Additional Equipment Rental Terms and Conditions
Notwithstanding anything to the contrary contained in the Master Lease & Services Agreement by and between Customer and Contractor (the "Master Agreement") or any subsequent Purchase Order, Work Order, or other similar document, the following terms shall apply to the rental of Contractor's Units by Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the Master Agreement.
- CUSTOMER OBLIGATIONS
- Operation of Equipment. The Customer shall use the equipment rented to Customer by Contractor (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 weekly to assure it is in good working condition. The Customer warrants that: (1) it and its appropriate personnel will read and comply with all the safety instructions; (2) it has received and reviewed the Operator's Manual for the Equipment and understands the proper and safe operation and intended use of, and the maintenance requirements for the Equipment; (3) no person shall use or operate said Equipment if the operating instructions and/or safety/warning labels are missing, damaged, or in any way obscured; (4) its operators have been properly trained, and, if applicable, licensed, in the safe and proper operation and intended use of the Equipment; and (5) 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. THE CUSTOMER AGREES TO IMMEDIATELY NOTIFY THE CONTRACTOR 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 THE CONTRACTOR HAS COMPLETED ITS INVESTIGATION.
- Repairs and Risk of Loss. Customer is responsible for any damage, including but not limited to paint over spray, to the Equipment while in its possession or care, except for reasonable wear and tear. Without limiting the foregoing, Customer is 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 Contractor's written consent. If the Equipment is returned in a damaged or inoperable condition, Customer shall pay to Contractor the prevailing rental rate for periods during which the Equipment shall remain unavailable for rent. If the Equipment cannot be repaired to the same condition as when first delivered to Customer (excluding ordinary wear and tear) or the Equipment is lost, stolen, not returned to or not repossessed by the Contractor, Customer shall pay the Contractor's full list price for the Equipment in new and unused condition, plus applicable taxes.
- Compliance with Laws; Taxes. The Customer shall identify and comply with all laws, rules, regulations, local ordinances and orders relating to the operation of the Equipment (the "Laws"), and 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 while in the possession of or under loan to the Customer.
- Liens; Location of Equipment; Inspection. The Customer shall, on the Contractor's request, give the Contractor the exact location of all Equipment covered by the Contract and shall immediately notify the Contractor if anyone attempts to levy upon the Equipment, or if the Equipment becomes liable for seizure, and the Customer shall indemnify the Contractor 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, the Contractor shall have the privilege, at all times, of entering any job, building, or location where the Equipment is being used, for the purpose of inspection, and reserves the privilege of removing the Equipment immediately if they are being overloaded or taxed beyond their capacity or in any manner abused or neglected.
- Removal. The Customer must call the Contractor to schedule the Equipment's return or removal. The Contractor will attempt to schedule delivery/removal of the Equipment as requested by the Customer but rental Charges will continue until the delivery/removal of the Equipment is completed. The Customer shall pay additional removal Charges (including for failed attempts) if Equipment is not ready for the Contractor's removal or if there has been changes in the site's condition preventing such removal by Contractor. If delivery/removal of the Equipment cannot be accomplished due to safety concerns or potential damage, the Contractor's driver or agent may refuse to remove the Equipment and the Contractor can charge the Customer for such failed attempt. The Customer shall be responsible for cleaning the Equipment prior to their return to the Contractor, including removal of all hazardous materials, liquids or wastes placed into the Equipment during the rental period. Failure to clean the Equipment shall entitle the Contractor either (1) to reject return of the Equipment and charge the Customer additional rent or (2) to have the Equipment cleaned and any hazardous materials, liquids or wastes disposed of by a licensed third party vendor at the Customer's sole expense.
- No Subletting or Assignment. Without the express written consent of the Contractor, no Equipment shall be sublet, assigned, loaned to other parties, or removed from the location specified on any Work Order, Change Order or other writing, or removed from the location specified at the time of delivery of the Equipment.
- Title. Title to the Equipment shall at all times remain with the Contractor. 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.
