For the purpose of this Agreement (“Agreement”), including those items set forth on the Spiro Quote, Tech Ticket or Rental Agreement, “CO” means the person or entity printed on the face of any of these documents and its subsidiaries, owners, officers, directors, shareholders, and employees, and “Customer” shown as the renter or customer referred to on any of these documents, it’s agents and/or employees.
1. INDEMNITY/HOLD HARMLESS. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHELL INDEMNIFY, DEFEND AND HOLD CO HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIM, LOSS, DAMAGE OR COSTS INCLUDING WITHOUT LIMITATION ATTORNEYS FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATED TO BODILY INJURY, DAMAGES RELATED TO WRONGFUL DEATH; CAUSED BY OR IN ANY WAY ARISING OUT OF OR RELATED TO THE OPERATION USE, MAINTENANCE, CONSTRUCTION, POSSESSION, TRANSPORTATION OR RENTAL OF THE EQUIPMENT, OR PURCHASE OF PARTS OR SUPPLIES FROM CO, INCLUDING, WITHOUT LIMITATION, SUCH LIABILITY, CLAIM, LOSS, DAMAGE OR COST FOUND IT, IN WHOLE OR IN PART, UPON ANY NEGLIGENT OR GROSSLY NEGLIGENT ACT OR OMISSION OF CO OR THE PROVISION OF ANY ALLEGEDLY DEFECTIVE PRODUCTS BY CO. THIS INDEMNITY PROVISION APPLIES TO ANY CLAIMS ASSERTED AGAINST CO BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION, BREACH OF WARRANTY OR UNDER ANY OTHER THEORY OF LAW FOR WHICH INDEMNITY MAY BE GIVEN.
2. ASSUMPTION OF RISKS/RELEASE – DISCHARGE OF LIABILITY. CUSTOMER IS FULLY AWARE AND ACKNOWLEDGES THERE IS A SUBSTANTIAL RISK OF INJURY DEATH OR DAMAGE ARISING OUT OF THE USE OR OPERATION OF THE EQUIPMENT RENTED HEREUNDER AND OR PRODUCTS PURCHASED IN HEREBY VOLUNTARILY ENTERS AGREEMENT AND WITH FULL KNOWLEDGE THEREFORE ASSUMES ALL RISKS OF INJURY OR DAMAGE. CUSTOMER HERE BY RELEASES AND DISCHARGES CO FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FROM INJURY OR DAMAGE ARISING OUT OF THE USE OR OPERATION OF THE EQUIPMENT OR USE OF THE PRODUCTS; AND CUSTOMER FURTHER WAIVES, RELEASES AND DISCHARGES ANY AND ALL CLAIMS FOR INJURY OR DAMAGE AGAINST CL WHICH CUSTOMER OR ANY THIRD-PARTY OTHERWISE MAYBE ENTITLED TO ASSERT BY OR THROUGH CUSTOMER.
3. Receipt/inspection of Equipment and Products. Customer acknowledges that has inspected the equipment and or products prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer’s needs and purposes. Customer further acknowledges that Customer has inspected the propulsion tank of vehicles registered and licensed or required to be registered and license for use on the highway public road use, prior to taking possession thereof, and such propulsion tank contained no dyed fuel. Customer is familiar with the proper operation and use of each item of equipment and the products used in conjunction therewith. Customer is solely responsible for inspecting and securing the equipment and related products, including all hitches, bolts, safety chains, hauling tongues and other devices in materials used to connect the equipment to Customer’s towing vehicles. If any, Customer acknowledges CEO is not responsible for any damage to customers towing vehicle or the equipment caused by customers towing or movement of the equipment or use of the products.
4. Possession/Title. Customer’s right to possession of the equipment begins upon equipment leaving CO and terminates on the Agreed Return Date indicated on the front of the agreement. Retention of the possession after the state constitutes material breach of this agreement and Customer shall pay for the equipment while in Customer’s possession.
Time is of the essence of this agreement. If the equipment is not returned and or is Leavitt upon for any reason whatsoever, CO may retake said equipment without further notice or legal process and use whatever force is reasonably necessary to do so. Customer hereby agrees to indemnify, defendant hold CO harmless from any and all claims and cost arising from such retaking and/or levy. If equipment is levied upon, Customer shall notify CO immediately. Title to the equipment is and shall remain in CO.
