Victory Equipment & Services, LLC - End User Standard Terms & Conditions

BY TAKING POSSESSION, CUSTODY OR CONTROL OF ANY EQUIPMENT OF VICTORY, END USER SHALL BE DEEMED TO HAVE READ, UNDERSTOOD, AND AGREED TO THE TERMS OF THESE END USER STANDARD TERMS AND CONDITIONS.

END USER USE, SERVICES, AND OBLIGATIONS.

(a) In the event of any use, possession, custody, or control by End User of any Equipment, End User shall be subject to these End User Standard Terms and Conditions (herein “Terms and Conditions”). “End User” means you, a party who uses, and/or takes possession, custody, or control of, Equipment owned, leased or controlled by Victory Equipment & Services, LLC (“Victory”), whether through a party that markets, arranges or brokers such Equipment (a “Broker”) or through a direct relationship with Victory. “Equipment” means any trailer, chassis, or container, or other equipment related to services provided by Broker or Victory together with any attached communication device and related sensors, if applicable, owned by Victory and used or operated by End User. An individual unit of Equipment may be referred to as a “Unit”.

(b) Insurance. End User shall maintain insurance covering the Equipment with a licensed insurance carrier with an A.M. Best rating of B+ or higher, including:

(i) Insurance covering physical loss of or damage to the Equipment from any cause or peril whatsoever.; (ii) Liability coverage protecting Victory from and against all loss and damage it may sustain or suffer because of death or injury to any person, or damage to the property of any person, as a result of the use, possession, maintenance or control of the Equipment, including, without limitation, Automobile (“Auto”) liability with a $1,000,000 combined single limit and motor vehicle (including hired and non-owned vehicles) with a $1,000,000 combined single limit (or $5,000,000 per incident if transporting hazardous materials), which includes coverage for environmental damages and remediation arising out of the release or discharge of hazardous substances. All such coverage must be primary and non-contributory; and (iii) Comprehensive General Liability coverage protecting Victory from and against all loss and damage it may sustain or suffer because of death or injury to any person, or damage to the property of any person, as a result of the use, possession, maintenance or control of the Equipment. Coverage must be primary and non-contributory and include minimum limits of $1 million general aggregate or $1 million each occurrence and include contractual liability coverage. (iv) Victory reserves the right to determine, in its sole discretion, if a policy of insurance complies with the requirements of this paragraph (b). Without limiting this right in any way, a policy of insurance does not comply with the provisions of this paragraph (b) if its coverage is: (A) contingent in any way upon the existence of coverage under a policy of insurance maintained by a third party, (B) limited to providing coverage only when a Unit is attached to specific motor vehicles, or (C) limited to providing indemnity only after the insured’s payment of a settlement or judgment. (v) Policies of insurance shall be valid and in force until the Equipment is returned to Victory. End User shall provide Victory with certificate(s) of insurance evidencing the required coverages prior to delivery or acceptance of any Equipment, promptly upon any amendment or renewal of the required coverage, and when requested by Victory. Victory must be shown as an additional insured on all such certificates, with a waiver of subrogation in favor of Victory. In addition, when available, End User shall obtain an automatic additional insured endorsement which shall apply to Victory. Upon request, End User shall provide Victory copies of End User’s insurance policies, including any endorsements, for the required coverage. End User shall provide Victory with thirty (30) days prior written notice of cancellation or material change to End User’s insurance. All deductibles and self-insured retentions must be acceptable to Victory. If requested by Victory, End User shall file a claim with its insurance carrier for any lost, stolen, or damaged Units of Equipment. Insolvency, refusal, or failure by End User’s insurance carrier to provide coverage for any and all losses, claims, liabilities or damages arising out of these Terms and Conditions shall not relieve End User of any of its obligations set forth herein. Nothing contained in these insurance requirements is to be construed as limiting the extent of End User’s liability under these Terms and Conditions.

