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Cleveland, OH
Brecksville, OH
800-524-DIRT -
Pittsburgh, PA
Cheswick, PA
412-767-9800 -
Mid-Atlantic
Sterling, VA
703-430-1005
This Agreement includes each piece of equipment described above and all attachments, accessories, replacement parts and safety items (“Equipment”), whether installed by or at the expense of Owner or Customer, and all proceeds thereof. Customer is responsible for all transportation/delivery, assembly, disassembly, and fuel costs.
Equipment may be rented daily (a day is 24 hours, or any portion thereof), weekly (a week is 7 calendar days from the Delivery Date), or for a 4-week period, and may be operated for the corresponding number of hours (“Allocated Hours”). Equipment rented daily may be operated for up to 8 hours per day; Equipment rented weekly, up to 40 hours per week; and Equipment rented for a 4-week period, up to 160 hours per 4-week period. Customer shall pay, in addition to Rent, an hourly overtime charge equal to: (a) if rented daily, 1/8 of the daily Rent; (b) if rented weekly, 1/40 of the weekly Rent; and (c) if rented for a 4-week period, 1/160 of the monthly Rent. Customer shall be responsible for all the time the Equipment is out, including Saturdays, Sundays, and Holidays. Customer shall pay Rent, as outlined on the Face Page, from the date Equipment is shipped by Owner (“Start Date”) to the date Customer returns Equipment to Owner (“End Date”). CUSTOMER WILL PAY THE FULL RENT FOR THE PERIOD EVEN IF CUSTOMER OPERATES ANY EQUIPMENT FOR LESS THAN THE FULL NUMBER OF ALLOCATED HOURS. Payment Terms are Net 30 or, subject to credit approval in advance of rental, due the last day of the rental period. Customer shall pay interest at 3% per month on any amount due under this Agreement and unpaid from the date such amount is due until the date it is paid. Customer's obligation to pay Rent and other charges is absolute and unconditional, regardless of any set-off, counterclaim, defense or other right which Customer may have or claim against Owner, or any interruption or cessation of Customer's use or possession of any Equipment.
If Owner delivers or picks up Equipment from Customer, Customer shall: (a) pay such delivery and/or pickup charge(s); (b) have a representative present at the Site at the agreed time; and (c) ensure that Owner has reasonable access to the Site. If Customer is not so present, Customer agrees to accept the statements of Owner's representatives regarding Equipment (including but not limited to, status, location, condition and quantities).
Upon execution of this Agreement (or upon later delivery of the Equipment, unless the same is immediately rejected), Customer represents, warrants, acknowledges and agrees that: (a) the Equipment: (i) has been carefully selected, examined, counted and tested by Customer; (ii) is in good repair and operating condition and is in all ways acceptable; (iii) has been delivered full of fuel and all necessary fluids and lubricants (as applicable); and (iv) is appropriate for Customer's purposes, not based on any recommendation by Owner; and (b) Customer: (i) has received, read, and understood any applicable training, instructions, warnings, user manuals, maintenance requirements, and other information for the Equipment before operating the Equipment (including training required under applicable Fire Codes, EPA, OSHA and/or ANSI Standards, if any) regarding the proper and safe transportation, installation, use, maintenance and storage of the Equipment; (ii) will fully comply therewith; (iii) has been offered all recommended and required safety equipment; (iv) will use the Equipment only for its intended purpose, in a reasonable and safe manner by a skilled, or if required by law or regulation, licensed and/or certified operator for the Equipment, who shall be an employee of Customer or, if Customer is an individual, may be Customer; (v) will advise the appropriate utility company, if applicable, mark all underground utilities and cables, and obtain all necessary licenses, authorizations, permits and approvals before digging or disturbing any ground surface; (vi) will immediately cease using any Equipment that malfunctions or proves defective; and (vii) will cause all other parties to comply with this Section. Additionally, Customer agrees not to compromise the integrity of any safety systems of the Equipment and shall provide additional safety guards or devices not included with any Equipment, which may be required by federal or state law, and any rule or regulation.