5. Rental Period/Rate/Payment. Rental Period is for a maximum of twenty-four (24) hours unless a longer-term is specified in the Agreement Agreed Return Date on the front of this agreement rental rates are based upon single shift usage eight hours per day, five days per week, if customer makes greater use of the equipment it is agreed that the additional usage will be charged. Rental charges end upon return of the equipment to CO in an acceptable condition. No allowance will be paid for Saturdays Sunday’s holidays or time in transit, nor any period of time that the equipment may not be in actually use swollen customers possession. If the equipment is returned prior to the end of the minimum rental period, the rental due you shall be for the entire minimal minimum rental period. CO may terminate rental at any time and retake the equipment without further notice in case of violation by customer of any terms or conditions of this agreement.
Customer shall notify CO in writing at least twelve (12) hours prior to the equipment being off rent and shall obtain an “off rent” confirmation number from CO. If applicable, CO shall endeavor to pick up the equipment within a commercially reasonable period of time after the equipment is called “off rent”. Customer shall be liable for all damages to or loss of the equipment from the time the equipment leaves the CO facility until the equipment is returned to the CO facility, including any damage during transit to or from customers. In the case of the loss or destruction of any equipment, or inability or failure to return same to CO for any reason whatsoever, customer will pay CO that than full replacement cost of such equipment together with the full rental rate as specified until such equipment is replaced. If the equipment is returned in a damaged or excessively worn condition, customer shall pay CO the reasonable cost of repair and pay rental on the equipment at the regular rental rate until all repairs have been completed. CO shall be under no obligation to commence repair work until customer is paid to CO the estimated cost there therefore unless customer has paid in full all charges.
6. Ordinary Wear and Tear. Customer shall be responsible for all damage not caused from ordinary wear and tear. “Ordinary wear and tear” shall mean only the normal deterioration of the equipment caused by ordinary, reasonable and proper use of the equipment. Damage which is not “ordinary wear and tear” includes, without limitation: (a) damage resulting from the lack of lubrication insertion of proper fuel, or maintenance of necessary oil, water and air pressure levels; (b) except were CO expressly assumes the obligation to service or maintain the equipment and is being paid therefore as a separate item, any damage resulting from lack of servicing or preventative maintenance suggested in the manufactures operation and maintenance manual; (c) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rating capacity of the equipment; (d) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the equipment or any part thereof; (e) lack of cleaning, dirtying of equipment by paint, Mud, plaster, concrete, resin or any other material; (f) wear resulting from use of excess of shifts for which rented; and (g) any other damage to the equipment which is not considered ordinary and reasonable in the equipment rental industry. Repairs to the equipment shall be made to the reasonable satisfaction of CO and in a manner which does not adversely affect the operation, manufactures design or value of the equipment.
7 . Compliance with Laws/Use of Equipment. Customer agrees not to use or allow anyone to use the equipment or products for any illegal purpose or in any illegal manner or in an unsafe manner, customer agrees at his sole expense and expense to comply with all municipal, county, state and federal laws, ordinances and regulations which may apply to the use of the equipment. Customer further agrees to pay all licenses, fines, fees, permits or taxes arising from his use of the equipment, including any subsequently determined to be due.
Customer shall not allow any person who is not qualified, who has not received and does not understand safety and operating instructions and/or who does not utilize all safety equipment required, to operate or use the equipment or products. Customer shall not allow any person to use our operating equipment when it is in need of repair or when it is an unsafe condition or situation. Customer may not modify, miss use, harm or abuse the equipment; permit any repairs to the equipment without CO prior written permission.
Customer agrees to check filters, oil, fluid levels, air pressure, clean and visually inspect the equipment at least daily and to immediately discontinue use and notify CO when equipment is found to need repair or maintenance or is not properly functioning. Customer acknowledges that CO has no responsibility to inspect the equipment while it is in Customer’s possession.
Customer shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and license, or required to be registered and licensed, for use on any highway or public road. Customer shall not override or remove any safety devices that are part of the equipment or operate in a manner that is contrary to this agreement.
8. Disclaimer of Warranties. CO is not the manufacture of the equipment or the products sold to Customer and makes no warranty of merchantability or fitness for any particular use or purpose, are either expressed or implied. There is no warranty or representation that the equipment or products are fit for customers particular intended use, or that it is free of latent defects. CO shall not be responsible to customer or any third-party for any laws, damage or injury resulting from, or in any way attributable to the operation of, use of, or any failure of the equipment or products. CO shall not be responsible for any defect or failure unknown to the CO. Customer’s sole remedy for any failure of or defect in the equipment shall be termination of the rental charges at the time of failure provided the customer notify CO immediately if such failure and returns the equipment to CEO within twenty-four (24) hours of such failure.
