Performance CONTRACTORS, INC. HAULING TERMS AND CONDITIONS The terms and conditions contained herein ( Terms and Conditions ) shall govern the Purchase Order issued to Hauler by Company ( Purchase Order ). Whether construed as an offer, acceptance, or confirmation, the Purchase Order shall be governed by and subject to (i) these Terms and Conditions; (ii) the Purchase Order, including price, delivery schedule and instructions, designated delivery destination, and shipping requirements as specified in the Purchase Order. The above constitute the entire and integrated agreement between Company and Hauler, and hereinafter shall collectively be referred to as the "Purchase Order. The Purchase Order shall not be construed as a requirements contract, and nothing in the Purchase Order shall require Company to award any additional hauling Purchase Order(s) to Hauler; Hauler agrees that nothing in the Purchase Order shall entitle Hauler to the award of any such additional Purchase Order(s). 1. Consideration. For and in consideration of the covenants herein contained, the Hauler agrees to transport equipment, construction material(s) and similar items, from and to locations designated by the Company pursuant to the provisions of the Purchase Order. By transporting the equipment or materials, or by acknowledging receipt of the Purchase Order, Hauler agrees to these Terms and Conditions. The Purchase Order may not be modified or superseded except by a written instrument signed by an authorized representative of Company. Different or additional terms or conditions in Hauler s responses, proposals, receipts, or similar documents are hereby objected to and considered null and void, and no subsequent conduct of Company shall be deemed as an acceptance thereof. For all shipments transported by Hauler, Hauler shall be compensated by the Company at rates as outlined in the Purchase Order. Where payment is based on weight, the weights to be used in the calculation shall be as shown on the Company's scales or a designated scale at the point of shipment. Any and all work or services performed under the Purchase Order shall be done so in compliance with the Terms and Conditions of the Purchase Order. 2. Hauler Equipment. Hauler agrees, at its own expense, to acquire, hire, or otherwise furnish sufficient and suitable motor truck equipment ("Equipment") to haul such products and shall, also at its own expense, employ all necessary drivers, driver-helpers, and laborers to carry out the Purchase Order. The control and possession of all Equipment used to haul such products, and the right to hire, fire, and direct the drivers, shall at all times remain with the Hauler, who shall be an independent contractor to the Company. 3. Hauler License. All licenses, fees or costs relating to Hauler's Equipment shall be the responsibility of Hauler at its own expense. In addition, the Hauler shall bear all operating and maintenance costs for the Equipment, it being the intent of the parties that the sole obligation of the Company will be to pay the Hauler the amounts set forth in the Purchase Order. 4. Transport Company Equipment / Use of Company Equipment. From time to time as specifically set forth in the Purchase Order, Company may authorize Hauler to utilize Company s trailers, for the purpose of moving equipment and/or materials from one location to another, empty or loaded. The Hauler shall not use the Company s trailers, for transporting materials and/or equipment that do not belong to Company. In the event that Hauler or any of Hauler s agent s, employees, suppliers, or lower-tier Haulers utilize any trailers, machinery, equipment, tools, ladders, scaffolding, hoists, lifts, or similar items belonging to or under the control of the Company or any 1215 Page 1 of 6 Initials
Indemnified Parties as defined below ( Loaned Equipment ), Hauler agrees to accept any Loaned Equipment as is, and assumes all risks associated with its use thereof. Hauler shall ensure that only properly trained and/or certified personnel utilize Loaned Equipment in full compliance with the manufacturer s instructions, recommendations and applicable limitations. Hauler is responsible for any and all inspections of the Loaned Equipment prior to use as required by the manufacturer or regulatory authorities having jurisdiction over any such equipment. 5. Work Required on Site, or within Plant limits. The Hauler shall be solely responsible to take all necessary precautions and to perform the work and services in a safe and proper manner. Hauler expressly assumes all risks associated with its work under the Purchase Order. If hauling is required on the Owner s site or within plant limits, the Hauler agrees to maintain Safety Standards required by the Owner, Company, and any applicable Federal, State and Local laws, regulations and standards. The Hauler shall furnish sufficient First Aid Kits, and Protective Equipment as required by job conditions. Prior to any work being performed under the Purchase Order, a certificate of insurance and annual safety certification of all equipment used by Hauler must be on file with Company. 