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Effective Date: March 2026
Master Lease and Services Agreement
Ironclad Environmental Solutions, Inc. ("Ironclad") hereby leases the Equipment (as defined in herein) and provides the Services (as defined herein) to the Customer (as defined in an Invoice, Rental Agreement, Rental Reservation, Rental Quote, Delivery Ticket, Well Ticket, Sales Orders, Invoices, Parts & Merchandise Sales Quotes, Parts & Merchandise Sales Orders, Parts & Merchandise Sales Invoices, Equipment Sale Quotes, Equipment Sale Reservations, Equipment Sale Invoices, Rental Equipment Exchange, or any other Work Order, as defined herein), and collectively with Ironclad, the "Parties") subject to the terms and conditions below.
By (i) providing a written or electronic signature, (ii) accepting delivery of the Equipment, (iii) attempting to or in any way use the Services of Ironclad, (iv) loading or storing material in the Equipment or (v) paying for any Equipment or Services of Ironclad, Customer shall be deemed to accept the terms and conditions set forth below, which constitutes a binding legal agreement with Ironclad (the "Master Lease and Services Agreement" or "MLSA", and collectively with an applicable Work Order, as defined herein, the "Agreement"). Please read these terms carefully and print a copy for your records. By any of the foregoing methods of acceptance, Customer further agrees that this MLSA shall apply to all Equipment currently on rent, and Services currently being provided, to Customer as of the date of such acceptance, regardless of when such rentals or Services commenced.
1. GENERAL TERMS AND CONDITIONS https://ironcladenvironmental.com/generalterms
(a) The Parties hereby agree that these Terms & Conditions (the "General Terms and Conditions" and collectively with the Rental Terms and Conditions, Non-Hazardous Waste Transportation Terms and Conditions, and the Hazardous Waste Transportation Terms and Conditions, the "Terms and Conditions") shall apply to this Agreement and each applicable Work Order (as defined herein) and are expressly incorporated into this Agreement and each applicable Work Order by this reference and made a part hereof and of each applicable Work Order.
(b) Equipment Rental Terms and Conditions. The Parties hereby agree that the Terms & Conditions available at https:// ironcladenvironmental.com/rentalterms (the "Rental Terms and Conditions") shall apply to the lease of the Equipment by the Customer and are expressly incorporated into this Agreement by this reference and made a part hereof.
(c) Non-Hazardous Waste Transportation Terms and Conditions. The Parties hereby agree that the Terms & Conditions available at https://ironcladenvironmental.com/transterms (the "Non-Hazardous Waste Transportation Terms and Conditions") shall apply to Ironclad's transportation of non-hazardous waste materials on behalf of the Customer and are expressly incorporated into this Agreement by this reference and made a part hereof.
(d) Hazardous Waste Transportation Terms and Conditions. The Parties hereby agree that the Terms & Conditions available at https://ironcladenvironmental.com/haztrans (the "Hazardous Waste Transportation Terms and Conditions") shall apply to Ironclad's transportation of hazardous waste materials on behalf of the Customer and are expressly incorporated into this Agreement by this reference and made a part hereof.
e) Any work order, purchase order, rental agreement, rental reservation, rental quote, well ticket, delivery ticket, or other agreement or document submitted by the Customer or provided by Ironclad for the lease of Equipment and/or receipt of Services, together with any attachments and exhibits, specifications, drawings, designs, notes, instructions and other information, whether physically attached or incorporated by reference (collectively, a "Work Order"), shall be made expressly subject to this MLSA. This MLSA, together with any applicable Work Order, constitutes the agreement between the Customer and Ironclad for the lease of the Equipment and/or the performance of the Services (collectively, the "Work"). In the event of any conflict or inconsistency among the documents of the Agreement or any other documents between the Parties, the order of precedence set forth in the Order of Precedence section of these General Terms and Conditions shall apply.
2. CHANGES TO TERMS AND CONDITIONS.
Ironclad reserves the right to, at any time and from time to time, in Ironclad's sole and absolute discretion, amend, modify, supplement, or replace any or all of the Terms and Conditions. Notice of any such amendments shall be deemed given upon Ironclad's posting of the updated Terms and Conditions at the applicable URL(s) set forth in Section 1, and Ironclad shall have no obligation to provide direct notice to Customer of any such amendments. Customer's continued use of any Equipment or Services, or Customer's submission of any Work Order, after the posting of amended Terms and Conditions shall constitute Customer's acceptance of and agreement to such amended Terms and Conditions. For ongoing rentals or Services, any amended Terms and Conditions shall apply upon the earlier of: (a) a new Work Order, or (b) thirty (30) days after the effective date stated on such amended Terms and Conditions as posted online. For the avoidance of doubt, Customer's execution or submission of any new Work Order shall constitute Customer's acceptance of the then-current Terms and Conditions, and such acceptance shall apply not only to the transaction covered by such new Work Order, but also to all Equipment then currently on rent to Customer and all Services then currently being provided to Customer by Ironclad, regardless of when such rentals or Services commenced. Customer is solely responsible for periodically reviewing the Terms and Conditions at the applicable URL(s) to ensure awareness of any amendments, and Customer's failure to review the Terms and Conditions shall not excuse Customer's obligation to comply with the then-current Terms and Conditions.
3. WAIVER.
No waiver by Ironclad of any of the provisions of the applicable Agreement is effective unless explicitly set forth in writing and signed by Ironclad. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement 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.
4. FURTHER ASSURANCES.
The Customer agrees to execute and deliver such other documents and to take such actions as Ironclad, its successors, assigns or other legal representatives may reasonably request to effect the terms of the Agreement and the execution and delivery of any and all documentation as may be required.
5. ASSIGNMENT.
The Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Ironclad. 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 Agreement. Ironclad may assign, pledge or transfer the Agreement without the Customer's consent.
6. RELATIONSHIP OF THE PARTIES.
The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement 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.
7. NO THIRD-PARTY BENEFICIARIES.
The Agreement is for the sole benefit of the Parties 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 Agreement. No warranty, representation, or any other undertaking in the Agreement shall inure to the benefit of any third party.
8. AMENDMENT AND MODIFICATION.
The Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each Party.
9. PAYMENT TERMS.
The Customer shall be obligated to pay all charges set forth in any invoices delivered to the Customer under the Agreement (the "Charges") per the terms of such invoice. Unless otherwise specified on the applicable invoice, payment terms shall be net 30 days from the date of the invoice. Interest shall be charged at a rate of up to two percent (2%) per month, or portions thereof, from the date of the invoice, on all amounts not paid when due. Acceptance of partial payment shall not constitute a waiver of Ironclad's right to full payment. Any endorsements appearing on the Customer's checks shall not affect the Charges owed. Customer shall not withhold, offset, or deduct any amounts from payments owed to Ironclad based on any claimed damages, disputes, counterclaims, or any other reason whatsoever. All payments shall be made in full when due regardless of any pending claims or disputes between the Parties.
10. SURCHARGES AND FEES.
In addition to Charges, Customer shall pay all applicable surcharges and fees imposed by Ironclad, including but not limited to:
(a) Fuel Surcharge. Ironclad reserves the right to impose a Fuel Surcharge ("FSC") on any Charges to offset fuel costs incurred in connection with the delivery, pickup, or transportation of Equipment or the performance of Services. The FSC rate shall be determined by Ironclad in its sole discretion and may be adjusted from time to time without prior notice to Customer. The FSC is not a government-mandated charge and is used at Ironclad's discretion to recover fuel-related costs.
(b) Environmental Recovery Fee. Unless otherwise agreed to in writing, an Environmental Recovery Fee ("ERF") will be due on all invoices. The ERF will be charged as a percentage of the Customer's overall rental rates, service charges, and any other negotiated pricing, excluding taxes. The rate at which the ERF is charged is subject to change from time to time, at the sole discretion of Ironclad, due to the costs that the ERF is intended to cover. The ERF is not a government-mandated or imposed fee, surcharge or tax charged to Ironclad or its customers.
(c) Credit Card Surcharge. Where permitted by applicable law, Ironclad reserves the right to impose a surcharge on payments made by credit card. Any such surcharge shall not exceed Ironclad's merchant discount rate for credit card transactions. The credit card surcharge is not a government-mandated charge and is intended to offset Ironclad's costs associated with processing credit card payments. Customer may avoid the credit card surcharge by paying ACH, or wire transfer.