Customer shall cease using the Equipment and immediately notify Owner of any mechanical failures, damage to Equipment, and/or other conditions requiring repair. Customer shall not incur any expenses on Owner's account for the repair of any Equipment without Owner's prior written authorization. CONTINUED USE OF DAMAGED EQUIPMENT OR FAILURE TO NOTIFY OWNER, WHETHER CUSTOMER KNEW OR SHOULD HAVE KNOWN OF THESE CONDITIONS, WILL OBLIGATE CUSTOMER FOR ALL REPAIR COSTS INCLUDING WEAR AND TEAR.
Customer shall call to notify Owner on the date that Customer desires the rental period to terminate. Customer is responsible for Equipment until it is returned to or picked up by Owner. Equipment shall be returned to Owner full of fuel, in clean condition, and free of hazardous substances, with all attachments, accessories, replacement parts, and safety items, except for ordinary wear and tear from normal use and operation, as determined by Owner. If Equipment is not returned in such condition, Customer shall pay all costs for repairing, refueling and/or cleaning the Equipment. Any rental extension permitted by Owner beyond the originally estimated rental period as set forth herein shall extend the term of this Agreement on the same terms and conditions as set forth herein except that during any extension period Owner may retake possession of Equipment and terminate this Agreement, with or without cause, upon twenty-four (24) hours' notice. Equipment is not available for purchase unless a new Rental Purchase Option Contract or sale contract is installed.
As security for the prompt and full payment of rent, and the timely and complete performance of this Agreement, Customer shall pledge and deposit with Owner the deposit indicated on the face page of this Agreement (“Face Page”). Owner has the right, but is not obligated, to apply the deposit to cure any default under this Agreement. Owner's use of a deposit to cure a default does not excuse Customer from fulfilling all obligations herein. Upon termination of this Agreement, if Customer fulfills all the terms and conditions, Owner will return to Customer the remaining deposit, if any. For all Rentals/Equipment for which Owner requires a credit card for payment, Customer authorizes Owner to charge a security deposit to such credit card in the amount indicated on the Face Page.
If Customer cancels this Agreement prior to delivery for any reason, Customer agrees to reimburse Owner for any and all costs & expenses Owner incurs as a result of preparing Equipment for the anticipated rental, including but not limited to, labor, freight, permits, & parts.
Customer shall not make any modifications, additions, or changes in any Equipment (including but not limited to removal of Owner-identifying markers/decals) except with Owner's prior written consent. Customer shall pay for all repairs to Equipment at Owner's prevailing rates unless repairs are necessitated by normal wear and tear as determined by Owner. Customer shall maintain Equipment in accordance with machine operating and maintenance guides. Customer shall maintain Equipment in proper condition, providing fuel, oil, filters, lube, ground engaging tools, anti-freeze, replace broken glass, make adjustments for damaged tires, make adjustments for premature undercarriage wear, and all other repairs beyond the normal wear and tear, as determined by the Owner.
Allowable Tire wear is 2/32nds per 200 hours. Tires will be measured at start and end of rental.
Excessive undercarriage wear will be pro-rated based on the following average hours to pin and Bushing Turn, Segment Replacement, and pad replacement. D3 through D5: 2500 hours; D6 through D9: 3000 hours; D10 and D11: 3400 hours.
Owner is not the manufacturer or designed of the Equipment therefore ALL EQUIPMENT SHALL BE RENTED BY CUSTOMER “AS IS.” OWNER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, CAPACITY, FREEDOM FROM DEFECTS OR WORKMANLIKE PERFORMANCE) REGARDING ANY RENTED ITEM, SALE ITEM OR SERVICE PROVIDED BY OWNER, NOR DOES OWNER MAKE ANY WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT, ALL OF WHICH YOU HEREBY WAIVE. No agent, employee or representative of Owner has any authority to bind Owner to any warranty concerning any Equipment transferred under this section. Customer assumes all risk and responsibility for the selection of the Equipment as appropriate to achieve the results intended by Customer. Customer likewise assumes and shall bear the risk of loss and is responsible for all damages to Equipment, person or property from any cause whatsoever (including, without limitation, theft), regardless of whether the risk is insured, from the moment that Equipment is delivered to a common carrier at Owner's location and Customer shall bear the risk of loss until Equipment is redelivered to Owner's location. No credit shall be issued and Customer shall be solely responsible for Customer's inability to operate any Equipment caused by any act or omission of any nature, including but not limited to, fire or other casualty, delay in transportation of materials, weather conditions, delay in governmental approvals, labor disputes or any other cause beyond Customer's control.
