NexGen Quote Terms and Conditions

Any Quote issued by NexGen Crane & Rigging, LLC (a “Quote”) is subject to the following terms and conditions (the “Terms and Conditions”). The Terms and Conditions constitute an offer by NexGen Crane & Rigging, LLC, a Mississippi limited liability company (“NexGen”), to the customer whose name is set forth in the Proposal (“Customer”), and such offer may be accepted only on the exact terms set forth in the Terms and Conditions. Any different or additional terms in Customer’s acceptance of this offer are hereby objected to. Shipment and/or delivery by NexGen of any of the goods covered hereby, or performance of services hereunder, shall in all cases constitute an unqualified acceptance of all the Terms and Conditions and the Quote by Customer. Notwithstanding the foregoing, the Terms and Conditions shall not apply to purchase orders, proposals, or quotes issued by NexGen pursuant to NexGen’s Master Rental Agreement.

• Rental Of Equipment. NexGen hereby leases to Customer, and Customer hereby leases and hires from NexGen, on an operated and maintained basis, the machinery, equipment, accessories and other items described in the Quote (collectively, the “Equipment”). No Quote shall be binding on the parties unless it is accepted and executed by NexGen and Customer. Notwithstanding the foregoing, all Equipment leases between the parties shall be subject to the Quote and the Terms and Conditions (collectively, the “Agreement”), regardless of whether or not such lease is further documented by a Quote. NexGen shall provide to Customer one or more persons experienced in operating and maintaining the Equipment (which may consist of an operator and/or crew person(s), hereinafter collectively referred to as the “Operator”), who shall at all times operate and maintain the Equipment detailed in the Quote. Customer acknowledges and agrees that at no time shall the Equipment be operated, in any fashion or for any purpose, by anyone other than the Operator. Customer is responsible for providing overall jobsite safety and accurate load weights. Customer is responsible for rigging, hooking and unhooking loads except where and to the extent NexGen’s employees are hired to perform such services pursuant to an agreement in writing by the parties hereto.  If required, Customer agrees to provide competent and qualified signal persons to direct NexGen’s equipment operators. Customer warrants and represents that any signal person(s) and rigger(s) supplied by Customer or others for whom Customer is responsible (subcontractors, agents, etc.) are qualified as defined by OSHA Regulation, 29 CFR §§ 1926.1425 & 1428, and that documentation of such qualification is available on site.
• Term of Agreement. The term of this Agreement shall commence on the earlier of (a) the date that the Quote is executed by NexGen and Customer or (b) the date that the services, products and/or Equipment are provided to Customer and shall continue until terminated as provided herein. The term(s) of the lease(s) of the individual pieces of Equipment leased by Customer hereunder shall commence on the earlier of: (a) the date(s) specified in the Quote for those particular pieces of Equipment, (b) the date the first piece of such Equipment is shipped or transported to or for the benefit of Customer or (c) as the parties hereto may otherwise agree in writing. Upon expiration of the term of a specific Equipment lease, the applicable Equipment shall be returned to a location designated by NexGen, in the same condition as when delivered to Customer, ordinary wear and tear from normal use thereof excepted.
• Rent and Security Deposit.
  1. The rental amount for the Equipment, which amount shall include the charges for the Operator, shall be the amount set forth on the respective Quote for the Equipment. Unless otherwise agreed by the parties as stated on the Quote for the particular Equipment, rent shall begin at the time the Equipment leaves NexGen’s yard and shall continue until such time as the Equipment is returned as set forth above or as the parties hereto may otherwise agree. Rent shall be subject to adjustment for excess hours of usage or Operator time in accordance with the Quote, custom in the area where the Equipment is used, or by any applicable collective bargaining agreement, as the case may be. Customer shall not be entitled to any abatement of rent, deduction, reduction thereof or set-off, counterclaim, recoupment or defense against rent (a “Rent Adjustment”) for any reason unless and to the extent the Rent Adjustment is due to a breach of NexGen’s warranty herein or the negligence or willful misconduct of NexGen. Unless otherwise agreed to by the parties in the Quote for the particular Equipment, all rent and other amounts due under each Quote (except for reimbursement of damage or accident repair expenses under Section 8 below) shall be due and payable net thirty (30) days from the date of the applicable invoice. In the event that the Equipment rental extends beyond the estimated return date or if any other expenses are incurred during the term of the Quote which were not included in the Quote estimate, NexGen shall invoice the Customer for such additional amounts with such amounts due upon receipt of the invoice.
  2. Customer shall pay the security deposit for the Equipment in the amount set forth on the respective Quote prior to the Equipment leaving NexGen’s yard. Any amounts due to NexGen from Customer at the end of the term of the Quote, including but not limited to amounts due for damage to the Equipment, shall be offset against the security deposit.  In the event that the security deposit exceeds all amounts due to NexGen under any Quote, such excess shall be refunded to Customer. 
• Transportation Charges. Unless otherwise agreed by the parties in the Quote for the Equipment, Customer shall be responsible for costs of all loading, unloading, set-up, assembly, dismantling and transportation of the Equipment and shall pay all other freight, demurrage, storage, switching, drayage, rigging, trucking or other transportation charges associated with Customer’s lease of the Equipment.
• Control, Supervision And Operation Of Equipment And Operators. Customer agrees that the Equipment belongs to NexGen and all persons authorized to operate such Equipment shall be NexGen’s employees, agents or independent contractors. Customer is responsible for providing overall jobsite safety. Customer is responsible for providing NexGen accurate load weights and accepts all liability from its failure to do so. Customer assumes responsibility, control of, and supervision for rigging, hooking and unhooking loads. Customer agrees to provide competent and experienced personnel to supervise and direct the operation of the Equipment, including competent and qualified signal persons. The Equipment shall be operated in a safe and lawful manner at all times, and in accordance with the manufacturer’s operators manual, the Occupational Safety and Health Act of 1970, as amended (“OSHA”), all laws and regulations thereunder (particularly 29 C.F.R. Part 1926, subpart CC CRANES AND DERRICKS IN CONSTRUCTION and CFR 1910.180 – CRAWLER LOCOMOTIVE AND TRUCK CRANES), together with all applicable American National Standards Institute (“ANSI”) standards (including, but not limited to, the Standard Crane and Derrick Signals in accordance with ASME/ANSI B30.5-3.3 (amended 2007)) and the Mine Safety and Health Administration (“MSHA”). The operation of the Equipment shall not exceed the manufacturer’s safety requirements and rated load capacities. If the Equipment is a crane, it is to be used as a lift crane ONLY. Demolition, dynamic compaction, pile driving, and clamming work require additional documentation and Equipment authorized only by NexGen. Equipment shall not be used when overloaded, or to carry persons or property for hire.
• Compliance With Laws. Customer shall comply with and conform to all laws, regulations, ordinances, rules and orders of any governmental entity relating to this Agreement, including but not limited to laws and regulations relating to the possession, transportation and use of the Equipment, all OSHA laws and regulations and MSHA. Customer shall also comply with all applicable ANSI Standards. Customer shall indemnify, defend and hold NexGen harmless against all actual or asserted violations of any such laws, regulations or standards and pay all costs and expenses of every character, including reasonable attorneys’ fees, occasioned by or arising out of such violations, including but not limited to any use, or loss of use, of any of the Equipment as the result of any violation of law, regulation or standard while the Equipment is under the Customer’s possession, custody and/or control, except to the extent such violation is due to a the negligence of NexGen.