(d) Security Deposit. Ironclad reserves the right, in its sole discretion, to require Customer to provide a security deposit in such amount as Ironclad may determine. In addition to securing the payment of Charges hereunder, Customer agrees that any security deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms of this Agreement to be performed by Customer. In the event of any breach by Customer, the deposit will be credited against any damages, costs, expenses, cleaning costs, disposal costs, decontamination expenses, or administrative fees incurred by Ironclad as a result of the breach. The security deposit does not limit Customer's liability, and Customer shall remain liable for all amounts owed to Ironclad that exceed the security deposit. Any refund of the security deposit shall be made only after all Equipment has been returned to Ironclad in acceptable condition as determined by Ironclad in its sole discretion and all obligations under this Agreement have been satisfied.
11. DAMAGES; INDEMNITY.
IRONCLAD SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSS OF PROFITS, LOSS OF OR DAMAGE TO PROPERTY STORED IN OR AROUND THE EQUIPMENT, 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 IRONCLAD OR IRONCLAD 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 IRONCLAD, AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS ("IRONCLAD 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 EQUIPMENT, (B) THE LOSS OF, DAMAGE TO, OR DESTRUCTION OF THE EQUIPMENT AND/OR ANY MATERIAL PLACED OR STORED BY CUSTOMER IN THE EQUIPMENT (THE "CONTENTS"), (C) ANY FINE, LIENS, TAX, PENALTY, TOWING, IMPOUND OR OTHER CHARGES ARISING FROM THE CUSTOMER'S USE OF THE EQUIPMENT, OR (D) THE CUSTOMER'S BREACH OF THE AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY IRONCLAD'S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT ANY INDEMNIFICATION OBLIGATION HEREIN IS PROHIBITED OR LIMITED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO LA REV. STAT. 9:2780 OR SIMILAR ANTI-INDEMNITY STATUTES, SUCH OBLIGATION SHALL BE REFORMED TO PROVIDE THE MAXIMUM INDEMNIFICATION PERMITTED UNDER APPLICABLE LAW. THE INDEMNIFICATION OBLIGATION OF CUSTOMER AS SET FORTH ABOVE SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON AMOUNT OR TYPE OF DAMAGES, COMPENSATION, OR BENEFITS PAYABLE BY OR FOR CUSTOMER UNDER WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER EMPLOYEE BENEFIT ACTS. THIS INDEMNIFICATION PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. THE CUSTOMER RELEASES ANY CLAIM THAT IRONCLAD HAS THE DUTIES OF A BAILEE OR UNDER "WAREHOUSEMAN" LAWS.
12. LIMITATION OF LIABILITY.
IRONCLAD SHALL NOT BE LIABLE TO THE CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF AMOUNTS PAID OR PAYABLE TO IRONCLAD BY THE CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM. IN NO EVENT SHALL IRONCLAD BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, ENVIRONMENTAL REMEDIATION COSTS, CLEANUP EXPENSES, THIRD-PARTY CLAIMS, COSTS OF SUBSTITUTE EQUIPMENT OR SERVICES, OR ANY OTHER CONSEQUENTIAL DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND WHETHER OR NOT IRONCLAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. TERMINATION.
Subject to the obligations contained in the relevant Terms & Conditions, each Party may terminate the Agreement at any time and for any reason upon written notice to the other Party.
14. DEFAULT AND INSOLVENCY.
Customer shall be deemed in default if: (a) Customer fails to pay any amount when due hereunder; (b) Customer fails to perform, observe or fully comply with any provision of this Agreement; (c) Customer becomes "Insolvent" as defined herein; (d) Ironclad reasonably anticipates that Customer may become Insolvent; (e) any representation or warranty made by Customer proves to have been false or misleading when made; or (f) Customer's creditworthiness materially deteriorates in Ironclad's sole judgment. Customer shall be considered "Insolvent" if Customer shall generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; make an assignment for the benefit of creditors, or petition or apply to any court or tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made; or take any action indicating its consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its properties. Upon the occurrence of any event of default, Ironclad may, in its sole discretion and without notice, do any one or more of the following: (i) terminate any and all Rental Terms immediately; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (iii) suspend performance of all Services and refuse to deliver additional Equipment; (iv) cause Ironclad's employees or agents, with notice but without legal process, to enter upon Customer's property and take all action necessary to retake and repossess the Equipment; (v) remove any Contents from Equipment without regard to their protection and without taking title to or ownership of such Contents; or (vi) pursue any other remedies available at law or in equity. Customer hereby consents to such entry, retaking and repossession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by Ironclad in retaking and repossessing the Equipment, including reasonable attorney's fees and collection costs. Customer waives any security or bond posting requirement prior to any replevin or similar process. Customer and any trustee, receiver, custodian or estate representative shall remain solely responsible for all Contents and their proper characterization, disposal, and all associated costs, and Customer shall remain the generator of any Contents under RCRA, CERCLA and all other applicable environmental laws regardless of any insolvency proceeding. Ironclad's removal of Contents shall be performed at Customer's sole expense, risk, liability and direction, and Customer shall indemnify Ironclad for any environmental liability, cleanup costs, fines, penalties or other damages arising from or related to any Contents or Customer's insolvency. The remedies set forth in this Section are cumulative and in addition to any other remedies available to Ironclad.
15. CONFIDENTIAL INFORMATION.
All non-public, confidential or proprietary information, data, documents, and other materials of Ironclad, including, but not limited to, pricing and rate information, equipment specifications and proprietary designs, customer lists, customer contact information, waste handling and disposal procedures, safety protocols, and any other information not available to the general public (collectively, "Confidential Information"), disclosed by Ironclad 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 Equipment and the Agreement are confidential, and shall not be disclosed or copied by the Customer without the prior written consent of Ironclad. The Customer agrees to use the Confidential Information only to make use of the Services and Equipment and, in the event of any breach of this Confidentiality provision by the Customer, Ironclad 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.
16. FORCE MAJEURE; CUSTOMER'S ACTS OR OMISSIONS.
Ironclad shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Ironclad 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 telecommunications breakdown or power outage. In addition to the foregoing, if Ironclad's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, Ironclad shall not be deemed in breach of its obligations under the Agreement 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.
17. IRONCLAD ATTORNEY FEES.
In the event that Ironclad institutes any legal suit, action or proceeding against the Customer to enforce the terms of the Agreement, Ironclad shall be entitled to receive from Customer in addition to all other damages to which it may be entitled, the costs incurred by Ironclad in conducting the suit, action or proceeding, including, but not limited to, attorneys' fees and expenses and court costs.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION.
Ironclad and the Customer shall be deemed to have entered into the Agreement in the State of Texas. All matters arising out of or relating to the Agreement 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 Agreement or the transactions contemplated thereby shall be instituted in the state or federal courts sitting in Harris County, 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.
19. JURY WAIVER.
Ironclad, the Customer and any of the Customer's agents or invitees knowingly, voluntarily, and irrevocably waive any right to trial by jury for any and all causes of action, claims, counterclaims, disputes, or controversies of any kind or nature whatsoever brought against or by Ironclad or Ironclad Related Parties, whether arising under contract, tort, statute, common law, equity, or any other legal or equitable theory, and whether arising out of or relating to the Agreement or the Parties' relationship. The Parties acknowledge and agree that this jury trial waiver is a material term of the Agreement and that each party has had the opportunity to consult with legal counsel regarding this waiver. The Parties expressly acknowledge that they are waiving their constitutional right to a jury trial and agree that any such disputes shall be decided by a judge sitting without a jury. This waiver is mutual and applies equally to all Parties, their successors, assigns, and legal representatives.
20. CLASS ACTION WAIVER.
Ironclad, the Customer and any of the Customer's agents or invitees waive any right to participate in or receive benefits from any class action, collective action, representative action, or any other proceeding in which any party acts or proposes to act in a representative capacity on behalf of others. Any claims, disputes, or controversies arising out of or relating to the Agreement must be brought and resolved on an individual basis only, whether through litigation or arbitration. The Customer agrees that it will not seek to consolidate its individual claims with those of any other person or entity, nor participate as a plaintiff or class member in any purported class, collective, or representative proceeding against Ironclad or Ironclad Related Parties. This waiver shall apply regardless of whether the dispute resolution mechanism is arbitration, litigation in court, or any other forum.
21. NOTICES.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be delivered to the Customer at the Customer's delivery address, or to such other address that may be designated by the Customer in writing. All notices to Ironclad shall be sent to:
Ironclad Environmental Solutions, Inc.
4888 Loop Central Drive
Suite 440
Houston, TX 77081
Attn: General Counsel
Email: LegalNotices@IroncladEnvironmental.com
All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid), with a copy via email. 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.
22. SURVIVAL.
Provisions of the Agreement and the applicable Terms & Conditions, which by their nature should apply beyond the term of this Agreement, will remain in force after any termination or expiration of the Agreement including, but not limited to those governing Confidential Information, Submission to Jurisdiction, Compliance with Laws, Governing Law, Insurance, and Indemnity.