Customer shall indemnify, defend and hold Owner and its successors and assigns, and their shareholders, directors, officers, employees, agents, and representatives (collectively, the “Indemnified Parties”) harmless against all loss, claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising out of, in connection with, or resulting from: (i) the use or possession of Equipment by Customer; (ii) personal injuries, property damage or other damage or loss whether caused by Customer, Owner or third parties, including, without limitation personal injuries to Owner's or Contractor's employees resulting from exposure to hazardous substances; (iii) Customer's negligence, gross negligence or willful misconduct, (iv) product defect (including latent defect) and product liability, (v) employees or their legal representatives, spouses, parents, dependents, next of kin and anyone otherwise entitled to receive damages for the injury or death of an employee of Customer; (vi) any breach of any representation or warranty made by Customer in this Agreement or in any other agreement between Owner and Customer; (vii) the breach by Customer of any covenant or agreement of Customer contained in this Agreement or in any other agreement between Owner and Customer; and/or (viii) the enforcement of this Section; and Customer shall reimburse Owner for any legal or other expenses reasonably incurred by it, when incurred, in connection with investigating or defending any such claims, demands, causes of action, fines, penalties, judgments, appeals, settlements, losses, liabilities or obligations. Customer shall provide Owner with prompt notice of any proceeding involving this indemnity and with any documents related to such proceedings.
Owner's sole liability and Customer's sole and exclusive remedy in any cause of action based on contract, tort or otherwise in connection with the Equipment, shall be: (i) if Equipment is not operational during any rental period for more than 24 hours, to issue a credit, prorated on an hourly basis based on the applicable Rental Rate, to Customer for any time during a rental period that Equipment is not operational, provided that Owner is immediately notified that such Equipment is not operational; (ii) replace Equipment with similar Equipment, subject to availability, as soon as reasonably possible; or (iii) terminate the rental of such Equipment. In no event shall Owner be liable to Customer or any third party for any claims, losses or damages arising from or related to this Agreement or the rental of Equipment. Owner shall not be liable for any special, indirect, consequential, punitive, liquidated, or incidental damages (including without limitation lost profits, loss of goodwill and business interruption) arising out of or related to this Agreement or the rental of Equipment. Customer waives and releases Owner from all other claims and damages arising out of any inability to operate any Equipment (including compensatory, anticipatory, consequential, exemplary and punitive damages) and all claims and damages sounding in tort, including negligence. Owner shall not be responsible to Customer for any loss, damage, or injury to Customer or any other party, caused by, resulting from or in any way connected with the failure of the Equipment, non-performance of the Equipment, or delay in delivery or other delay, or any defect in the Equipment, or from any other cause whatsoever, and all such claims are hereby specifically waived by Customer.