(c) Victory Obligations. So long as End User complies with the requirements set forth in this provision and otherwise in these Terms and Conditions, Victory will (i) provide at its expense, replacement tires and brakes worn due to normal wear, as determined by Victory, at Victory’s location, or other reasonable location agreed upon by Victory and End User; (ii) perform preventative maintenance and conduct inspections of the Units, including a periodic inspection of the Units in conformance with the requirements of 49 CFR Part 396.17, upon End User making the Units available during normal business hours (Monday through Friday) at a location selected by Victory; and (iii) provide, at Victory’s expense, lights, lubricants and any other parts determined by Victory at the time of inspection to be worn due to normal wear, as needed. End User shall notify Victory of any defects, mechanical failures and needed repairs with respect to the Equipment and provide any reasonable information or data requested by Victory from time to time, including mileage status. End User shall be responsible for all expenses relating to replacement tires, brakes, lights, lubricants and other parts which are broken, inoperable or worn for reasons other than normal wear. Victory shall have no obligation to perform an annual periodic inspection or provide any replacement parts on Equipment (i) which End User has not made available to Victory for inspection, or (ii) which are designated as storage trailers. Victory shall have no obligation to reimburse End User for any periodic inspection, replacement parts, or maintenance services provided by End User. Notwithstanding the foregoing, End User shall pay Victory a charge for the pro-rated value, on a replacement cost basis, of the lost remaining life, including a casing charge, for any tire returned (i) that is not an equivalent brand and of similar quality to the tires on the Unit when End User first gain custody, possession, or control of such Unit, (ii) with tire tread depth of less than 3/32nds of an inch, (iii) that is excessively worn, or (iv) in a damaged condition. Tire damage includes flat spotting, skid damage, abnormal wear due to equipment defect or improper maintenance or any other condition that reduces the remaining useful life of the tire or its casing. A tire is excessively worn if its tread wear exceeds 1/32nds of an inch per ten thousand (10,000) miles traveled.

(d) Loss. End User shall immediately notify Victory and Broker of any damage or loss with respect to any Unit. In the case of total loss of a Unit or damage of a Unit beyond economic repair, for any reason, including theft, collision, confiscation, fire, destruction, natural disaster, hazardous waste contamination, or any other total casualty, regardless of where it may have occurred, and notwithstanding any amounts which may be paid or disputed by End User’s insurance company, End User is responsible for and shall promptly pay Victory the current replacement value of the Unit as of the first day of the month prior to such loss, as determined by Victory in its sole discretion. End User’s request for such a value of a Unit shall not constitute notice of a total loss of a Unit. Victory reserves sole discretion to determine whether a Unit is a total loss or damaged beyond economic repair.

(e) Repair. In case of partial loss or damage to any Unit (other than for normal wear and tear), regardless of where it may have occurred, Victory shall make all repairs and/or replacements at End User’s expense in accordance with commercially, reasonable repairs and maintenance consistent with prudent industry practice standards for like equipment and intended-use and in accordance with Applicable Laws (“Repair Standards”). End User shall be liable to Victory for the total estimated or actual cost, as determined by Victory in its sole discretion, to repair any Equipment returned to Victory that is not repaired in compliance with the Repair Standards, provided that End User shall not be responsible for any normal wear and tear and routine, preventative maintenance. Victory reserves the right to not repair any non-functioning or damaged Equipment. End User shall remain responsible for Victory’s estimated cost of repairs under this provision, whether or not the damaged Equipment is actually repaired. End User shall not be entitled to any refund of any estimated cost of repair paid by End User should the actual cost of repair in fact be less.

(f) Indemnification.

