General Terms and Conditions
The Terms and Conditions established in this document (the "Terms") apply to (a) the lease of Units by the Customer from the Contractor and/or (b) the purchase of Services by the Customer from the Contractor, in each case, pursuant to that certain Master Lease & Services Agreement by and between the Customer and the Contractor (the "Master Agreement"). Capitalized terms used but not defined herein shall have the meaning set forth in the Master Agreement.
- CHANGE ORDERS. The Units to be leased or Services to be performed under any Work Order may only be amended upon mutual agreement between the parties hereto in a written change order signed by a duly authorized representative of each party hereto (the "Change Order"). The Customer hereby acknowledges and agrees that to the extent any such Change Order would result in an increase of the cost or time required for the performance by the Contractor hereunder, an equitable adjustment will be made with regards to the rents, fees and/or charges due and payable by the Customer and/or the time required for performance hereunder.
- DAMAGES; INDEMNITY. The Contractor shall not be liable for any damages, loss of profits, loss of or damage to property stored in or around the Units, loss of income, personal injury, death, or for any special, exemplary, punitive or incidental damages or other damages, direct or indirect, consequential or otherwise of the Customer or its agents or its invitees for any reason. Neither the Customer nor the Customer's insurer shall have any claim (direct or by way of subrogation) against the Contractor or the Contractor Related Parties (as defined below) for any loss or damage to any property resulting from any casualty. The Customer shall indemnify, hold harmless, defend and reimburse the Contractor, and its affiliates, subsidiaries, directors, officers, employees, and agents ("Contractor Related Parties") from and against all losses, damages, death, claims, demands, injuries, costs and attorney's fees arising directly or indirectly from (a) the use, operation, presence, delivery, removal or condition of the Units, (b) the loss of, damage to or destruction of the Units and/or the Contents, (c) any fine, liens, tax, penalty, towing, impound or other charges arising from the Customer's use of the Units, or (d) the Customer's breach of the Contract Documents, regardless of whether caused in whole or in part by the Contractor's negligence. The Customer releases any claim that the Contractor has the duties of a bailee or under "warehouseman" laws.
- LIMITATION OF LIABILITY. The Contractor shall not be liable to the Customer, its affiliates, or any third party for any damages in excess of amounts paid to the Contractor by the Customer hereunder in the twelve (12) months preceding the event giving rise to a claim.
- TERMINATION; REMEDIES. The Contractor may terminate the Contract Documents at any time and for any reason upon written notice to the Customer. Acceptance of partial payment shall not constitute a waiver of the Contractor's right to full payment. Any endorsements appearing on the Customer's checks shall not affect the Charges owed. The Contractor, the Customer and any of the Customer's agents or invitees waive any right to trial by jury for any cause of action brought against the Contractor or the Contractor Related Parties.
- Confidential Information. All non-public, confidential or proprietary information, data, documents, agreements, files and other materials of the Contractor, including, but not limited to, trade secrets, technology, business plans, projections, intellectual property of any kind, financial statements and information, investments, customer accounts, customer lists, customer contact information, employee information, product sources, products, price lists, advertising and marketing plans, methods of sales and business contracts, distribution and supplier channels, and any other information not available to the general public (collectively, "Confidential Information"), disclosed by the Contractor to the Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and/or leasing of Units and the Contract Documents are confidential, and shall not be disclosed or copied by the Customer without the prior written consent of the Contractor. The Customer agrees to use the Confidential Information only to make use of the Services and Units and, in the event of any breach of this Section 13 by the Customer, the Contractor shall have all rights and remedies available to it at law or in equity, including, but not limited to, the right and remedy to seek specific performance and/or temporary or permanent injunctive or other equitable relief (without any requirement to post any bond or other security therefor). Confidential Information does not include information that is (a) in the public domain, (b) known to the Customer at the time of disclosure, or (c) rightfully obtained by the Customer on a non-confidential basis from a third party.
- WAIVER. No waiver by the Contractor of any of the provisions of the applicable Contract Documents is effective unless explicitly set forth in writing and signed by the Contractor. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Contract Documents operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure; Customer's acts or omissions. The Contractor shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached the Contract Documents, for any failure or delay in fulfilling or performing any term of the Contract Documents when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemics, epidemics, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. In addition to the foregoing, if the Contractor's performance of its obligations under the Contract Documents is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, the Contractor shall not be deemed in breach of its obligations under the Contract Documents or otherwise liable for any costs, charges or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- CONTRACTOR ATTORNEY FEES. In the event that the Contractor institutes any legal suit, action or proceeding against the Customer to enforce the terms of the Contract Documents, the Contractor shall be entitled to receive from Customer in addition to all other damages to which it may be entitled, the costs incurred by the Contractor in conducting the suit, action or proceeding, including attorneys' fees and expenses and court costs.
- Further Assurances. The Customer agrees to execute and deliver such other documents and to take all such actions as the Contractor, its successors, assigns or other legal representatives may reasonably request to effect the terms of the Contract Documents and the execution and delivery of any and all documentation as may be required.
- Assignment. The Customer shall not assign any of its rights or delegate any of its obligations under the Contract Documents without the prior written consent of the Contractor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Customer of any of its obligations under the Contract Documents. The Contractor may assign, pledge or transfer the Contract Documents without the Customer's consent.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Contract Documents shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-party Beneficiaries. The Contract Documents are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Contract Documents. No warranty, representation, or any other undertaking in the Contract Documents shall inure to the benefit of any third party.
- Governing Law; Submission to Jurisdiction. The Contractor and the Customer shall be deemed to have entered into the Contract Documents in the State of Texas. All matters arising out of or relating to the Contract Documents shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction). Any legal suit, action or proceeding arising out of or relating to the Contract Documents or the transactions contemplated thereby shall be instituted in the courts of the State of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth above or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Survival. Provisions of the Agreement and the Applicable Terms & Conditions, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Agreement including, but not limited to (a) the Confidential Information, Submission to Jurisdiction, Compliance with Laws, Governing Law, Insurance, Indemnity and Survival provisions set forth in the Agreement; and (b) the Insurance provisions set forth in the Applicable Terms & Conditions.
- Severability. If any provision herein, or any remedy provided herein, shall be found invalid under any such applicable law, statute, or regulation, such provision shall be inapplicable and shall be deemed omitted, but the remaining provisions hereof, including all provisions regarding remedies, shall be given effect in accordance with the intent hereof.
- Amendment and Modification. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.