7. Title. This is an agreement of rental only. All Equipment shall remain personal property of NexGen or its assignee, and title thereto shall remain in NexGen or its assignee exclusively. Any attachments, accessions, replacement parts, repairs or additions to the Equipment shall automatically become NexGen’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 to Customer, other than as a lessee 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 NexGen’s title to or rights in the Equipment. Upon NexGen’s request, Customer shall promptly execute and/or deliver to NexGen all documentation (such as estoppel certificates or a landlord waiver), as NexGen deems necessary or appropriate for the preservation, perfection or enforcement of NexGen’s interests in the Equipment and NexGen’s rights under this Agreement, and if Customer fails to do so, Customer hereby appoints NexGen as agent for Customer and authorizes NexGen to execute such documents on Customer’s behalf and in Customer’s name.
8. Accidents. Customer shall immediately notify NexGen of any accident involving personal injury and/or property damage arising from the transportation, possession, use, maintenance or repair of the Equipment, so that NexGen’s ability to investigate the accident is not prejudiced. NexGen shall have immediate access to, and right of retrieval and repair of the Equipment. Customer shall not remove Equipment or components thereof from the site. NexGen shall make or have the sole right to direct all repairs to the Equipment. Customer shall immediately deliver to NexGen any summons, pleading, notice, or paper of any kind involving any claim, suit or proceeding relating to any accident or event involving the Equipment. Customer shall fully cooperate with NexGen in investigating and defending the same. In the event of any damage to the Equipment arising while the Equipment is in the care, custody and control of Customer or in transit to or from Customer’s site, Customer shall be responsible for costs of repairs or replacement of the Equipment and related expenses, except to the extent that such damages arise from the negligence or willful misconduct of NexGen or NexGen’s breach of the warranty herein. All repairs shall be performed to meet manufacturer’s specifications and the repaired Equipment must be certified by the manufacturer. NexGen and Customer acknowledge and agree that the replacement cost, as determined by an independent appraiser selected by NexGen, shall be used to determine the value of the Equipment in order to establish the amount of the loss or the damage thereto. Rental payments shall not be applied to loss or damage claims. The lease term and rental period shall continue to run while the Equipment is being repaired and shall continue to run until all repairs are completed and paid, unless the parties hereto agree otherwise in writing.
9. Insurance. Customer shall take out, carry and maintain the following insurance during the term of this Contract.
10. Commercial General Liability, including contractual liability, protecting the respective interests of NexGen and Customer against liability for property damage and personal injury or death arising out of this Agreement, including but not limited to the maintenance, repair, use and operation of the Equipment, (including, but not limited to rigging, hooking and unhooking of loads), with limits no less than $1,000,000 each occurrence and $2,000,000 in the aggregate;