23. SEVERABILITY.
If any provision herein, or any remedy provided herein, shall be found invalid under any 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.
24. ORDER OF PRECEDENCE.
(a) Document Hierarchy. In the event of any conflict, inconsistency, or ambiguity between or among the Agreement documents or any other documents, writings, or communications between the Parties, the following order of precedence shall apply, with documents higher in the hierarchy controlling over those lower in the hierarchy:
(i) Any separate master agreement that has been duly executed by an authorized representative of Ironclad (a "Negotiated MSA"), but only to the extent of express conflicts between such Negotiated MSA and this Master Lease and Services Agreement;
(ii) The applicable specialized Terms and Conditions for the specific subject matter of the dispute: (A) the Equipment Rental Terms and Conditions for matters relating to the lease, use, maintenance, return, or condition of Equipment; (B) the Non-Hazardous Transportation Terms and Conditions for matters relating to the transportation of non-hazardous waste materials; and (C) the Hazardous Transportation Terms and Conditions for matters relating to the transportation of hazardous substances;
(iii) The General Terms and Conditions;
(iv) Work Orders; and
(v) All other documents, communications, or understandings between the Parties.
(b) Rejection of Customer Terms. Any and all terms, conditions, provisions, or requirements contained in Customer's purchase orders, work orders, invoices, acknowledgments, or any other documents or communications submitted by Customer (collectively, "Customer Terms") are hereby expressly rejected by Ironclad and shall have no force or effect, regardless of whether Ironclad fails to object to such Customer Terms. Customer Terms are specifically rejected even if they purport to: (i) modify, supplement, or supersede this Agreement; (ii) require Ironclad's express rejection of such terms; (iii) create additional obligations for Ironclad; or (iv) limit Ironclad's rights under this Agreement. For the avoidance of doubt, Customer Terms shall only be given effect to the extent they are adopted in compliance with the Amendment and Modification section of this Agreement.
(c) Acknowledgment vs. Acceptance. If Ironclad signs, acknowledges, or otherwise accepts delivery of any Customer purchase order or similar document containing Customer Terms, such signature or acknowledgment shall be solely for the purpose of acknowledging the specific work, services, or equipment described therein and shall not constitute acceptance of any Customer Terms. It is the express intent of the Parties that this Master Lease and Services Agreement and the incorporated Terms and Conditions shall govern all transactions, regardless of any signature or acknowledgment by Ironclad on Customer documents.
(d) Entire Agreement. The Agreement constitutes the entire and exclusive agreement between the Parties for the lease of the Equipment and/or the performance of the Services and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the performance of the Work, except as expressly provided in subsection (a)(i) above with respect to Negotiated MSAs.
(e) Subject Matter Precedence. Where multiple specialized Terms and Conditions could potentially apply to the same transaction or dispute, the Terms and Conditions most directly applicable to the specific activity giving rise to the dispute shall govern. If there is any uncertainty or ambiguity as to which Terms and Conditions apply, Ironclad shall have the sole and absolute discretion to determine the applicable Terms and Conditions.
(f) Gap-Filling Hierarchy. To the extent that any document higher in the hierarchy set forth in subsection (a) above is silent on a particular matter, the next document in the hierarchy shall govern such matter. The General Terms and Conditions shall serve as the baseline terms applicable to all transactions and shall fill any gaps not expressly addressed by higher-priority documents or specialized Terms and Conditions. Any Negotiated MSA shall be supplemented by this Agreement with respect to any matters not expressly addressed in such Negotiated MSA.
(g) Resolution of Ambiguities. Any ambiguity, uncertainty, or dispute regarding the interpretation, application, or precedence of any Agreement document shall be resolved in favor of Ironclad and in the manner most protective of Ironclad's interests. Where multiple reasonable interpretations exist, Ironclad shall have the sole discretion to determine the controlling interpretation.
Equipment Rental Terms and Conditions
Except where explicitly noted, in the event of a conflict between any other Contract Document and these Equipment Rental Terms and Conditions, these Equipment Rental Terms and Conditions shall apply to the rental of Ironclad's Equipment by Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the General Terms and Conditions.
25. RENTAL TERM
Each piece of Equipment shall have its own "Rental Term." The Rental Term for any piece of Equipment shall commence upon the earliest of (a) Customer's receipt of such Equipment, (b) Customer's taking possession of such Equipment, or (c) the loading or storing of any materials or Contents in such Equipment. The Rental Term for each piece of Equipment shall continue until such Equipment has been returned to an Ironclad location and Ironclad has confirmed that such Equipment meets all return requirements set forth in this Agreement, including that the Equipment is empty, clean, undamaged, and otherwise in acceptable condition for re-rental. For the avoidance of doubt, Customer's request for pickup, call-off notice, or other communication expressing intent to return Equipment shall not terminate the Rental Term for any piece of Equipment; the Rental Term for each piece of Equipment shall end only upon Ironclad's actual receipt and acceptance of such returned Equipment. Charges for each piece of Equipment shall continue to accrue throughout its respective Rental Term.
26. CUSTOMER SITE OBLIGATIONS
Customer is solely responsible for ensuring that all sites where Equipment is to be delivered, placed, or removed are safe, legal, and accessible for Ironclad's operations. Customer shall provide adequate site conditions including level ground, sufficient space for Equipment placement and maneuvering, clear vehicular access routes, and proper foundations or surfaces capable of supporting the Equipment's weight and operational requirements. Customer shall obtain all permits, licenses, or approvals required for Equipment placement on the site. Ironclad may, in its sole discretion, refuse to deliver, place, or remove Equipment if Ironclad determines the site is unsafe, inaccessible, or inadequate, and shall have no liability to Customer for any delays, damages, or other consequences arising from such refusal. Customer shall be responsible for all increased costs incurred by Ironclad as a result of inadequate site conditions, including but not limited to waiting time, return trips, additional personnel or equipment required, and demurrage. Ironclad shall not be responsible for any damage to Customer's site, ground, pavement, underground utilities, landscaping, structures, or other property that may occur during Equipment delivery, placement, or removal operations. If Equipment delivery cannot be completed due to inadequate site conditions, Customer shall pay Ironclad a failed delivery charge equal to the delivery fee as set forth in the applicable Work Order.
27. INSPECTIONS AND ACCEPTANCE OF THE EQUIPMENT.
The Customer's receipt and possession of the Equipment constitutes the Customer's acknowledgment that it has inspected the Equipment and accepts the Equipment (and ancillary parts and materials, e.g. pipes, hoses, gaskets, liners, etc.) in good condition, working order and repair, free from defects, and as adequate, sufficient, and proper for the purposes for which they are intended. Unless the Customer notifies Ironclad to the contrary, in writing, within three (3) days of the Customer's receipt of the Equipment, the Customer's use of the Equipment constitutes a full and complete acceptance of the Terms and Conditions of the Agreement. If the Customer receives any of the Equipment from a carrier in a damaged condition, or with any parts missing, the Customer will obtain from carrier written acknowledgment of same. The Customer's obligation to pay all Charges shall not be affected by the Customer's inability to use the Equipment for any reason whatsoever.
28. OPERATION OF EQUIPMENT.
The Customer shall use the equipment rented to Customer by Ironclad (the "Equipment") only for the purposes for which they are intended. The Customer shall maintain the Equipment in good condition. The Customer is responsible to inspect the Equipment to ensure it is in good working condition. The Customer warrants that it and its employees and agents have been properly trained, and, if applicable, licensed, in the safe and proper operation and intended use of the Equipment, including for Customer's particular use, and if applicable, it will insure that all fluid levels (water, oil, etc.) are properly maintained and that tires are inflated to recommended pressures at all times when the Equipment is in use. CUSTOMER AGREES TO IMMEDIATELY NOTIFY IRONCLAD ABOUT ANY ACCIDENTS INVOLVING THE EQUIPMENT OR DAMAGE TO THE EQUIPMENT FROM ANY CAUSE WHATSOEVER, AND TO PRESERVE THE EQUIPMENT AND THE ACCIDENT AREA UNTIL SUCH TIME AS IRONCLAD HAS COMPLETED ITS INVESTIGATION.
In the event Customer is unable or unsure how to perform the obligations in this Section, Customer acknowledges that it is responsible for requesting the relevant information from Ironclad, and any claimed ignorance shall not excuse any obligations hereunder.
