned or controlled by a party prior to an applicable Work Order.
(c) “Project IP” means any Intellectual Property in results, data, deliverables, conclusions, observations, procedures, improvements, or related material or concepts generated or conceived in the course of performing the Services.
6.2 Background IP:
(a) Each party retains all right, title and interest in and to its Background IP.
(b) Customer grants to Circle 8 a non-exclusive, revocable, royalty-free license to use its Background IP in the course of performing the Services, solely for the purpose of performing the Services and in accordance with the terms of these Terms and Conditions and any applicable Work Order.
(c) Nothing in these Terms and Conditions or any applicable Work Order prevents a party from using or otherwise exploiting its Background IP for any purpose.
6.3 Project IP:
(a) Circle 8 owns all right, title and interest in any Project IP.
(b) To the extent necessary to give effect to subclause 6.3(a), the Customer hereby assigns to Circle 8 all right, title and interest it may have now or in the future in any Project IP effective immediately on the date such Project IP is created. The Customer will execute any such agreements, deeds, or documents and do or cause to do anything that may be reasonable to give effect to the assignment (including ensuring that any employees or contractors assign the Project IP to Circle 8).
7. CONDITIONS SPECIFIC TO FULLY OPERATED AND MAINTAINED HIRES
7.1 Circle 8 shall:
(a) arrange for delivery to and the return from the Site of the Cranes and Equipment;
(b) at its own expense keep and maintain the Cranes and Equipment in a proper working order and condition and in good and substantial repair; and
(c) arrange for the Cranes and Equipment to be operated by an Operator who is a properly trained and competent person to operate the Cranes and Equipment.
7.2 Circle 8 shall:
(a) be responsible to pay the Operator’s remuneration (inclusive of all other benefits required either under the applicable collective agreement, contract or at law to be paid to the Operator);
(b) effect a policy of employers’ liability insurance including workers’ compensation insurance in respect of the Operator;
(c) pay the costs of fuel (unless the Customer agrees to pay for such costs in an applicable Work Order), safety inspections, servicing, maintenance repair and operation in respect of the Cranes and Equipment; and
(d) Arrange for insurance in respect of the Cranes and Equipment, commercial general liability and riggers liability.
(a) specify the Site on which the Cranes and Equipment are to be operated;
(b) specify the route on the Site for the Cranes and Equipment to arrive at the area on which it will be used;
(c) warrant that they are entitled to grant Circle 8 free legal access to the Site;
(d) provide suitable site conditions including proper site access and ground conditions to Circle 8 free of charge in order to perform its hoisting operations;
(e) ensure that at all times:
(i) the Cranes and Equipment are used in strict compliance with all applicable rules, laws, regulations, and orders;
(ii) there is sufficient space and amenities for the use of the Cranes and Equipment on the Site;
(iii) the Cranes and Equipment travel and operate on terrain on the Site which is secure and not subject to slippage, subsidence or cave-ins;
(iv) the Cranes and Equipment, while traveling and operating at the Site, does not damage underground or above-ground utilities and installations;
(v) the Operator is provided with the accurate weight of all items to be lifted by the Cranes and Equipment;
(vi) a knowledgeable and skilled signalman is at all times available to direct the Operator in the operation of the Cranes and Equipment and the standard Crane and Derrick signals in accordance with American Standard B30.2-19.43 are used to direct the Operator when applicable; and
(vii) the attachments to the items to be lifted are sturdy and of sufficient strength to be able to life and support the items being lifted.
(f) not do or omit to do any out or thing which might in any way invalidate or prejudice any insurance effected by Circle 8; and
(g) not interfere with the Cranes and Equipment or with the Operator’s operation of the Cranes and Equipment.
7.4 In accordance with 29 CFR §1926.1402, the Customer shall:
(a) ensure that the Cranes and Equipment not be assembled or used unless Ground Conditions are firm, drained (such requirement does not apply to marshes and wetlands), and graded to a sufficient extent so that, in conjunction (if necessary) with the use of Supporting Materials, the manufacturers specifications for the Cranes and Equipment for adequate support and degree of level of the Cranes and Equipment are met;
(b) ensure that ground preparations necessary to meet the requirements set forth in subclause 7.4(a) are provided; and
(c) inform the Operator or any other operators of the Cranes or Equipment, as applicable, of the location of hazards beneath the Cranes and Equipment set up area (such as voids, tanks, utilities) if those hazards are identified in the documents (such as site drawings, as-build drawings, and soil analyses) that are in the possession of the Customer (whether at the Site or off-Site) or the hazards otherwise known to the Customer.