- Obligations Upon Termination. Upon termination of the Agreement, the Customer shall promptly return all Units in accordance with the terms of the Agreement, and Customer shall pay all outstanding fees owed to Customer in connection with the Units or Services through the termination date. If Customer fails to promptly return the Units, the Contractor may enter any premises where the Units are located, repossess the Units, remove any locks on the Customer's property or the Units, remove the Contents without regard to their protection or pursue any other remedy available. The Customer irrevocably grants the Contractor unrestricted access to the Customer's property and permission to enter day or night, remove locks, disconnect attached utilities and repossess the Units. If a Unit is repossessed, the Contractor is approved in advance to remove the Contents or exercise its lien and hold the Contents, and the Customer shall have no claim against the Contractor for damage to the Contents. If the Customer does not pay all Charges due and remove all Contents from the Contractor's premises, the Customer grants the Contractor permission to dispose of/sell the Contents in accordance with applicable state law and apply net proceeds to unpaid Charges. The Customer releases and agrees to indemnify the Contractor and Contractor Related Parties from any claims for trespass, conversion or damages of any nature arising from such repossession of the Units. The Customer agrees to pay, as liquidated damages, the Contractor's collection expenses, repossession expenses, disposal expenses, attorney's fees and any other cost incurred by reason of any Event of Default or the exercise of the Contractor's remedies. Repossession of a Unit shall not relieve the Customer of the Customer's obligation to pay Charges owed under the Contract Documents. No remedy referred to is exclusive, and each shall be in addition to any remedy referred to in the Agreement or otherwise available to the Contractor. If the Contractor seeks to recover or repossess the Units by means of "writ of replevin" or similar method, the Customer waives any security or bond posting requirement prior to such process. Both 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.
- Insurance. Company shall be responsible for carrying commercial general liability including a waiver of subrogation, with limits not less than $1,000,000 Each Occurrence and $2,000,000 in the aggregate including products and completed operations as well as property insurance covering the Equipment rented. Such coverage shall name the Contractor 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. Company will provide Contractor with certificates of insurance evidencing the current coverage in types and amounts and from companies satisfactory to Contractor. These insurance requirements are intended to cover any indemnity obligations Company may have to the Contractor under this contract. Company hereby assigns to Contractor all proceeds from such insurance, conveys an equitable lien in said proceeds, and directs any insurer directly to pay such proceeds to Contractor and authorizes Contractor to endorse any drafts or checks for such proceeds. Neither Company nor its insurer shall have any claim (direct or subrogation) against Contractor. Company will provide prior to delivery or upon request a Certificate of Insurance naming Contractor as loss payee and additional insured with coverage equal to the Equipment replacement cost. The policy shall be acceptable to Contractor in its discretion and provide for 30 days' notice to Contractor prior to cancellation or modification.
- INSPECTIONS AND ACCEPTANCE OF THE UNITS. The Customer's receipt and possession of the Units constitutes the Customer's acknowledgment that it has inspected the Units and accepts the Units in good condition, working order and repair, and free from defects as adequate, sufficient, and proper for the purposes for which they are intended; unless the Customer notifies the Contractor to the contrary, in writing, within three (3) days of the Customer's receipt of the Units. The Customer's use of the Units constitutes a full and complete acceptance of the terms and conditions of the Agreement. If the Customer receives any of the Units 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 set forth in any invoices delivered to the Customer under the Agreement (the "Charges") shall not be affected by the Customer's inability to use the Units for any reason whatsoever.
- TITLE. Title to the Units shall at all times remain with the Contractor. The Units shall remain, "personal property", notwithstanding any use of the Units, or a part of the Units, on real property or improvements. The Units shall not be attached or affixed to real property.
- WARRANTY DISCLAIMER. The Customer leases the Units "as is." THE CONTRACTOR 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 UNITS OR OF THE CONTRACTOR'S FACILITIES OR COMPLIANCE WITH THE LAW AND THE CUSTOMER AGREES THAT THE CUSTOMER HAS SOLELY DETERMINED THAT THE UNITS ARE SUITABLE FOR THE CUSTOMER'S INTENDED USE.
- MASTER LESSOR.
- The Customer acknowledges that the Units listed in the Work Orders or Change Orders may be leased by the Contractor 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 Units 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 Units upon default of the Contractor 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 the Contractor for any reason whatsoever.
- ENVIRONMENTAL FEE. The Customer acknowledges that the Contractor may assess (a) a per item, per invoice environmental fee and (b) additional charges, as applicable, to cover the third party cost of cleaning the Units and disposal of any Hazardous Substances not removed by the Customer prior to return of the Units and to cover the handling and disposal of waste oil and other fluids used in connection with the operation and/or cleaning of the Units.