6. Compliance with Laws. Hauler agrees to comply with all Local, State or Federal rules, ordinances, statutes, regulations, orders, or decrees, that may be applicable to the Purchase Order, including but not limited to the (state) Motor Carrier Safety Regulations and the Federal Motor Carrier Safety Regulations, where applicable. All drivers shall be qualified and s h a l l meet all the requirements of applicable federal, state, and local laws, ordinances, rules and regulations. Hauler agrees that its liability to Company for loss or damage to property being transported pursuant to the Purchase Order shall in no event be less than provided by the rules and regulations for the handling of loss and damage claims as prescribed for motor carriers in Title 49 of the United States Code as in effect on the date of the Purchase Order. Hauler represents and warrants to Company that the motor vehicle or vehicles used to haul loads under the Purchase Order are registered with the appropriate state and/or local authorities for the maximum weight permitted by law for said vehicle or vehicles. Hauler will indemnify, defend, and save harmless Company from and against any damages, costs, or penalties, including attorney s fees, suffered by Company, or its officers, directors, members, agents, consultants or employees as a result of the failure of the Hauler to comply with any applicable laws or regulations. 7. Independent Contractor. It is declared to be the express intention of each of the parties that the services rendered by Hauler in the fulfillment of the terms and obligations of the Purchase Order shall be as an independent contractor. The parties further understand that Hauler shall be solely and exclusively responsible for the payment of any wages and expenses of anyone hired by Hauler, and all taxes, including, but not limited to federal, state and local taxes arising out of Hauler s activities hereunder, (including by way of illustration, but not limitation: federal and state income tax, social security tax, unemployment insurance taxes, and any and all other taxes or license fees as otherwise required). Hauler acknowledges that the Company will not, and is not required to, withhold from Hauler any sums for any such fees, taxes, dues or benefits, nor will Company provide any worker s compensation benefits. Hauler does hereby agree, to the fullest extent permitted by law, to indemnify, defend and hold harmless Company, along with its officers, directors, members, agents, consultants or employees, from and against all claims by federal, state, and local agencies for such taxes or fees. 8. Brokered Loads. In the event that Hauler enters into a contract with a Sub-Hauler, the Hauler will require the Sub-hauler to procure all insurance specified in the Purchase Order to be carried by the Hauler, in the like form and amount, and to name the Company as an Additional Insured under the Sub-Hauler s policies on the same terms and conditions of the Purchase Order. Hauler will require evidence of this insurance and Additional Insured status to be provided by the Sub- Page 2 of 6
Hauler prior to the Sub-Hauler commencing any work or entering onto a jobsite or project area. Copies of this evidence shall be maintained and verified by the Hauler and provided to Company by the Hauler upon request. Any brokered load by Hauler to others shall be governed by the same terms and conditions as listed in the Purchase Order. 9. Documentation. As an express condition precedent to any amounts being due to Hauler pursuant to the Purchase Order, Hauler shall provide to Company the following documentation: Complete address of pickup and delivery locations; Signature of Company representative upon pickup and delivery; Detailed description of Hauler Equipment used to transport, including truck number and trailer number; Detailed description of non-piping commodities transported; Company tickets for fabricated pipe transported; Detailed Bill of Lading for non-fabricated pipe or other commodities transported; Detailed description of Company equipment transported including identification number; Hauler s start time and any demurrage time, if applicable as authorized in the Purchase Order; and other documentation as reasonably requested by Company. 10. Overweight Tickets. Trucker is responsible for overweight tickets, including fines or fees arising out of such tickets, for all weighed material. 11 Loading/Securing Loads. Company shall be responsible for proper loading of the cargo. The Hauler shall be solely responsible to furnish and install all necessary items to completely and properly secure any and all loads to be transported pursuant to the Purchase Order, including loads transported on Company s trailers.. 