1. Umbrella Liability with limits of not less than $3,000,000;

1. Statutory Workers’ Compensation for the state of hire/operation;

1. Employers’ Liability with limits not less than $1,000,000; and

1. Automobile Liability, protecting against liability for property damage and personal injury or death arising out of the possession, use, operation and transportation of the Equipment, with limits of liability not less than $ 1,000,000 each accident.

With the exception of (c) above, such insurance shall name NexGen, and its subsidiaries, affiliates, and partners as Additional Insureds, and all insurance policies listed above shall contain a waiver of subrogation in favor of NexGen, it affiliates and its insurers.  The All Risk Property Insurance shall also name NexGen as a Loss Payee.

All insurance required hereunder shall be maintained with responsible insurance companies rated A- or better by A.M. Best Company and shall provide that the coverage thereunder may be altered or canceled only after not less than thirty (30) days’ prior written notice to NexGen.

Customer shall furnish to NexGen Certificates of Insurance and policy endorsements evidencing that all insurance required in this Section 9 has been secured and all requirements under this Section 9 have been satisfied.

10. Payment. In addition to the payment of the rent and security deposit specified on any Quote, Customer shall pay NexGen upon demand:
11. all sales tax as and if required by the law of the jobsite location;

1. all fines, penalties, forfeitures, court costs, expenses and attorneys’ fees arising with respect to Customer’s possession, use, custody or control of the Equipment except to the extent arising out of NexGen’s negligence or willful misconduct; and

1. NexGen’s costs and expenses, including reasonable attorney’s fees (unless prohibited by law), incurred in enforcing this Agreement, collecting any amounts due hereunder, or in repossessing the Equipment.

NexGen reserves the right to withhold mobilization of the Equipment for Customer’s (a) late payment, (b) nonpayment or (c) failure to provide reasonable assurance of payment upon NexGen’s request.  Any payment not received by the date required herein shall bear interest at 1.5% per month or the maximum rate allowed by law, whichever is less.