29. REPAIRS AND RISK OF LOSS.
Customer is solely responsible for any loss, theft and/or damage to the Equipment while in its possession or care, except for ordinary wear and tear, that does not affect the structural integrity, functionality, or value of the Equipment. For the avoidance of doubt, ordinary wear and tear does not include, and Customer remains liable for, inter alia: (a) any corrosion, pitting, deterioration, or damage of any kind caused by the Contents placed in the Equipment, or environmental exposure (including weathering, expansion and/or contraction) ; (b) damage to, inter alia, tires, wheels, wiring, lights, bumpers, locks, pipes, valves, fittings, openings, or connections; (c) damage from improper handling, loading, unloading, or transport by Customer or its agents; (d) repainting or refinishing, including painting over graffiti, Customer markings, or other cosmetic damage, (e) damage to rolling mechanisms, and (f) any damage requiring repair, or refurbishment beyond routine maintenance. Without limiting the foregoing, Customer is solely responsible for any losses or damage to Equipment that occurs while being rigged, hoisted, or transported by the Customer or its subcontractor or agents. Customer shall not make, or allow anyone else to make, any alteration to the Equipment without Ironclad's written consent. If the Equipment is returned in a damaged or inoperable condition, as determined by Ironclad in its sole discretion, in addition to Customer's responsibility to pay for any repairs, Customer shall pay to Ironclad the prevailing rental rate for periods during which the Equipment shall remain unavailable for rent due to such damage. If the Equipment cannot be repaired to the same condition as when first delivered to Customer or the Equipment is lost, stolen, or not returned to Ironclad, Customer shall pay Ironclad the replacement cost for comparable Equipment in new and unused condition, plus applicable taxes, and a 20% administrative fee.
30. COMPLIANCE WITH LAWS; TAXES.
The Customer shall be responsible for compliance with all laws, rules, regulations, local ordinances and orders relating to the operation and placement of the Equipment (the "Laws"), and at all times, Ironclad shall be entitled to rely on Customer's compliance. Customer shall pay all (1) fines, penalties, whether monetary or other, resulting from the Customer's use or placement of the Equipment in violation of the Laws, and (2) legal assessments, taxes, sales or use taxes or any other public charges, either local, municipal, state or federal, which may be levied on the Equipment during the Rental Term.
31. LIENS; LOCATION OF EQUIPMENT; INSPECTION.
The Customer shall, on Ironclad's request, give Ironclad the exact location of all Equipment covered by the Agreement and shall immediately notify Ironclad if anyone attempts to levy upon the Equipment, or if the Equipment becomes liable for seizure, and the Customer shall indemnify Ironclad against all loss and damages caused by any such action. The Customer shall not file or grant a voluntary lien or security interest in the Equipment and the Customer shall not suffer an involuntary lien on the Equipment. Upon reasonable notice, Ironclad shall have the right, at all times, of entering any job, building, or location where the Equipment is being used, for the purpose of inspection Ironclad shall be entitled to immediately remove the Equipment, at Customer's expense, if the Equipment is being overloaded or taxed beyond capacity, if the Equipment is not being properly maintained, or if the Equipment is in any manner abused or neglected.
32. EQUIPMENT RETURN; REMOVAL.
Customer shall not transport or relocate Equipment without Ironclad's prior written consent. Unless otherwise agreed in writing, Ironclad shall retrieve all Equipment from Customer's site. The Customer must call Ironclad to schedule the Equipment's return or removal and shall provide Ironclad at least ten (10) business days' advance notice to schedule pickup of Equipment. Ironclad will attempt to schedule removal of the Equipment as requested by the Customer but rental Charges will continue throughout the Rental Term until the removal of the Equipment is completed; provided, however, that rental Charges shall cease five (5) business days after Customer's pickup request if the delay in removal is solely due to Ironclad's scheduling or availability and the Equipment is empty, clean, and otherwise ready for pickup in accordance with this Agreement. For the avoidance of doubt, all other Customer obligations under this Agreement shall remain in full force and effect until the Rental Term has ended.
33. EQUIPMENT RETURN; CANCELLED TRIP.
If removal of the Equipment cannot be accomplished due to any reason, including safety concerns or potential damage, the Equipment not being ready for pickup (e.g. it has Contents, it has not been cleaned, it is in an area inaccessible to Ironclad's driver or agent, no-show by a Customer agent, etc.), or a change in the site condition prevents removal, Ironclad's driver or agent may refuse to remove the Equipment and Customer shall pay Ironclad a cancelled trip charge equal to the pickup fee as set forth in the applicable Work Order.
34. EQUIPMENT RETURN; CLEANING.
Unless otherwise agreed to by the Parties in writing, the Customer shall be responsible for cleaning the Equipment prior to its return to Ironclad, including removal of all contents, hazardous materials, liquids, wastes, residues, and sediments such that the Equipment can be safely transported and re-rented without any cleaning, decontamination, or special handling by Ironclad. Equipment must be returned in a condition that complies with all DOT transportation requirements and does not require Ironclad to manifest, characterize, or dispose of any remaining materials. Failure to clean the Equipment as required herein, shall constitute a material breach, and entitle Ironclad, in its sole discretion, to elect to either (1) reject return of the Equipment; or (2) have the Equipment cleaned and any contents, hazardous materials, liquids or wastes disposed of by a licensed third-party vendor at the Customer's sole expense and responsibility. In both events, Customer shall be obligated to pay Ironclad additional rental and transportation Charges until returned clean, plus a 20% administrative fee.
35. INSPECTION UPON RETURN.
Upon return of the Equipment to an Ironclad location, Ironclad shall inspect the Equipment for damage, contamination, cleaning deficiencies, and any failure to meet return requirements set forth in this Agreement. Customer's obligations for damage, cleaning costs, disposal costs, decontamination expenses, and any other charges arising from the condition of the Equipment or Contents shall survive the return of the Equipment and shall become due and payable immediately upon Ironclad's written notice to Customer of such charges. Ironclad's acceptance of returned Equipment shall not constitute a waiver of any claims for damages, costs, or charges that may be discovered during or after inspection. Customer acknowledges that certain damage, contamination, or cleaning deficiencies may not be immediately apparent upon return and agrees that Ironclad's post-return inspection rights are necessary to properly assess the condition of the Equipment.
36. OBLIGATIONS UPON TERMINATION; REMEDIES.
In the event of Customer's material breach, Ironclad may, in its sole discretion and in addition to all other remedies available, elect to transfer title to the Equipment to Customer. Upon such election by Ironclad, Customer shall immediately pay Ironclad the replacement cost for comparable Equipment, in new and unused condition, plus applicable taxes, and a 20% administrative fee (the "Replacement Cost"), plus all outstanding Charges owed. Rental Charges shall continue to accrue until Customer has paid the Replacement Cost in full. Upon Ironclad's election to transfer title to Customer, title to the Equipment shall immediately transfer (either actively or constructively) to Customer, and Customer shall assume all responsibility and liability for the Equipment and any Contents therein, including anything necessary to remain in compliance with DOT, state and local regulations, and insurance obligations.
(a) The Parties agree that Ironclad's written notice of title transfer pursuant to this Section shall constitute a valid and binding bill of sale for the Equipment, regardless of whether Customer executes a separate bill of sale document. Customer's receipt of such notice, whether or not accompanied by payment, shall constitute Customer's acceptance of title to the Equipment and all associated responsibilities, and no further documentation or signature by Customer shall be required for the transfer of title to be effective and binding upon Customer.
(b) If Customer fails to promptly return the Equipment, Ironclad may enter any premises where the Equipment is located, repossess the Equipment, remove any locks on the Customer's property or the Equipment, remove the Contents without regard to their protection (but Ironclad shall never take title to or ownership of such Contents) or pursue any other remedy available. Except where prohibited by law, the Customer irrevocably grants Ironclad unrestricted access to the Customer's property and permission to enter day or night, remove locks, disconnect attached utilities and repossess the Equipment. If Equipment is repossessed, Ironclad is approved in advance to remove the Contents consistent with the provisions of this Agreement or exercise its lien and hold the Contents as bailee only (without taking title to or ownership of the Contents), and the Customer shall have no claim against Ironclad for damage to the Contents. The Customer releases and agrees to indemnify Ironclad and Ironclad Related Parties from any claims for trespass, conversion or damages of any nature arising from such repossession of the Equipment. Repossession of Equipment shall not relieve the Customer of the Customer's obligation to pay Charges owed under the Agreement. No remedy referred to is exclusive, and each shall be in addition to any remedy referred to in the Agreement or otherwise available to Ironclad. If Ironclad seeks to recover or repossess the Equipment by means of "writ of replevin" or similar method, the Customer waives any security or bond posting requirement prior to such process. The Parties agree to exclusively abide by the access, lien and lien sale procedures herein and waive to the fullest extent possible any legal requirements for other access, lien, notice and/or sale procedures.
