Fill and Sign the Equipment Maintenance Agreement Form

Equipment Maintenance Agreement Agreement made on the       day of       , 20       , between       , a corporation organized and existing under the laws of the (Name of Maintenance Provider) state of       , with its principal office located at       , (Name of State) (Street Address)       , referred to herein as Maintenance Provider, and (City, County, State, Zip Code)       , a corporation organized and existing under the laws of the (Name of Customer) state of       , with its principal office located at       , (Name of State) (Street Address)       , referred to herein as Customer. (City, County, State, Zip Code) Whereas, Customer , for the full, complete and faithful performance of this Agreement, agrees to pay Maintenance Provider in accordance with the rates and prices as stated herein; Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. Equipment Covered by this Agreement : Type Description Serial Number Location                                                                                                 2. Place of Servicing. The Equipment shall be serviced at the closest Maintenance Provider location or, if the Equipment is permanently installed, at the Permanent Installation Location at       (Street Address, City, County, State, Zip Code) 3. Term. This Agreement shall be in effect from       to       , hereinafter (Date) (Date) called the term. 4. Type of Service. A. Basic Service. Customer will be entitled to servicing of the Equipment       (Number) Equipment Maintenance Agreement Page 1 of 6 times during the Term of this Agreement hereinafter called the Basic Service. B. Additional Service. Any services performed by Maintenance Provider in addition to the Basic Service, including travel time to a work site other than at a Maintenance Provider’s location, shall be limited by Maintenance Provider’s availability (the Additional Service). Such additional service is described in Exhibit A attached hereto and made a part hereof. 5. Rates for Maintenance. A. Basic Service. $       , per hour plus any taxes (the Basic Rate). B. Rate of Additional Service shall be $       per hour at Maintenance Provider’s location or $       per hour at any Permanent Installation Location, plus any taxes (the Additional Rate) . C. Rate for Service due to Customer’s Abuse, Mishandling or Improper Operation of the Equipment. Maintenance Provider’s current regular hourly rate of $       per hour. 6. Price for Parts Supplied by Maintenance Provider as a Result of Inspection Maintenance shall be the current list price described in Exhibit A, plus any freight, transportation and taxes, F.O. B.       . Wire Rope shall be the current (Location) list price as described in Exhibit A. 7. Basic Service to be Performed by Maintenance Provider. Maintenance Provider agrees to provide the inspection and maintenance services on the Equipment described in Exhibit B attached hereto and made a part hereof. Service may be reasonably delayed for weather or other causes beyond Maintenance Provider’s control. All cleaning of mechanical parts, adjustment and repair revealed by Maintenance Provider‘s inspection and maintenance will be performed at the time of the inspection or as soon thereafter as feasible. A CHARGE WILL BE MADE FOR ANY PARTS REPLACED . If requested by the Customer in writing, an estimate of the cost of parts to be replaced will be provided to the Customer prior to replacement . All labor for inspection, cleaning of mechanical parts, adjustment, or labor incurred in the replacement of parts due to normal use and wear is included in the Basic Rate. Labor involved in repairing damage due to abuse, mishandling, or improper operation of the Equipment will be charged at Maintenance Provider‘s regular current rates as provided in Exhibit B. 8. Customer’s Duties. Customer acknowledges that it has had an opportunity to inspect the equipment and acknowledges that it is in good operating condition and aggress that, when received from Maintenance Provider, the equipment was in good order and repair, and was in all aspects adequate, sufficient, and proper for the use for which it was intended. Customer acknowledges that it is its responsibility at its own expense to keep the equipment in good, safe, and efficient working order, repair, condition, and in conformity with all federal, state and local laws and ordinances pertaining thereto. Customer shall not alter or modify the equipment in any way or permit anyone to damage, deface, or remove it or any part thereof. Should the equipment or any part thereof become other than as stated in the previous sentence, then it is Customer’s responsibility to cease using the equipment and notify Maintenance Provider. Maintenance Provider will be deemed to Equipment Maintenance Agreement Page 2 of 6 have no knowledge of such condition until notified by Customer in writing , and will have no obligation to remedy such condition until Maintenance Provider agrees in writing to remedy such condition. Maintenance Provider shall have no responsibility, direction, or control over the manner of erection, use, or operation of equipment by Customer, unless specifically retained in writing for such additional service(s). Customer acknowledges that Maintenance Provider is an independent contractor, and not an agent of Customer. 9. Erection, Maintenance of Equipment, and Safety Equipment. The Customer agrees to erect, maintain, and use the equipment in a safe and proper manner in conformity with all federal, state and local laws and ordinances, pertaining thereto and in accordance with the       Manual, copies of which Customer does hereby (Name of Manual) acknowledge receipt. Should the equipment or any part thereof become unsafe, in a state of disrepair, or not be in good operating condition, Customer shall immediately notify Maintenance Provider and shall cease all operation of the equipment or any part thereof until the same has been examined by Maintenance Provider or by someone appointed by Maintenance Provider. Maintenance Provider shall have the right of free access to the equipment which is in the possession of Customer for the purpose of inspection and examination of said equipment. Maintenance Provider shall have no responsibility, direction, or control over the manner of erection, maintenance, use or operation of equipment by the Customer, unless specifically retained for such additional service(s). Customer acknowledges that Maintenance Provider is not an agent of Customer for the purposes of any inspection, repair or maintenance. Customer acknowledges that proper use of safety equipment is required for safe operation of the equipment and warrants that use will only be by competent and duly trained employees of Customer. 