Customer agrees to maintain and carry, at Customer's sole cost, the following insurance: (A) Commercial Auto Liability Insurance with at least a per occurrence limit of $2 million; (B) Commercial General Liability insurance ("CGL") with limits of insurance not less than $2 million per occurrence and $4 million in the aggregate; (C) Property/Inland Marine/all risk physical damage insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment including, but not limited to, any boom or jib, overloading, misuse, earthquake, flood, explosion, overturn, accident, and acts of God, and (D) Workers' Compensation insurance providing coverage for statutory benefits and Employers Liability Coverage of $1,000,000 per occurrence, accident, employee or other statutory amount if higher and shall contain an All States endorsement. Customer shall obtain insurance policies that provide, or are endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by Owner. Customer shall name Owner, its successors and/or assigns as an additional insured and loss payee as its interests may appear for claims arising out of the maintenance, operation, or use by the Customer of equipment rented to Customer by Owner. Customer further agrees that the amount of insurance available to Owner shall be for the full amount of the loss up to policy limits of liability and shall not be limited to the minimum requirements of this Agreement. In the event any policy provided in compliance with this Agreement states that the insurance afforded to an additional insured will not be broader than that required by contract, or words of similar meaning, Customer agrees that nothing in this Agreement is intended to restrict or limit the breadth of such insurance. Any deductibles or self-insured retentions shall be the sole responsibility of Customer. All insurance required by this Agreement shall include a waiver of rights of recovery against Owner or its insurers by Customer and its insurers, as well as a waiver of subrogation against Owner or its insurers. The policies required hereunder shall provide that Owner must receive not less than 90-days' notice prior to any cancellation or 30 days' notice to Owner of any non-renewal, or material change in coverage. Customer shall: provide Owner with documented proof of all required insurance coverage, comply with all terms of any insurance policy, and notify Owner in writing immediately upon the occurrence of any loss, theft, destruction or damage of any Equipment. FOR RENTAL OF EQUIPMENT NOT LICENSED FOR ROAD USE, CUSTOMER SHALL NAME OWNER AS LOSS PAYEE EVIDENCING PROPERTY INSURANCE COVERAGE.
Owner alone owns and will retain title to all Equipment rented hereunder. Customer shall, at its own expense, protect and defend Owner's title against all liens, claims and encumbrances asserted by or through Customer and its creditors. Equipment shall remain personal property and shall not become a fixture or accession to real property, regardless of any attachment to real property. Customer shall not: (i) assign, encumber, sublet, or otherwise transfer any Equipment; (ii) assign or delegate any of its obligations under this Agreement; or (iii) lend or otherwise permit any Equipment to be used by anyone other than Customer or its employees. Any such action by Customer shall be void. Customer shall not part with possession of Equipment, either voluntarily or involuntarily, or remove Equipment from the original job-site location as stated on Face Page, or assign any right hereunder without Owner's prior written consent.
Owner shall have the right to inspect any Equipment at any time and, if necessary, Customer shall provide Owner with access to any Job Site for such purpose. If Owner determines, in its sole discretion, that Customer is misusing, abusing or neglecting the Equipment, Owner may: (a) terminate this Agreement, without notice, and remove the Equipment from the jobsite, or (b) perform the necessary maintenance and suspend further operation of the Equipment until said maintenance is complete. Customer shall pay Owner any and all costs and expenses incurred by reason of removing the Equipment from the jobsite and/or performing the necessary maintenance. Default by Customer shall occur: (i) if there is any misrepresentation made by, or breach of any warranty of, Customer contained in this Agreement or any other agreement between Owner and Customer; (ii) upon the breach by Customer of any covenant or agreement of Customer contained in this Agreement; (iii) if bankruptcy, insolvency, receivership, liquidation or dissolution proceedings are instituted by or against Customer, Customer makes any assignment for the benefit of creditors, Customer is unable to pay its obligations as they become due, or Owner, in good faith, believes that the prospect of payment of Rent or other charges due under this Agreement is impaired or Owner deems itself insecure; or (iv) if any Equipment is seized under legal process or becomes subject to a lien, claim or encumbrance asserted by or through Customer or any of its creditors. Upon a Default by Customer, Owner, at its discretion, may take one or more of the following actions: (i) terminate this Agreement and remove Equipment from the jobsite without notice; or (ii) exercise any and all remedies available at law or in equity. Customer shall reimburse Owner for all costs, including reasonable attorneys' fees, incurred by Owner as a result of any Default by Customer or otherwise enforcing this Agreement. In any proceeding by Owner to recover possession of Equipment, Owner shall not be required to post a bond or other security or undertaking, and Customer hereby waives any right to require, and any requirement for, any such bond or other security or undertaking.