(c) Notwithstanding any provision herein to the contrary, as between Ironclad and Customer, Ironclad shall never acquire title to, ownership of, or generator status with respect to any Contents in or on the Equipment, regardless of whether the Equipment is repossessed, abandoned, or title is transferred to Customer. All Contents shall remain the sole property and responsibility of Customer at all times. Customer acknowledges that Ironclad's removal, storage, or disposal of Contents is performed solely as an accommodation to Customer and at Customer's direction and expense, and such actions shall not be construed as Ironclad taking possession, ownership, or generator status with respect to such Contents and Customer shall hold Ironclad harmless and agrees to fully indemnify Ironclad pursuant to the indemnification terms of this Agreement.
37. NO SUBLETTING OR ASSIGNMENT.
Without the express written consent of Ironclad, no Equipment shall be sublet, assigned, loaned to other parties, or removed from the location specified on any Work Order, or removed from the location specified at the time of delivery of the Equipment.
38. TITLE.
Except as noted herein, title to the Equipment shall at all times remain with Ironclad. The Equipment shall remain, "personal property", notwithstanding any use of the Equipment, or a part of the Equipment, on real property or improvements. The Equipment shall not be attached or affixed to real property.
39. INSURANCE.
Customer shall maintain commercial general liability insurance, including a waiver of subrogation, with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including coverage for products and completed operations. Customer shall also maintain umbrella/excess liability insurance with limits of not less than $5,000,000 per occurrence and aggregate. Property insurance covering the rented Equipment is also required. Such coverage shall name Ironclad as an additional insured and cover all losses and damages. Such coverage shall be endorsed to provide coverage on a direct and primary basis over other valid and collectible insurance. Customer will provide Ironclad with certificates of insurance evidencing the current coverage in types and amounts and from companies satisfactory to Ironclad. These insurance requirements are intended to cover any indemnity obligations Customer may have to Ironclad under this contract. Customer hereby assigns to Ironclad all proceeds from such insurance, conveys an equitable lien in said proceeds, and directs any insurer directly to pay such proceeds to Ironclad and authorizes Ironclad to endorse any drafts or checks for such proceeds. Neither Customer nor its insurer shall have any claim (direct or subrogation) against Ironclad. Customer will provide prior to delivery or upon request a Certificate of Insurance naming Ironclad as loss payee and additional insured with coverage equal to the Equipment replacement cost. The policy shall be acceptable to Ironclad in its discretion and provide for 30 days' notice to Ironclad prior to cancellation or modification.
40. WARRANTY DISCLAIMER.
The Customer leases the Equipment "as is." IRONCLAD MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, PERFORMANCE, QUALITY, DESIGN, CONDITION, SAFETY OR SECURITY OF THE EQUIPMENT OR OF IRONCLAD'S FACILITIES OR COMPLIANCE WITH THE LAW AND THE CUSTOMER AGREES THAT THE CUSTOMER HAS SOLELY DETERMINED THAT THE EQUIPMENT ARE SUITABLE FOR THE CUSTOMER'S INTENDED USE.
41. LIMITATION OF LIABILITY.
If, due to Ironclad's fault, any Equipment fails and results in any spill of materials, liquids or wastes placed into the Equipment during the rental period, Ironclad will replace the Equipment at no additional cost to the Customer; provided, however, that Ironclad shall only be responsible for replacing such Equipment and shall in no event be responsible for any additional losses beyond the replacement costs for such Equipment, including any environmental, remediation, indirect, or cleanup costs.
42. MASTER LESSOR.
The Customer acknowledges that the Equipment listed in the Work Orders may be leased by Ironclad from a third party (the "Master Lessor") pursuant to a Master Lessor agreement (the "Master Lease"), and that notwithstanding anything to the contrary contained in the Agreement, the Customer's interest in the Agreement and the Equipment shall be subordinate to the rights of the Master Lessor, and its successors and assigns, under the Master Lease, including but not limited to the right of the Master Lessor to take possession of the Equipment upon default of Ironclad under the Master Lease.
Notwithstanding anything to the contrary contained in the Agreement, the Customer waives, and agrees that it will not assert against the Master Lessor, or its successors or assigns, any defense, set-off, recoupment, claim or counterclaim which the Customer may at any time have against Ironclad for any reason whatsoever.
43. RENTAL RATES.
Rental rates and any other pricing for the Equipment will be reviewed by the Parties on each anniversary date of the Rental Agreement. Notwithstanding anything herein to the contrary, Ironclad reserves the right to increase rental rates by at least five percent (5%) once per calendar year. Unless the rental invoices specify otherwise, Customer shall pay the rental amount in accordance with the terms specified in the General Terms and Conditions, together with charges for all services furnished by and all damages and sums due to Ironclad under this Agreement.
Non-Hazardous Transportation Terms and Conditions
44.
The following terms shall apply to Ironclad's transportation of Waste Materials ("Non-Hazardous Transportation Services" and collectively with Hazardous Transportation Services, "Services") provided on behalf of Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the Master Agreement. Except where explicitly noted, in the event of a conflict between any other Contract Document and these Non-Hazardous Transportation Terms and Conditions, these Non-Hazardous Terms and Conditions shall apply to the Non-Hazardous Transportation Services provided by Ironclad to Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the General Terms and Conditions.
45. TRANSPORTATION SERVICES; WASTE MATERIALS.
Subject to the terms and conditions set forth herein and in the General Terms and Conditions, as may be requested in one or more Work Orders, Ironclad shall provide transportation services related to non-hazardous waste materials ("Waste Materials") generated by the Customer ("Non-Hazardous Transportation Services"). At or prior to the scheduled time for pick-up, Customer shall provide a true, accurate and complete description of the Waste Materials to be retrieved by Ironclad as set forth in one or more waste profile sheets, material safety data sheets, waste characterization reports or other written descriptions or analyses (each a "Profile Sheet"). The generator of the Waste Materials will be identified by Customer on the applicable Profile Sheet, and Customer hereby represents to Ironclad that no Transportation Services will be performed by Ironclad until the applicable Profile Sheet has been signed by the generator of the Waste Materials. Customer acknowledges and agrees that Ironclad shall not, under any circumstances whatsoever, be identified as the generator of the Waste Materials or be expected to sign a Profile Sheet. Customer expressly acknowledges that Ironclad will not independently analyze or verify the Waste Materials but rather is relying exclusively on the Profile Sheet delivered incident to the transportation services, which Customer represents, warrants and covenants shall be true, accurate and complete to the best of its knowledge. Customer also warrants that any containers of Waste Materials retrieved by Ironclad will be marked, labeled, and otherwise in conformance with all applicable federal, state, and local laws and regulations. Ironclad shall have the right, but not the obligation to inspect, analyze and/or test any Waste Materials before performing the transportation services. Failure or refusal of Customer to provide Ironclad with access to any Waste Materials prior to commencement of the transportation services shall cause such Waste Materials to be deemed Nonconforming Waste (as defined below). Ironclad's exercise of, or failure to exercise, its right hereunder shall not operate to relieve Customer of its responsibility or liability under the Agreement or any Work Order issued thereunder.
46. NO TRANSPORTATION OF HAZARDOUS SUBSTANCES.
Except to the extent specified in writing, Customer acknowledges that Ironclad is not agreeing to transport any Hazardous Substances (as defined below) pursuant to the Agreement. "Hazardous Substances" means any substance, chemical, material or waste (a) which is regulated by any federal, state or local governmental authority because of its toxic, flammable, corrosive, reactive, carcinogenic, mutagenic, infectious, radioactive, or other hazardous property or because of its effect on the environment, natural resources or human health and safety, including, but not limited to, petroleum and petroleum products, asbestos-containing materials, polychlorinated biphenyls, lead and lead-based paint, radon, radioactive materials, flammables and explosives; and/or (b) which is designated, classified, or regulated as being a hazardous or toxic substance, material, pollutant, waste (or a similar such designation) under any federal, state or local law, regulation or ordinance, including under any Environmental Law such as the Comprehensive Environmental Response Compensation and Liability Act, as amended (42 U.S.C. §9601 et seq.), the Emergency Planning and Community Right-to-Know Act, as amended (42 U.S.C. §11001 et seq.), the Hazardous Substances Transportation Act, as amended (49 U.S.C. §1801 et seq.), the Clean Air Act, as amended (42 U.S.C. §7401 et seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §6901 et seq.), and any regulations promulgated thereunder. In the event Customer and Ironclad agree in writing that Ironclad will transport Hazardous Substances on behalf of Customer, the Hazardous Transportation Terms and Conditions will apply to such services.