10. Reports of Service . A copy of an inspection report shall be completed, signed and attached to the Equipment or submitted to the Customer after each inspection. Copies of this or other reports of service performed hereunder shall be furnished to any legal authority or other party deemed appropriate by Maintenance Provider. 11. Performance of Services. Service and inspection pursuant to this Agreement will be performed during normal working hours on days not designated for Maintenance Provider’s employees as holidays. Services provided at other than those hours shall be double the hourly rate. All inspections and maintenance work shall be done by personnel qualified and supervised by Maintenance Provider. 12. Limitation of Service. Maintenance Provider will not be under any obligation to make any overhauls, alterations, renewals or repairs except those incidental to the normal use and proper operation of the Equipment as originally intended. Likewise, Maintenance Provider will not be required to either make safety tests or install new attachments or devices to the Equipment or alter the same, even if recommended or directed by insurance companies or by Federal, State, Municipal or other authorities, but Maintenance Provider agrees to do the foregoing when requested by the Customer upon terms and conditions to be agreed upon by the parties at that time. Maintenance Provider’s obligations to make any recommendations or issue any warnings will not exceed the extent that Maintenance Provider has contracted to provide service. Equipment Maintenance Agreement Page 3 of 6 13. Communication Systems. Proper maintenance and servicing of a communications system and its operating condition is not to be the responsibility of Maintenance Provider. Maintenance Provider will, however, check its operation during inspections and report any noted problem in operation coming to its attention to the Customer. 14. Renewal. Unless terminated by either party as set forth below, sixty (60) days prior to the end of each term, Maintenance Provider will forward to Customer the rates that will take effect in the new term. 15. Termination. Either party may terminate this Agreement at any time following ninety (90) days written notice. Maintenance Provider may, in addition, terminate this Agreement, following five (5) days’ written notice in the event that any payment owed to Maintenance Provider by Customer under this Agreement shall not have been made. 16. Indemnity and Hold Harmless. To the fullest extent permitted by law , the Customer agrees to indemnify and hold Maintenance Provider harmless, against claims, losses, actions, suits, proceedings, costs, expenses, damages, and liabilities (including but not limited to negligence, tort and strict liability) and any and all costs and expenses in connection therewith, including attorneys’ fees and costs, arising out of, or connected with the maintenance, repair, inspection use, erection, and possession of the equipment by Customer. This obligation to defend, indemnify and hold harmless includes any liability Maintenance Provider may have due to any determination that it is an agent of Customer under       law. It is not intended to indemnify (Name of State) Maintenance Provider for its own negligence. Insofar as these indemnity claims are concerned, the parties specifically waive protection of any workmen's compensation act of any state of the United States or province of Canada for any claim by Maintenance Provider or Customer whether in common-law negligence, indemnification, contribution, contract or otherwise. The parties agree to give each other prompt written notice of any and all such claims. 17. Insurance. As further provided herein, Customer agrees to be the absolute insurer of the equipment, without limitation for all casualty risks, fire, and theft. Customer shall maintain General Liability , or other similar insurance of not less than $       per occurrence, naming Maintenance Provider as an additional insured, so as to protect Maintenance Provider from claims which may arise out of or result from the operations, use, maintenance, ownership and/or rental of the equipment. Said coverage to include but not be limited to: (i) claims for damages because of bodily injury or death of any person; (ii) claims for damages insured by personal injury liability coverage; (iii) claims for damages because of injury to or destruction of property, including loss of use there from; and (iv) claims for damages due to Maintenance Provider’s status as an agent of Customer. The Insurance naming Maintenance Provider as an additional insured shall be endorsed so that it is primary insurance and that any other insurance providing coverage to Maintenance Provider is excess to the Insurance provided by Customer. 18. Disclaimer of Warranty for Products Not Manufactured by Maintenance Provider : BY EXECUTING THIS AGREEMENT, MAINTENANCE PROVIDER HAS NOT MADE AND DOES NOT MAKE, TO CUSTOMER OR OTHERS GENERALLY, ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, WITH RESPCET TO THE EQUIPMENT, NOR WITH RESPECT TO THE EQUIPMENT’S Equipment Maintenance Agreement Page 4 of 6 MANUFACTURE, DESIGN, CONDITION, DURABILITY, SUITABILITY, FITNESS FOR USE, OR MERCHANABILITY, AND MAINTENANCE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS THEREIN, OR ANY DAMAGES WHETHER ACTUAL, SPECIAL, CONSEQUENTIAL OR INCIDENTAL ARISING THEREFROM. 19. Payment Terms. Payment of amounts invoiced by Maintenance Provider is due from Customer, without discounts, on receipt of the invoice. Unpaid invoiced amounts become delinquent the 31 st day after invoice. A late charge to       % per month determined daily from the date of the invoice, will be due Maintenance Provider on invoices not paid within thirty (30) days of the invoice date, and in the event of such a default all costs of collections, including reasonable attorneys’ fee, will be paid to Maintenance Provider by Customer. 20. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 21. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 22. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of       . (Name of State) 23. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 24. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 25. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 26. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. Equipment Maintenance Agreement Page 5 of 6 27. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 28. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 29. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. W ITNESS our signatures as of the day and date first above stated. (Name of Maintenance Provider) (Name of Customer) By: By: (Signature of Officer) (Signature of Office)             (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation) Acknowledgements Attach Exhibits Equipment Maintenance Agreement Page 6 of 6