11. Liability; Indemnification.

TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND NEXGEN, ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, SUCCESSORS, ASSIGNS, EMPLOYEES, REPRESENTATIVES AND AGENTS (THE “INDEMNITEES”) FROM AND AGAINST ANY AND ALL LIABILITY FOR ANY CLAIM, SUIT, JUDGMENT, DAMAGE, INJURY, LOSS, COST, EXPENSE OR PENALTY OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ATTORNEYS’ FEES (TOGETHER, “CLAIMS”), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EQUIPMENT INCLUDING WITHOUT LIMITATION, CLAIMS CONNECTED WITH OR RESULTING FROM THE SELECTION, ACCEPTANCE, DELIVERY, CUSTODY AND/OR USE OF THE EQUIPMENT BY CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES. HOWEVER, CUSTOMER SHALL HAVE NO OBLIGATION TO INDEMNIFY AN INDEMNITEE TO THE EXTENT CLAIMS ARISE OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. CUSTOMER’S INDEMNIFICATION OBLIGATION AS PROVIDED FOR HEREIN SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. CUSTOMER EXPRESSLY AGREES TO WAIVE ANY WORKERS’ COMPENSATION IMMUNITY IT MAY OTHERWISE HAVE. IT IS EXPRESSLY AGREED THAT THIS INDEMNIFICATION CLAUSE APPLIES TO BOTH THIRD-PARTY CLAIMS AND CLAIMS BETWEEN AN INDEMNITEE AND CUSTOMER. IN JURISDICTIONS IN WHICH THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION IS BROADER THAN THAT ALLOWED BY APPLICABLE LAW, THIS SECTION SHALL BE INTERPRETED AS PROVIDING THE BROADEST INDEMNIFICATION PERMITTED AND SHALL BE LIMITED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH SAID LAW.

12. Warranty.

NEXGEN WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD OPERATING CONDITION at the commencement of the equipment lease and the oPerator shall operate and maintain the equipment in a Good, workmanlike manner during the term of the lease. nexgen makes no other warranty, express or implied, of merchantability, fitness for a particular use or otherwise.

13. Default; Termination. NexGen may declare Customer in default under this Agreement (after the lapse of the cure period described below) if any one or more of the following occurs:
14. Customer fails to make any payment required hereunder when due;
15. Customer materially fails to properly supervise the operation of the Equipment;
16. Customer materially fails to observe or perform any other covenant or requirement of this Agreement;
17. Customer attempts to sell, transfer or encumber the Equipment;
18. a voluntary or involuntary proceeding is instituted in any court of competent jurisdiction, seeking a decree or order:
19. for relief in respect of Customer under any applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, or other similar law,
20. for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Customer or its property, or

• for the winding up or liquidation of the Customer’s affairs; or

1. Customer shall generally fail to pay its debts as they come due.

If Customer fails to cure any default within forty-eight (48) hours, NexGen may enter, with or without legal process, any premises where the Equipment is located and take possession thereof. Customer shall provide NexGen with unobstructed ingress and egress for such purpose. Furthermore, Customer shall immediately pay to NexGen all amounts then due hereunder and all costs of removal and repossession of the Equipment. Customer shall also pay NexGen all costs incurred by NexGen, 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, NexGen 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 NexGen from also exercising any and all other remedies hereunder.

14. No Assignment or Sublease. This Agreement may not be assigned by Customer and the Equipment may not be offered by Customer for use or sublet to any other person or entity without NexGen’s prior written consent. Any consent by NexGen to an assignment or sub-lease shall not release Customer from any obligations under this Agreement.
15. NexGen’s Right to Effect Compliance. If Customer fails to comply with any provision of this Agreement including, but not limited to, the obligation to pay or satisfy any taxes, liens, insurance premiums or other charges, NexGen shall have the right, but shall not be obligated, to effect such compliance in whole or in part, and all related costs and expenses shall be paid by Customer immediately upon demand by NexGen. NexGen’s effecting such compliance shall not constitute a waiver of any default by Customer hereunder.
16. Lifting Lugs, Rigginq And Apparatus. Customer hereby assumes all responsibility and liability for the adequacy of design and strength of ANY lifting lug or device embedded in or attached to any object, and ANY AND ALL rigging or lifting apparatus, and Customer will indemnify, defend and hold NexGen harmless from any and all actions, causes of action, claims, suits, demands, investigations, obligations, judgments, losses, costs, liabilities, damages, fines, penalties and expenses, including attorney’s fees arising or resulting therefrom.
17. SDS Requirements. Customer shall provide to NexGen, upon delivery of the Equipment to the job location, copies of safety data sheets (SDS) for all hazardous chemicals in use at said location, or make such SDS available at a central location at the job site, in order that NexGen may comply with the requirements of all applicable local, state and federal laws and regulations, to the extent applicable to NexGen, including OSHA regulations, regarding hazard communication. Furthermore, Customer shall inform NexGen of all precautionary measures that need to be taken to protect the Equipment operators during normal operating conditions and in foreseeable emergencies.
18. Limitation of Liability. Notwithstanding any other provision herein, unless otherwise provided by applicable law, in no event shall NexGen be liable for special, incidental, consequential or exemplary damages arising out of or related to this Agreement, whether the action in which recovery of any such damages is sought is based upon contract, tort, statute or otherwise, even if NexGen has been advised of the possibility of such damages.  Additionally, notwithstanding any other provision herein, in no event shall NexGen be liable for delay damages, liquidated damages or any other damages pertaining to scheduling impacts on any construction project, and unless otherwise required under applicable law, in no event shall NexGen’s total liability for any and all claims, losses or damages arising out of, connected with or resulting from this Agreement exceed the amount paid by Customer pursuant to the Quote from which such cause arose.  Customer acknowledges that this limitation of liability is reasonable and that the price of NexGen’s Quote has been determined based upon the foregoing limitation of liability.  
19. Entire Agreement. This Agreement represents the entire agreement between the parties with regard to the Equipment. Except as otherwise expressly stated herein, Customer and NexGen acknowledge and agree that the terms and conditions set forth in any Customer purchase order or other Customer document shall be of no force and effect with respect to the Equipment and the transactions contemplated by this Agreement. In the event NexGen accepts a Customer purchase order or another writing in lieu of a Quote, only those terms which provide the information normally required in a Quote shall apply, all other terms thereof will be void, and the terms and provisions of this Agreement shall control as to any Equipment leased hereunder.
20. Miscellaneous.
21. No obligation of NexGen hereunder shall survive the term hereof. Any cancellation or termination of this Agreement pursuant to the provisions hereof shall not release Customer from any then outstanding obligations to NexGen hereunder.