47. NONCONFORMING WASTE.
If Customer delivers to Ironclad or Ironclad retrieves (on behalf of Customer) any Nonconforming Waste (as defined below), Ironclad shall immediately provide notice to Customer upon its discovery thereof. Following such notice, Ironclad may pursue one of the following courses of action: (a) Ironclad may require Customer to immediately collect and remove part or all of the Nonconforming Waste and to transport and/or dispose of such Nonconforming Waste to a lawful place of disposition; (b) Ironclad may return the Nonconforming Waste to Customer within a reasonable time after notice of nonconformity has been communicated to Customer; (c) Ironclad may transport and/or dispose of the Nonconforming Waste to a lawful place of disposition; or (d) Ironclad may agree with Customer to some mutually acceptable alternative lawful manner of disposition of the Nonconforming Waste. In all events, Customer shall pay Ironclad its reasonable expenses and charges for retrieving, handling, loading, preparing, transporting, storing, caring for, and disposing of, any Nonconforming Waste. For purposes of the Agreement, the term "Nonconforming Waste" shall mean Waste Materials that (i) do not conform to the descriptions in the applicable Profile Sheet, (ii) contain Hazardous Substances, (iii) are not in accordance with the representations, warranties and descriptions, specifications or limitations set forth in the Agreement or any Work Order issued thereunder, and/or (iv) are rejected as unacceptable for disposal by the designated disposal facility.
48. TRANSPORTATION SERVICES.
Ironclad shall transport and deliver the Waste Materials to the designated disposal facility in accordance with the provisions of the Agreement, any Work Orders, and all applicable laws, rules, regulations, and orders, and shall deliver the Waste Materials to the designated disposal facility. Customer shall have the sole responsibility and obligation for verifying the accuracy and completeness of the description of the Waste Materials contained in the Profile Sheet or work authorizations (or similar document), the quantities thereof and for determining that the packaging, labeling, marking, coding and placarding of same for shipment complies with all applicable federal, state and local laws and regulations prior to transport thereof.
49. RISK OF LOSS.
Risk of loss to all Waste Materials tendered to Ironclad shall pass from Customer to Ironclad upon Ironclad's acceptance of delivery thereof but only until delivery thereof by Ironclad to Customer's designated disposal facility, after which Ironclad shall not bear any further risk of loss. If any event resulting in death, injury, accident, property damage, environmental contamination, significant media coverage or community evacuation occurs while Ironclad performs any transportation services, Ironclad shall immediately report such matters to Customer. Title to any Waste Materials shall at all times remain with Customer. Notwithstanding the foregoing, in no event shall Ironclad have any risk of loss with respect to any Nonconforming Waste tendered to Ironclad and such risk of loss shall, at all times, remain with Customer.
(a) Ironclad shall be liable to Customer for cargo loss, damage or delay in accordance with the provisions of 49 USC 14706, which liability shall be limited to the lesser of (a) the actual value of the Waste Materials, (b) $10,000.00 per truckload, or (c) the Limitation of Liability Section set forth in the General Terms & Conditions. In addition, Ironclad shall not be liable to Customer for any economic loss or consequential damages to Customer beyond actual loss.
(b) The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. Part 370. Customer shall submit to Ironclad written notice of any cargo claim, for loss, damage or delay, within nine (9) months of the delivery date of the shipment or, if no delivery, the date delivery would have been reasonably expected. Any civil action filed by Customer must be filed no later than two (2) years from the date of delivery specified on the bill of lading.
50. RETRIEVAL AND DISPOSAL SITES.
Customer shall arrange for, select, designate, and communicate to Ironclad all locations or facilities where Ironclad is to retrieve the Waste Materials. Customer shall arrange for, select, designate, and communicate to Ironclad all recycling, reclamation, treatment, storage, or disposal facilities to which Ironclad is to transport the Waste Materials. Customer acknowledges and agrees that Ironclad shall not be responsible in any way for selecting, designating or communicating to Customer as to which recycling, reclamation, treatment, storage, or disposal facilities that Customer decides to transport the Waste Materials to, and that such selection, designation or communication is the sole responsibility of Customer or the generator identified on the applicable Profile Sheet. Ironclad provides no oversight, evaluation, or due diligence regarding Customer's choice of disposal facility and expressly disclaims any responsibility for such selection. Customer acknowledges that Ironclad acts solely as a transporter and has no control over or responsibility for the ultimate disposition, treatment, or disposal of Waste Materials once delivered to Customer's selected facility. Customer represents and warrants that any disposal facility selected to receive the Waste Materials is properly permitted to receive the Waste Materials under applicable federal, state and local laws and regulations.
51. REJECTED DELIVERIES.
In the event that the designated disposal facility rejects delivery of the Waste Materials, Ironclad shall immediately notify Customer prior to taking further action. Ironclad shall then proceed according to Customer's instructions, except to the extent immediate actions are needed to ensure health, safety, and or relevant laws are followed. Customer agrees that it shall bear all additional costs and expenses arising from such rejection to the extent such rejection is due to causes outside of Ironclad's control and/or responsibility, including, but not limited to, (a) rejections due to the nonconformance of the Waste Materials to the descriptions contained in the Profile Sheet, work authorizations (or similar document) or other written instruction relating to the transportation services; (b) mishandling, mislabeling, miscoding, or improper packaging, placarding, or labeling of the Waste Materials; (c) failure of Customer to properly schedule delivery with the disposal facility; (d) the violation of any applicable law, rule, regulation, or order by Customer; or (e) any act or omission of Customer in connection with the storage or loading of the equipment used in connection with the transportation services prior to any transportation services being rendered hereunder.
52. CHARGES.
In addition to the rates set forth in any Work Order, Ironclad may charge Customer additional amounts including (a) any fuel surcharge, fixed by Ironclad and Customer from time to time; (b) additional equipment, materials or personnel needed to perform the transportation services; and/or (c) any amounts which Ironclad is required to pay to local, state, or federal governments or agencies by virtue of a tax, tariff, fee, surcharge, or other charge in connection with the performance of the transportation services (other than an income tax).
53. INDEMNIFICATION.
Ironclad shall indemnify, defend and hold harmless Customer, its affiliates, subsidiaries, directors, officers, employees and agents from and against all losses, damages, liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, costs and expenses, including, but not limited to, costs of defense, settlement and reasonable attorneys' fees (including, but not limited to, investigative, removal or remedial expenses in connection with contamination of or adverse effect on the environment) arising out of or in connection with, any Waste Materials (other than and excluding Nonconforming Waste) handled by Ironclad pursuant to the Agreement and any Work Order issued thereunder, but only to the extent arising during Ironclad's custody or control of such Waste Materials.
Customer shall indemnify, defend and hold harmless Ironclad, its affiliates, subsidiaries, directors, officers, employees, and agents from and against all losses, damages, liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, costs and expenses, including, but not limited to, costs of defense, settlement and reasonable attorneys' fees (including, but not limited to, investigative, removal or remedial expenses in connection with contamination of or adverse effect on the environment) arising out of or in connection with: (i) any disposal facility to which Ironclad transported any Waste Materials; (ii) any Waste Materials (excluding any Nonconforming Waste) while not in the custody or control of Ironclad; or (iii) any Nonconforming Waste (irrespective of whether in Ironclad's custody or control).
54. INSURANCE.
Customer shall maintain commercial general liability insurance, including a waiver of subrogation, with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including coverage for products and completed operations, and environmental pollution liability insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate. Customer shall also maintain umbrella/excess liability insurance with limits of not less than $5,000,000 per occurrence and in the aggregate. All such insurance policies shall name Ironclad as an additional insured and shall include a waiver of subrogation in favor of Ironclad. Customer shall provide Ironclad with certificates of insurance evidencing such coverage prior to commencement of any transportation services. All insurance policies shall provide for thirty (30) days' written notice to Ironclad prior to any cancellation or material modification.
55. CUSTOMER PREPARATION OBLIGATIONS.
Customer shall be solely responsible for the proper packaging, securing, labeling, and placarding of all Waste Materials in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, DOT regulations. Customer shall provide a safe loading area with adequate vehicular access, proper lighting, and safe working conditions for Ironclad's personnel and equipment. Customer shall have all required permits, manifests, bills of lading, and other documentation prepared and readily available at the time of pickup. Customer warrants that all Waste Materials will be properly contained in suitable packaging that prevents leakage, spillage, or contamination during transport. Customer shall be responsible for all increased costs incurred by Ironclad as a result of Customer's failure to comply with the obligations set forth in this Section, including but not limited to waiting time, return trips, additional personnel or equipment required, and demurrage. Ironclad shall not be responsible for any damage to Customer's site, ground, pavement, underground utilities, landscaping, structures, or other property that may occur during pickup or loading operations.