(i) End User shall indemnify, defend, and hold harmless Victory, including its managers, officers, directors, employees, agents, affiliates, assignees, insurers and successors (collectively, “Victory Indemnified Party”) from and against any and all claims, losses, liabilities, obligations and expenses (including reasonable attorneys’ fees) (collectively “Claims”), in any way arising out of or incident to End User’s use, possession, maintenance, custody or control of the Equipment, and including, without limitation, any and all claims arising from or incident to: (A) the acts or omissions of End User, its agents, or assignees; (B) the performance, breach, or default of the Terms and Conditions by End User, or the enforcement of the Terms and Conditions by Victory; (C) death or injury to any person; (D) damage to any property; (E) damage to, or any damage or injury resulting from, any cargo placed on or contained in the Equipment; (F) the violation or alleged violation of any Applicable Law (as defined below), including, without limitation, any failure or alleged failure to use, operate, maintain or control the Equipment in compliance with Applicable Law; (G) any taxes and assessments, including, without limitation, all import and customs duties and all withholding, property, sales and/or use taxes, and all penalties; (H) any fines, tolls, user fees, traffic and parking violations, towing and storage expenses, and any other similar fines, fees or charges; and (I) the use, failure to use or inability to use any communication device provided by Victory. Notwithstanding the foregoing, End User shall have no obligation to indemnify any Victory Indemnified Party for any Claim to the extent such Claim has been finally adjudged to have been caused solely by the wanton recklessness or intentional misconduct of Victory. (ii) End User shall not settle or compromise any Claim against any Victory Indemnified Party, including, without limitation, any Claim for which End User has assumed the defense of any Victory Indemnified Party without the prior written consent of Victory.

(g) Laws, Rules, and Regulations. Applicable Law” shall mean any federal, state, local or foreign law, statute, rule, regulation, order, judgment, opinion or ordinance applicable to the use, possession, operation, maintenance or control of the Equipment, including, Sections 95300-95312 of Title 17 of the California Code of Regulations (“HDV Regulations”) and Section 2477 of Title 13 of the California Code of Regulations governs the operation of refrigerated Equipment in the State of California (the “TRU Regulations”). Except as provided otherwise herein, End User shall be solely responsible for (i) complying with any Applicable Law governing its use of the Equipment, including, all federal and state anti-pollution and environmental, transportation compliance, safety, and inspection requirements; (ii) any modification required to be made to the Equipment to comply with Applicable Law; and (iii) any fines, tolls, user fees, traffic and parking violations, towing and storage expenses and other similar fines, fees or charges relating to the Equipment arising out of or incident to the use, possession or control of the Equipment by End User. End User agrees to reimburse Victory for any fines, tolls, user fees, traffic or parking violations, towing and storage expenses and other fines, fees, penalties, or charges relating to the Equipment arising out of or incident to the use, possession or control of the Equipment by End User, plus an administrative fee.

(h) Taxes. All taxes and assessments, including all import and customs duties and all withholding, property, sales and/or use taxes, and all penalties or other charges or fees arising out of or incident to the use, possession or control of the Equipment by End User, shall be the responsibility of End User. In order to avoid the obligation to remit any applicable withholding, property, sales and/or use tax to Victory, End User must, upon Victory’s request, provide a duly authorized exemption certificate issued by or acceptable to the relevant taxing authority.

(i) Assignment. End User may not assign or otherwise transfer any right or interest in the Equipment without the prior written consent of Victory.

(j) Intellectual Property. Victory and/or its licensors reserve ownership of all intellectual property in and to the Equipment and services provided hereunder.

(k) Business Conducted Electronically. End User agrees to conduct business with Victory electronically, including, receiving any notices or disclosures.

(l) Default and Repossession. In the event of End User’s default of these Terms and Conditions, End User shall immediately return all Equipment to Victory. Victory shall have the right to enter upon any premises where the Equipment is located and take immediate possession of, and at End User’s expense, remove the Equipment. End User expressly waives the benefits of any Applicable Law exempting any licensed property from replevin, distraint, levy, or sale in any legal proceeding taken by Victory.

(m) Waiver. No waiver of any default, or omission or delay in exercising any of rights, or course of dealing between the parties shall operate as a waiver.

(n) Entire Agreement. These Terms and Conditions constitutes a complete, exclusive statement of the agreement between Victory and End User.

(o) Choice Of Law; Venue; Jury Trial Waiver. Ohio law, without regard to its choice-of-law provisions, governs these Terms and Conditions. Jurisdiction for any legal action arising from these Terms and Conditions shall exclusively reside in the state or federal courts located in or governing Clermont County, Ohio, and the parties hereby consent to the exclusive jurisdiction of such courts. VICTORY AND END USER EACH ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS AND CONDITIONS OR THE USE, POSSESSION, MAINTENANCE, CONTROL OR CONDITION OF THE EQUIPMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, VICTORY AND END USER EACH IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING THERETO.