1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior written and oral agreements.

1. This Agreement may be modified or amended only by a written instrument executed by each of the parties.

1. This Agreement shall be binding upon and shall inure to the benefit of the parties and, subject to Section 14 hereof, their respective successors and permitted assigns.

1. NexGen’s failure at any time to require strict performance by Customer of any of the provisions of this Agreement shall not waive NexGen’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.

1. This Agreement shall be governed by, and construed and enforced in accordance with, the law of the state of Mississippi, without reference to its conflict of laws provisions. Customer agrees that exclusive jurisdiction for any action or proceeding arising out of or related to this Agreement shall be the state courts of Monroe County, Mississippi or the United States District Court of the Northern District of Mississippi, Aberdeen Division.

1. Headings are provided for convenience only and shall not be resorted to for interpretation of this Agreement.

1. Any notices hereunder shall be in writing and addressed to the party to be notified at the address set forth below, and shall be deemed validly given (i) three (3) days following deposit in the U.S. certified mail (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 confirmed receipt of notice given by email or personal delivery:

To NexGen:                       NexGen Crane and Rigging, LLC
Attn:  Brent Thompson

                                    40005 Church Rd,

                                    Hamilton, MS 39746

                                    (662) 251-9482
brent@nexgencrane.com

To Customer:                          Such address of Customer set forth in the Quote.

or, as to each party, at such other address as shall be designated by such party in a written notice to the other party.

1. 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.

1. Assembly and Disassembly. The parties agree that any and all Equipment mobilization and/or demobilization costs including but not limited to: assembly, erection, reconfiguration, disassembly or other movement of the Equipment, were quoted by NexGen based on “Standard Activity”. Standard Activity means mobilization and demobilization during the following minimum weather conditions (i) ambient temperature in excess of twenty (20) degrees Fahrenheit; (ii) sustained winds (including gusts) less than twenty (20) miles per hour; (iii) no precipitation in the form of snow or ice; or (iv) minor precipitation in the form of rain (less than one (1) inch per twenty-four (24) hour period). Rates for Standard Activity apply eight (8) hours per day Monday through Friday (excluding holidays). Rates for mobilization and/or demobilization which do not fall within Standard Activity shall be provided to Customer prior to any such costs being incurred and the parties hereto shall cooperate in good faith to schedule such mobilization and/or demobilization on a cost efficient basis.

1. CUSTOMER AND NEXGEN EACH KNOWINGLY, UNCONDITIONALLY, AND IRREVOCABLY WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, IN RESPECT OF, ARISING OUT OF, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM (OR AS TO ANY THIRD PARTIES) WITH THIS AGREEMENT, ANY OTHER DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, THE CONDUCT THE PARTIES, OR THE TRANSACTIONS RELATED HERETO.

Version: 3.6.24