12. Damages. a. Damage to Company Trailers. Hauler shall be liable for any damage to Company s trailers unless the damage was caused solely by a defect in the trailer not discoverable during a competent inspection of the trailer. b. Damage to Hauler s Equipment. Hauler shall be solely responsible for any damage to Hauler s Equipment. c. Loss of or Damage to Cargo. Hauler shall be liable for any loss of or damage to cargo, or for delay in delivering cargo, unless the damage or delay was caused solely by a defect in a Company trailer not discoverable during a competent inspection of trailer. 13. General Insurance Requirements. Prior to the commencement of work pursuant to the Purchase Order, Hauler shall procure and at all times maintain the insurance coverage and limits specified in the Purchase Order. Company shall be listed as an additional insured under all such insurance policies, with the exception of Worker s Compensation insurance. The Hauler shall provide a signed original Certificate of Insurance (Accord Form) which shall include a 30 day Notice of Cancellation. Designated Insured form CA 2048 or equivalent shall apply or alternatively a policy providing automatic coverage for additional insureds required by contract. a. The Certificate shall list the Certificate Holder as: Performance Contractors, Inc. 9901 Pecue Lane Baton Rouge, LA 70810 Page 3 of 6
b. The Description of Operations as shown on the Accord Form shall read: All haul/transport projects as authorized and defined in the Purchase Order. Performance Contractors, Inc., the Owner, and others as required by written contract to be named as additional insureds for Ongoing and Completed Operations on a Primary and Non-Contributory basis on all General liability, and Excess/Umbrella Liability policies. General Liability Additional Insured endorsements are afforded via ISA CG 20 10 07/04 combined with ISO CG 20 37 07/04 or equivalent. Auto Liability Additional Insured endorsements are afforded via ISA CA 20 48. General Liability, Auto Liability, and Worker s Compensation policies are endorsed to provide a Waiver of Subrogation in favor of Performance Contractors, Inc. c. Hauler s insurance policies, including Hauler s Excess and/or Umbrella insurance, shall state via endorsement that the policies are primary to and non-contributing with, any other insurance carried by, or for the benefit of the Company, or any other party required to be named as Additional insured under the Purchase Order. Coverage shall be provided by a policy endorsement such as CG 20 01. Any such insurance maintained by an Additional Insured shall be excess of any such insurance maintained by the Hauler. The intent of this provision is to specifically require that the Hauler s primary and excess layers of insurance will respond first and completely, prior to any other insurance responding that is carried by, or for the benefit of the Company, or any other party required to be named as Additional Insured under the Purchase Order. d. Hauler shall provide for all insurance policies required by the Purchase Order, by policy endorsement, a waiver of subrogation in favor of the Company, Owner, and any other additional insured required by an executed Purchase Order. e. Commercial General Liability aggregate limits carried by the Hauler shall be on a per project/per location basis. 14. Insurance Policies/Limits. In connection with all services provided under the Purchase Order, the Hauler, at its own expense, shall at all times during the life of the Purchase Order provide the following insurance coverages: a. Commercial General Liability insurance on a current ISO Form or equivalent with the following limits: General Aggregate $2,000,000 Products/Completed Operations $2,000,000 Personal/Advertising Injury $1,000,000 Per Occurrence Limit $1,000,000 Medical Expenses $5,000 Coverages shall include without limitation: premises operations, XCU, products - completed operations, contractual, independent contract, broad form property damage and personal injury. b. Automobile Liability Policy and Certificate. Automobile coverage for any automobile, including owned, hired, and non-owned vehicles and leased vehicles, shall have insurance with a combined single limit for Bodily Injury and Property Damage in the amount of at least $1,000,000 and include the MCS-90 endorsement. Page 4 of 6