56. CANCELLED TRIP CHARGES.
If Customer requests pickup of Waste Materials but such materials are not ready for pickup, do not conform to the applicable Profile Sheet, or if site conditions prevent safe pickup or loading, Customer shall pay Ironclad a cancelled trip charge equal to the greater of (a) the pickup fee as set forth in the applicable Work Order and (b) the costs incurred by Ironclad, including, but not limited to, driver time, fuel costs, vehicle deployment, equipment mobilization, demurrage, and any other expenses related to the cancelled pickup attempt, plus a 20% administrative fee. Customer shall be responsible for any additional costs incurred by Ironclad if a return trip is required due to Customer's failure to have Waste Materials properly prepared, accurately described in the Profile Sheet, or accessible for safe pickup. Ironclad reserves the right to refuse pickup of any Waste Materials that do not meet the requirements set forth in this Section. Ironclad's driver shall have sole discretion to determine whether Waste Materials are ready for pickup and whether site conditions allow for safe loading and transport operations.
57. WARRANTY DISCLAIMER.
CUSTOMER ACKNOWLEDGES THAT IRONCLAD'S TRANSPORTATION SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." IRONCLAD MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, TIMING, ROUTE SELECTION, DELIVERY SCHEDULES, OR COMPLIANCE WITH CUSTOMER'S SPECIFICATIONS OR REQUIREMENTS. IRONCLAD DOES NOT WARRANT THAT THE TRANSPORTATION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM DELAYS, OR THAT ANY DEFECTS IN THE TRANSPORTATION SERVICES WILL BE CORRECTED. IRONCLAD DISCLAIMS ALL WARRANTIES REGARDING THE SELECTION OF ROUTES, TRANSPORTATION METHODS, DELIVERY TIMING, AND THE CONDITION OF WASTE MATERIALS UPON DELIVERY TO THE DESIGNATED DISPOSAL FACILITY. CUSTOMER AGREES THAT CUSTOMER HAS SOLELY DETERMINED THAT THE TRANSPORTATION SERVICES ARE SUITABLE FOR CUSTOMER'S INTENDED USE.
Hazardous Transportation Terms and Conditions
58.
The following terms shall apply to Ironclad's provisions of Hazardous Transportation Services and collectively with Non-Hazardous Transportation Services, "Services") provided on behalf of Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the Master Agreement, General Terms and Conditions, and the Non-Hazardous Transportation Terms and Conditions. Except where explicitly noted, in the event of a conflict between any other Contract Document and these Hazardous Transportation Terms and Conditions, these Hazardous Terms and Conditions shall apply to the Hazardous Transportation Services provided by Ironclad to Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the General Terms and Conditions.
59. SERVICES; HAZARDOUS MATERIALS
Subject to the terms and conditions set forth herein and in the General Terms and Conditions, as may be requested in one or more Work Orders, Ironclad shall provide transportation/hauling services related to Hazardous Substances (as defined below) generated by the Customer ("Hazardous Transportation Services"). The Customer shall provide Ironclad with advance written notice of the proposed shipment of any Hazardous Substances. Prior to the transportation of any such Hazardous Substances, the Customer shall provide Ironclad with a current material safety data sheet or any other Hazardous Substances documentation requested or required to be prepared and provided by the Customer for the Hazardous Substances shipment ("Safety Data Sheet"). The Customer expressly acknowledges that Ironclad will not independently analyze or verify the Hazardous Substances but rather is relying exclusively on the information and materials provided by the Customer incident to the transportation services, which the Customer represents, warrants and covenants shall be true, accurate and complete in all respects. The Customer also warrants that any containers of Hazardous Substances retrieved by Ironclad will be marked, labeled, and otherwise in conformance with all applicable federal, state, and local laws and regulations. Ironclad shall have the right, but not the obligation to inspect, analyze and/or test any Hazardous Substances before performing the transportation services. Ironclad's exercise of, or failure to exercise, its right hereunder shall not operate to relieve the Customer of its responsibility or liability under this Agreement. In the event that the shipment contains any hazardous waste subject to the Resource Conservation Recovery Act ("RCRA"), 40 U.S.C. 3010, Customer shall be responsible for providing Ironclad with a Hazardous Waste Manifest (EPA Form 8700-22 or 8700-22A) meeting the requirements imposed by the Environmental Protection Agency ("EPA") under 40 C.F.R. 262.200.
60. NONCONFORMING SUBSTANCES.
If the Customer delivers to Ironclad or Ironclad retrieves (on behalf of the Customer) any Nonconforming Substances (as defined below), Ironclad shall immediately provide notice to the Customer upon its discovery thereof. Following such notice, Ironclad may pursue one of the following courses of action: (a) Ironclad may require the Customer to immediately collect and remove part or all of the Nonconforming Substances and to transport and/or dispose of such Nonconforming Substances to a lawful place of disposition; (b) Ironclad may return the Nonconforming Substances to the Customer within a reasonable time after notice of nonconformity has been communicated to the Customer; (c) Ironclad may transport and/or dispose of the Nonconforming Substances to a lawful place of disposition; or (d) Ironclad may agree with the Customer to some mutually acceptable alternative lawful manner of disposition of the Nonconforming Substances. In all events, the Customer shall pay Ironclad its reasonable expenses and charges for retrieving, handling, loading, preparing, transporting, storing, caring for and disposing of, any such Nonconforming Substances pursuant to this Section. For purposes of this Agreement, the term "Nonconforming Substances" shall mean (A) Hazardous Substances for which the Customer failed (i) to notify Ironclad that its waste to be transported is Hazardous Substances, (ii) to provide a Safety Data Sheet, or other requested documentation or materials, (iii) to provide an inaccurate Safety Data Sheet, or other requested documentation or materials, or (iii) to provide Ironclad with access to the Hazardous Substances prior to the commencement of the transportation services, or (B) Hazardous Substances that (i) do not conform to the descriptions in the Safety Data Sheet or applicable information or materials provided by the Customer, (ii) are not in accordance with the representations, warranties and descriptions, specifications or limitations set forth in the Agreement, and/or (iii) are rejected as unacceptable for disposal by the designated disposal facility.
61. TRANSPORTATION SERVICES.
Ironclad shall transport only properly characterized and documented Hazardous Substances to the designated disposal facility in accordance with the provisions of this Agreement, any Work Orders, and all applicable laws, rules, regulations, and orders, and shall deliver the Hazardous Substances to the designated disposal facility. The Customer shall have the sole responsibility and obligation for verifying the accuracy and completeness of the description of the Hazardous Substances contained in the work authorizations (or similar document), the quantities thereof and for determining that the packaging, labeling, marking, coding and placarding of same for shipment complies with all applicable federal, state and local laws and regulations prior to transport thereof.
62. RISK OF LOSS.
Risk of loss to all Hazardous Substances tendered to Ironclad shall pass from the Customer to Ironclad upon Ironclad's acceptance of delivery thereof but only until delivery thereof by Ironclad to the Customer's designated disposal facility, after which Ironclad shall not bear any further risk of loss. If any event resulting in death, injury, accident, property damage, environmental contamination, significant media coverage or community evacuation occurs while Ironclad performs any transportation services, Ironclad shall immediately report such matters to the Customer. Title to any Hazardous Substances shall at all times remain with the Customer. Notwithstanding the foregoing, in no event shall Ironclad have any risk of loss with respect to any Nonconforming Substances tendered to Ironclad and such risk of loss shall, at all times, remain with the Customer.
(a) Ironclad shall be liable to Customer for cargo loss, damage or delay in accordance with the provisions of 49 USC 14706, which liability shall be limited to the lesser of the actual value of the Waste Materials or $100,000.00 per truckload. In addition, Ironclad shall not be liable to Customer for any economic loss or consequential damages to Customer beyond actual loss.
(b) In the event Customer wishes to declare a higher value of liability with respect to any shipment subject to this Agreement, Customer must make such request to Ironclad in writing at least seventy-two (72) hours prior to the scheduled pick-up. If such request is accepted by Ironclad in a signed writing, and Customer pays additional freight charges applicable thereto, then Ironclad will be liable for the full value declared by Customer, but such liability shall in no event exceed $200,000.00 or the full cost of the goods, whichever is less.
(c) The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. Part 370. Customer shall submit to Ironclad written notice of any cargo claim, for loss, damage or delay, within nine (9) months of the delivery date of the shipment or, if no delivery, the date delivery would have been reasonably expected. Any civil action filed by Customer must be filed no later than two (2) years from the date of delivery specified on the bill of lading.