(p) Survival. The provisions of these Terms and Conditions that by their nature extend beyond termination, including, indemnity, limitations of liability, damage and repairs to Equipment, choice of law, venue and jury trial waiver, shall survive termination.

(q) LIMITED WARRANTIES. NO WARRANTY, EXPRESS OR IMPLIED, IS MADE BY VICTORY OF THE QUALITY OF DESIGN, MANUFACTURE, CONDITION OR FITNESS FOR ANY PARTICULAR USE OF THE EQUIPMENT ORCOMMUNICATION DEVICE OR SERVICES. END USER WAIVES ANY AND ALL CLAIMS AGAINST VICTORY FOR ANY AND ALL LOSS OR LIABILITY (INCLUDING CARGO LOSS) RESULTING FROM ANY DEFECTS OR FAILURES OF DESIGN, MATERIALS, CONDITION, OR FITNESS FOR ANY PARTICULAR USE OF THE EQUIPMENT OR COMMUNICATION DEVICE OR SERVICES, EITHER LATENT OR PATENT. END USER WAIVES THE PROVISIONS OF ANY APPLICABLE LAW LIMITING OR PROHIBITING A GENERAL RELEASE WITH RESPECT TO ANY RELEASE OR WAIVER IN THESE TERMS AND CONDITIONS. VICTORY AGREES TO EXTEND TO END USER ALL WARRANTIES, IF ANY, OFFERED BY THE MANUFACTURERS OF THE EQUIPMENT, OR THE PROVIDERS OF ANY COMMUNICATION DEVICE OR SERVICES. VICTORY DISCLAIMS, AND END USER WAIVES, ALL OTHER WARRANTIES WITH RESPECT TO THE EQUIPMENT, COMMUNICATION DEVICES, AND COMMUNICATION SERVICES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION (i), THE EQUIPMENT, COMMUNICATION DEVICES, AND COMMUNICATION SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, FOR USE BY END USER AT ITS SOLE RISK.

(r) End User is responsible for determining whether the Equipment is fit and sufficient for the designated purpose for which End User intends to utilize such Equipment. END USER MUST INFORM VICTORY OF ANY INTENTION TO USE EQUIPMENT IN CALIFORNIA PRIOR TO USE THEREIN.

(s) Except as expressly set forth in these Terms and Conditions, End User: (i) is responsible for the condition, safe operation, continued inspection and ongoing maintenance of the Equipment; (ii) shall operate the Equipment in conformance with Applicable Law; (iii) shall maintain the Equipment at End User’s own expense in accordance with Applicable Law and the Repair Standards, in good condition, free from defects and fit for its designated purpose; (iv) shall promptly notify Victory regarding any mechanical failure or problem; and (v) is responsible for all damage to the Equipment. End User shall return all Equipment to Victory in the same condition as when first received by End User, normal wear excepted. End User shall not permit any Equipment to be transported outside the continental United States without the express permission of Victory.

(t) End User shall not: (i) use the Equipment for the transportation or storage of any human or animal remains or medical or biological waste, (ii) use the Equipment for the transportation or storage of any unprotected hazardous materials, (iii) permit the Equipment to be contaminated by any hazardous materials, or (iv) permit the Equipment to be used to transport hazardous materials in violation of Applicable Law. End User shall promptly notify Victory of the use of the Equipment for such purposes, the contamination of the Equipment with hazardous material, or the violation of any Applicable Law regarding the transportation of any hazardous materials. End User shall obtain Victory’s consent before decontaminating or cleaning Hazardous Materials from the Equipment.

(u) End user shall not remove, obscure, or alter any identification marks on the Equipment. All identification marks or logos applied to the Equipment by or for End User shall be removed and the surface restored at End User’s expense. End User shall make no structural alterations to the Equipment.

Revised 12/15/2022