For the purposes of subclause 7.4(b), if the Customer is not the Controlling Entity for an applicable project, then the requirements of subclause 7.4(b) must be met by the Controlling Entity for such project. If there is no Controlling Entity for an applicable project, then the requirements of subclause 7.4(b) must be met by the employer that has authority at the Site to make or arrange for ground preparations needed to meet the requirements of subclause 7.4(b). If the A/D Director, the Operator, or any other operator of the Cranes or Equipment determines that Ground Conditions do not meet the requirements of subclause 7.4(a), such person’s employer must have a discussion with the Controlling Entity regarding the ground preparations that are needed so that, with the use of suitable Supporting Materials (if necessary), the requirements in subclause 7.4(a) can be met.
7.5 Circle 8 will not be held responsible for damage to the ground or any underground structures or utilities except to the extent caused by the gross negligence of Circle 8.
7.6 CIRCLE 8 MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO THE SERVICES, CRANE AND EQUIPMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CIRCLE 8 DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES AND/OR THE CRANES AND EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
8. INSURANCE
8.1 In addition to the following minimum requirements, if the Services are being performed in the State of Louisiana, please reference Louisiana LSA-RS 9:2780; if in the State of New Mexico, please reference NM ST § 56-7-1; if in the State of Oklahoma, please reference Oklahoma OK ST. T. 15 § 221; and if in the State of Texas, please reference V.A.T.S. INSURANCE CODE § 151.104.
8.2 Circle 8 and the Customer agree that upon notification by Circle 8, the Customer shall carry the following insurance coverages prior to the arrival of the Cranes and Equipment on the Site and that the insurance purchased shall be in compliance with the above referenced by State Statute(s). To the fullest extent permitted by law, the Customer shall procure the following coverages for Circle 8: (a) worker’s compensation and employer’s liability insurance, with limits of at least the statutory minimum, (b) primary non-contributory commercial general liability (CGL) insurance with minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, (c) excess umbrella non-contributory insurance in the amount of at least $5,000,000.00 and the Customer’s primary and excess/umbrella policies are primary and non-contributory to all of Circle 8’s insurance policies and Circle 8’s policies are excess to the 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 Cranes and 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 Term, (e) all policies are to be written by insurance companies acceptable to Circle 8, (f) Circle 8 and all affiliated partnerships, joint ventures, corporations and anyone else who Circle 8 is required to name as an additional insured on all liability insurance policies, including excess/umbrella policies, the Customer shall name Circle 8 as a primary loss payee on all insurance policies, and the Customer shall provide all insurance certificates to Circle 8 when requested. No claims made policies are allowed, (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 Circle 8’s policies, and the policies of anyone Circle 8 is required to insure are excess over all of the Customer’s policies. In the vent of loss, proceeds of property damage insurance on the Cranes and Equipment shall be first made payable to Circle 8 first before any other payments are made to any other party including the named insured. The Customer’s agreements to indemnify and hold Circle 8 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 parties may perform under an applicable Work Order without obtaining the above coverages, such an occurrence shall not operate, in any way, as a waiver of Circle 8’s right to maintain any breach of contract action against the Customer. The 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 other 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 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 these Terms and Conditions.
9. MISCELLANEOUS
9.1 At Circle 8’s option, all Disputes arising out of or relating to these Terms and Conditions or an applicable Work Order, or the breach thereof, may be decided by arbitration, which shall be conducted in accordance with the Crane Industry Arbitration Rules of the American Arbitration Association then in effect with a single arbitrator under fast-track procedures unless otherwise elected by Circle 8. All arbitration proceedings will be in Corpus Christi, Texas. This agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act. It is agreed that the Services performed and/or Cranes and Equipment provided pursuant to each applicable Work Order affects and involves interstate commerce. The award rendered by the arbitrators shall be final and judgement may be entered upon it in accordance with the applicable law in the court having jurisdiction thereof. Any legal action against Circle 8 arising out of or relating to the Services or these Terms and Conditions or an applicable Work Order, or the breach thereof, shall be commenced within one (1) year from the date of completion of the Services.
9.2 Circle 8 shall retain title to the Cranes and Equipment at all times. The Customer shall, at its own cost and expense, protect and defend the title and rights of Circle 8 to or in the Cranes and Equipment from and against all claims, liens, charges, encumbrances and legal process, whether imposed, asserted or instituted by creditors of the Customer or otherwise, and the Customer shall promptly take all action necessary, at tis own expense, to discharge any claims, liens, charges, encumbrances or legal process.
9.3 The provisions of these Terms and Conditions, which by their nature should apply beyond their terms, will remain in force and effect after any termination or expiration of any Work Order.
9.4 The relationship between Circle 8 and the Customer is that of independent contractors. Nothing contained in these Terms and Conditions or any Work Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, or fiduciary relationship between the parties, and neither party shall have authority to contractor for or bind the other party in any manner whatsoever.
9.5 The Customer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions or an applicable Work Order without the prior written consent of Circle 8. Any purported assignment of delegation in violation of this clause is null and void. No assignment or delegation relieves the Customer of any of its obligations under these Terms and Conditions or any Work Order. Circle 8 may assign any of its rights or delegate any of its obligations without the Customer’s consent.