63. RETRIEVAL AND DISPOSAL SITES.
The Customer shall arrange for, select, designate, and communicate to Ironclad all locations or facilities where Ironclad is to retrieve the Hazardous Substances. The Customer shall arrange for, select, designate, and communicate to Ironclad all recycling, reclamation, treatment, storage, or disposal facilities to which Ironclad is to transport the Hazardous Substances. Customer acknowledges and agrees that Ironclad shall not be responsible in any way for selecting, designating, or recommending any disposal facilities for Hazardous Substances, and that such selection is the sole responsibility of Customer or the generator. Ironclad makes no representations, warranties, or recommendations regarding the suitability, legality, permitting status, operational capabilities, financial stability, or compliance history of any disposal facility selected by Customer. Ironclad provides no oversight, evaluation, or due diligence regarding Customer's choice of disposal facility and expressly disclaims any responsibility for such selection. Customer acknowledges that Ironclad acts solely as a transporter of Hazardous Substances and has no control over or responsibility for the ultimate disposition, treatment, or disposal of Hazardous Substances once delivered to Customer's selected facility including but not limited to liabilities under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA"). Ironclad does not operate any storage facilities and is not authorized or permitted to store Hazardous Substances, even temporarily. Customer shall ensure that all Hazardous Substances are transported directly to Customer's designated disposal facility without any interim storage by Ironclad. In the event Customer's designated disposal facility rejects or is unable to accept Hazardous Substances, Customer shall immediately designate an alternative facility; under no circumstances shall Ironclad be required to store or hold Hazardous Substances pending Customer's designation of an alternative facility. The Customer represents and warrants that any disposal facility selected to receive the Hazardous Substances is properly permitted to receive the Hazardous Substances under applicable federal, state and local laws and regulations.
64. REJECTED DELIVERIES.
In the event that the designated disposal facility rejects delivery of the Hazardous Substances, Ironclad shall immediately notify the Customer by telephone prior to taking further action. Ironclad shall then proceed only according to the Customer's instructions, except to the extent immediate actions are needed to ensure health, safety, and or relevant laws are followed. The Customer agrees that it shall bear all additional costs and expenses arising from such rejection to the extent such rejection is due to causes outside of Ironclad's control and/or responsibility, including, but not limited to, the customer providing Nonconforming Substances (a) rejections due to the nonconformance of the Hazardous Substances to the descriptions contained in the work authorizations (or similar document) or other written instruction relating to the transportation services; (b) mishandling, mislabeling, miscoding, or improper packaging, placarding, or labeling of the Hazardous Substances; (c) failure of the Customer to properly schedule delivery with the disposal facility; (d) the violation of any applicable law, rule, regulation, or order by the Customer; or (e) any negligent or willful act or omission of the Customer in connection with the storage or loading of the equipment used in connection with the transportation services prior to any transportation services being rendered hereunder.
65. CHARGES.
In addition to the rates set forth in any Work Order, Ironclad may charge the Customer additional amounts, including (a) any fuel surcharge, fixed by Ironclad and the Customer from time to time; (b) additional equipment, materials or personnel needed to perform the transportation services; and/or (c) any amounts which Ironclad is required to pay to local, state, or federal governments or agencies by virtue of a tax, tariff, fee, surcharge, or other charge in connection with the performance of the transportation services (other than an income tax).
66. ENHANCED INDEMNIFICATION; HAZARDOUS SUBSTANCES
In addition to the indemnification provisions set forth in the General Terms and Conditions, Customer shall indemnify, defend and hold harmless Ironclad, its affiliates, subsidiaries, directors, officers, employees, and agents from and against all losses, damages, liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, costs and expenses (including reasonable attorneys' fees and court costs) of every kind and character arising from or related to: (a) the generation, handling, transportation, treatment, storage, or disposal of Hazardous Substances while not in the custody or control of the Ironclad; (b) any inaccuracy in Customer's characterization or documentation of Hazardous Substances; (c) any Nonconforming Substances; (d) Customer's selection of disposal facilities; (e) any violation of Environmental Laws by Customer; and (f) any environmental contamination or remediation costs arising from Customer's Hazardous Substances, except to the extent caused by Ironclad's gross negligence or willful misconduct.
67. INSURANCE.
Customer shall maintain commercial general liability insurance, including a waiver of subrogation, with limits of not less than $1,000,000 per occurrence and $5,000,000 in the aggregate, including coverage for products and completed operations, and environmental pollution liability insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate. Customer shall also maintain umbrella/excess liability insurance with limits of not less than $5,000,000 per occurrence and in the aggregate. All such insurance policies shall name Ironclad as an additional insured and shall include a waiver of subrogation in favor of Ironclad. Customer shall provide Ironclad with certificates of insurance evidencing such coverage prior to commencement of any transportation services involving Hazardous Substances. All insurance policies shall provide for thirty (30) days' written notice to Ironclad prior to any cancellation, material modification, or non-renewal. Customer's failure to maintain the required insurance coverage shall constitute a material breach of this Agreement and shall entitle Ironclad to suspend performance of transportation services until such coverage is obtained and evidence thereof provided to Ironclad.
68. CUSTOMER LOADING AND PACKAGING OBLIGATIONS.
Customer shall be solely responsible for the proper packaging, securing, labeling, placarding, and manifesting of all Hazardous Substances in strict accordance with all applicable federal, state, and local laws and regulations, including, without limitation, DOT hazardous materials regulations, OSHA standards, and EPA requirements. Customer shall provide a safe loading area with adequate vehicular access, proper lighting, emergency response equipment, and safe working conditions for Ironclad's personnel and equipment. Customer shall have all required permits, hazardous waste manifests, shipping papers, bills of lading, emergency response information, and other documentation prepared and readily available at the time of pickup. Customer warrants that all Hazardous Substances will be properly contained in DOT-approved packaging that prevents leakage, spillage, or contamination during transport and that all containers are structurally sound and compatible with the specific Hazardous Substances being transported. Customer shall ensure that all personnel involved in loading operations are properly trained and certified in hazardous materials handling. If Customer fails to meet any of these obligations, Customer shall be responsible for all additional costs, delays, demurrage charges, return trips, disposal fees, emergency response costs, regulatory fines, cleanup expenses, and any other expenses incurred by Ironclad as a result of such failure. Ironclad reserves the right to refuse pickup of any Hazardous Substances that do not meet the requirements set forth in this Section, and Customer shall pay all costs associated with any failed pickup attempts due to Customer's non-compliance with these obligations, including, but not limited to, a minimum charge equal to Ironclad's standard hazardous material transport rate for the scheduled pickup. Ironclad shall not be responsible for any damage to Customer's site, ground, pavement, underground utilities, landscaping, structures, or other property that may occur during pickup or loading operations.
69. CANCELLED TRIP CHARGES.
If Customer requests pickup of Hazardous Substances but such materials are not ready for pickup, do not conform to the applicable material safety data sheet or other documentation provided by Customer, or if site conditions prevent safe pickup or loading, Customer shall pay Ironclad a cancelled trip charge equal to the greater of (a) the pickup fee as set forth in the applicable Work Order and (b) the costs incurred by Ironclad, including, but not limited to, specialized driver time, fuel costs, hazardous materials vehicle deployment, specialized hazmat equipment mobilization, decontamination procedures, demurrage, regulatory compliance costs, and any other expenses related to the cancelled pickup attempt, plus a 20% administrative fee. Customer shall also be responsible for any additional costs incurred by Ironclad if a return trip is required due to Customer's failure to have Hazardous Substances properly prepared, accurately described in the provided documentation, or accessible for safe pickup in compliance with applicable hazardous materials regulations. Ironclad's driver shall have sole discretion to determine whether Hazardous Substances are ready for pickup and whether site conditions allow for safe loading and transport operations in accordance with DOT hazardous materials regulations.
70. WARRANTY DISCLAIMER.
CUSTOMER ACKNOWLEDGES THAT IRONCLAD'S HAZARDOUS TRANSPORTATION SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." IRONCLAD MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, TIMING, ROUTE SELECTION, DELIVERY SCHEDULES, HAZARDOUS MATERIALS HANDLING, OR COMPLIANCE WITH CUSTOMER'S SPECIFICATIONS OR REQUIREMENTS. IRONCLAD DOES NOT WARRANT THAT THE HAZARDOUS TRANSPORTATION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM DELAYS, OR THAT ANY DEFECTS IN THE TRANSPORTATION SERVICES WILL BE CORRECTED. IRONCLAD DISCLAIMS ALL WARRANTIES REGARDING THE SELECTION OF ROUTES, TRANSPORTATION METHODS, DELIVERY TIMING, HAZARDOUS SUBSTANCES HANDLING PROCEDURES, AND THE CONDITION OF HAZARDOUS SUBSTANCES UPON DELIVERY TO THE DESIGNATED DISPOSAL FACILITY. CUSTOMER AGREES THAT CUSTOMER HAS SOLELY DETERMINED THAT THE HAZARDOUS TRANSPORTATION SERVICES ARE SUITABLE FOR CUSTOMER'S INTENDED USE.