CUSTOMER HEREBY EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE UNITED STATES OR ELSEWHERE TO APPEAR FOR DEBTOR AND, WITH OR WITHOUT ONE OR MORE DECLARATIONS FILED, CONFESS A JUDGMENT OR JUDGMENTS AGAINST DEBTOR IN FAVOR OF THE HOLDER HEREOF, AS OF ANY TERM, FOR THE UNPAID BALANCE, INCLUDING LATE CHARGES, FINANCE CHARGES, SERVICE CHARGES OR INTEREST AS WELL AS DAMAGE INVOICES AND THE SERVICE CHARGE OR LATE CHARGE OR OVERDUE RENTAL PAYMENT CHARGE BY WHATEVER NAME USED AND WHETHER INVOICED OR NOT, TOGETHER WITH COSTS OF COLLECTION AND REASONABLE ATTORNEY'S FEES FOR COLLECTION, WITH RELEASE OF ALL ERRORS AND WITHOUT STAY OF EXECUTION, AND INQUISITION AND EXTENSION UPON ANY LEVY OR REAL ESTATE IS HEREBY WAIVED AND CONDEMNATION AGREED TO AND THE EXEMPTION OF ALL PROPERTY FROM LEVY AND SALE ON ANY EXECUTION THEREON AND EXEMPTION OF WAGES FROM ATTACHMENT, ARE ALSO HEREBY EXPRESSLY WAIVED, AND NO BENEFIT OF EXEMPTION SHALL BE CLAIMED UNDER OR BY VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY HEREAFTER BE ENACTED.
In the event the Equipment is equipped with GPS DataLink, Customer understands that data concerning the Equipment, its condition, and its operation is being transmitted by such GPS DataLink to better serve Customer and to improve upon Owner products and services. The information transmitted may include: machine serial number, machine location, and operational data, including but not limited to: fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers, and installed attachments. Owner will not sell or rent collected information to any other third party and will exercise reasonable efforts to keep the information secure. Owner recognizes and respects Customer privacy. Customer agrees to allow this data to be accessed by Owner and/or its dealer.
This Agreement shall be effective on the Agreement date and shall continue until all Equipment is returned to Owner or it is terminated in accordance with this section. All notices hereunder shall be in writing; delivered by electronic mail, facsimile, commercial overnight or same-day delivery service with all delivery costs paid by sender, or by registered or certified mail with postage prepaid, return receipt requested; and addressed to Owner or Customer at its address indicated on the Face Page. Owner may terminate this Agreement for any or no reason by delivering written notice to Customer ten (10) days prior to such termination provided that if such termination is as a result of the breach by Customer, such termination shall be effective immediately. Customer's obligations shall survive termination of this Agreement and the return of all Equipment. No provision of this Agreement and no right or obligation of either party herein may be waived or amended except in writing signed by Owner and Customer. No waiver of any default, remedy or course of conduct shall operate as a waiver of any other prior or subsequent default, whether of the same or a different nature. Customer agrees that any claim against Owner arising out of or related in any way to this Agreement or the Equipment shall, at Owner's option, be settled by arbitration. This Agreement shall be governed by the laws of Pennsylvania. Customer agrees that any claims made by Customer shall be filed in the Court of Common Pleas of Alleghany County, PA or the U.S. District Court for the Western District of Pennsylvania, which Courts shall have nonexclusive jurisdiction of all such claims. Customer shall not assert that either of such Courts lacks personal jurisdiction over the Customer or request a transfer of venue from either of such Courts on the basis of improper venue or inconvenience. Customer consents to the transfer to either of such Courts, at Owner's request, of any claim, action or proceeding brought in any other court, forum or arbitral tribunal. If any provision of this Agreement is held invalid, the remainder of this Agreement will not be invalidated or affected thereby. The terms and conditions contained herein constitute the entire Agreement between Owner and Customer with respect to the subject matter hereof and supersede all previous oral and written communications and representations, including all other purchase orders or terms and conditions contained in any of Customer's agreements or forms. Any contrary terms contained in a purchase order or other writing from Customer are hereby rejected and superseded by the terms and conditions contained in this Agreement.