c. Workers Compensation: Coverage A Statutory Coverage B $500,000 Bodily Injury by Accident (Each Accident) $500,000 Bodily Injury by Disease (Each Employee) $500,000 Bodily Injury by Disease (Policy Limit) $500,000 If the Hauler is a Sole Proprietor or Single Owner/Operator, and is exempt from Workers Compensation laws in its state, the Hauler is required to sign and have notarized a Workers Compensation Waiver form. d. Umbrella Coverage: The Hauler will obtain umbrella coverage with limits detailed below. In Lieu of Umbrella Coverage the Trucker may provide $3,000,000 in automobile liability coverage. Aggregate Limit $2,000,000 Per Occurrence Limit $2,000,000 e. Cargo Insurance (Each truck load-minimum) $1,000,000 15. Indemnification. Hauler expressly agrees and stipulates that it shall, to the fullest extent permitted by law, release, protect, defend, indemnify, save and hold harmless Company, Owner and their respective subsidiaries, parent companies, affiliates, officers, directors, shareholders, employees and consultants (hereinafter collectively referred to as Indemnified Parties ), from and against any and all losses, costs, claims, damages, demands, attorney's fees, expenses, penalties, fines, suits and actions of any kind and nature arising out of any event, accident or occurrence, including but not limited to any injury or death to any person or persons, or damage to any property or loss of use thereof, arising or alleged to arise out of or in any way related to the activities to be done, performed, and/or discharged under the Purchase Order by Hauler, anyone directly or indirectly employed by Hauler, or anyone for whose acts Hauler may be legally responsible (collectively the Losses ). In the event that the Losses result in whole or in part from joint negligence or intentional acts or omissions of any of the Indemnified Parties or third parties over which Hauler has no control, Hauler s duty of indemnification under the Purchase Order shall not extend to the allocable share of such negligence or intentional acts or omissions of any of the Indemnified Parties or third parties over which Hauler has no control. Furthermore, Hauler shall be liable for all attorney's fees and costs incurred by Indemnified Parties in an effort to enforce the terms of the Purchase Order, including Hauler s indemnity obligations. 16. Insurance and Indemnity Reformation. If any insurance or indemnity provisions in the Purchase Order exceed allowable limits under applicable law, such provisions will be deemed amended to conform to such limits. 17. Termination. Company may terminate the Purchase Order by giving written notice to that effect to Hauler at any time prior to commencement of work pursuant to the Purchase Order. 18. Statutory Employer. Company and Hauler contract, agree and stipulate that Company shall, solely for workers' compensation purposes, be the statutory employer of any and all of Hauler s employees, and any employees of any sub-hauler or agent hired, or retained in any manner by Hauler (and any other person for whom Hauler may be held responsible) while any of said persons are performing any work or providing any services under the Purchase Order. In that regard, Page 5 of 6
Company and Hauler agree that all work performed under the Purchase Order shall be part of Company s trade, business and occupation, and shall be specifically considered an integral part of and essential to the ability of Company to generate its services, products and goods. Company and Hauler further agree that the services or work provided by any sub-hauler or other person retained by Hauler for the performance of any work or service under the Purchase Order shall be contemplated by and included in this provision. 19. Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be deemed duly given when delivered in person, by telefax, by electronic mail, or when mailed by certified or registered or express mail, postage paid, addressed to the intended recipient stated below, or to such other address as may be specified in writing. a. If to Hauler: Address/Contact in Purchase Order b. If to Company: Chad McCann Performance Contractors, Inc. PO Box 83630 Baton Rouge, LA 70884-3630 20. Severability and Waiver. If for any reason any provision of the Purchase Order is held invalid, in whole or in part, such invalidity shall not affect any other provision, and each provision shall to the full extent consistent with law continue in full force and effect. The failure of either party to require performance of any provision shall not affect or waive the right at a later time to enforce said provision. 21. Entire Agreement. The Purchase Order contains the entire understanding of the parties and supersedes any prior proposals, representations or agreements. Any amendments or changes hereto shall be reduced to writing, executed by Hauler and the Company, and shall thereafter modify the Purchase Order accordingly. 22. Assignment. Hauler may not assign the Purchase Order or any part hereof without first obtaining the written consent of the Company. Any assignment, if approved by Company, will not lessen, or eliminate, any requirement outlined in the Purchase Order at the time of assignment. 23. Law and Effect/Legal Forum. The Purchase Order shall be governed by and construed in accordance with the laws of the State of Louisiana, except for Louisiana s conflict of laws provisions. Page 6 of 6