9. Limitation of Liability. In no event shall CO be responsible to customer or any other party for any loss, damage or injury caused by, resulting from or in any way connected with the equipment or products, its operation or its use, COs failure to deliver the equipment as required hereunder, or COs failure to repair or replace nonworking equipment. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the equipment or products from the time to such items are delivered to Customer and Customer will take all necessary precautions to protect all persons and properly from injury or damage from the equipment and products, as applicable.
10. Subletting/Location of Equipment. Customer agrees not to Sublet, loan or assign the equipment. Customer shall not move the equipment from the address at which customer represented it was to be used.
11. Interest / Cost of Collection. Customer agrees to pay interest on all unpaid balances at the rate of 1.5% per month 18% per year. Additionally, Customer shall pay all reasonable cost of collection, court, attorney’s fees and other expenses incurred by CO in the collection of any charges due under this agreement or in connection with the enforcement of its terms, whether incurred directly by CEO or imposed by a third-party collection company, and whether as part of the lawsuit or in pre-suit collection. Customer agrees to pay any collection costs, whether those a third-party collection company or attorney’s fees incurred in collection of this account or in dispute arising out of this agreement.
12. Notice of Non-Waiver/Severability. A) Any failure of CO insist upon strict performance by customer of any terms and conditions of this agreement should not be construed as a waiver of COs right to demand strict compliance. Customer has carefully reviewed this agreement and waives any principal law which would construe any provision hereof against CO as the draftsperson of this agreement. The provisions of this Agreement shall be severable so that the unenforceability, invalidity or waiver of any provision should not affect any other provision; B) customer agrees to pay all reasonable cost of collection court attorney’s fees and other expenses incurred by CO in the collection of any charges due under this agreement or connection with the enforcement of its terms.
13. Miscellaneous. This agreement may be executed or delivered electronically or by facsimile.
14. Credit Card Payments. All payments made by credit card are subject to a 3% administrative fee as calculated against the total amount of the invoice value.
15. Damage Waiver. Customer’s repair or replacement responsibility in Section 6 of this Contract is modified by the Damage Wavier, if offered on the Equipment, and CO shall limit the amount CO collects from Customer for the Equipment loss, damage or destruction to the following amounts for each piece of Equipment, per each occurrence: (a) 15% of the MSRP for Lost Equipment, up to a maximum of $2500 per piece of Equipment; (b) 15% of the repair charges for incidental or accidental damage to Equipment, up to a maximum of $2500 per piece of Equipment; (c) nothing for the rental charges which would otherwise accrue during the period when damaged or destroyed Equipment is being repaired or replaced by CO or Lost Equipment is being replaced; provided however, the foregoing Damage Waiver liability reduction only applies if the Conditions (defined below) are satisfied and an Exclusion (defined below) does not apply. The Damage Waiver is NOT INSURANCE and does NOT protect Customer from liability to CO or others arising out of possession, control or use of the Equipment, including injury or damage to persons or property. THE DAMAGE WAIVER IS A CONTRACTUAL MODIFICATION OF CUSTOMER’S LIABILITY. All of the following “Conditions” must be satisfied for the Damage Waiver and the corresponding liability reduction to apply: (i) Customer accepts the Damage Waiver in advance of the rental; (ii) Customer pays 15% of the gross rental charges as the fee for the Damage Waiver (plus applicable taxes); (iii) Customer fully complies with the terms of this Contract; (iv) Customer’s account is current at the time of the loss, theft, damage or destruction of the Equipment; and (v) none of the Exclusions apply. Customer assumes the Exclusion risks, meaning that if any Exclusion occurs, the Damage Waiver does NOT reduce the liability of Customer to CO for the loss, theft, damage or destruction resulting from such Exclusion. “Exclusions” shall mean loss, theft, damage or destruction of the Equipment: (A) due to intentional misuse; (B) caused by Lost Equipment not reported by Customer to the police within 48 hours of discovery, and substantiated by a written police report (promptly delivered to CO); (C) due to floods, water level changes, wind, storms, earthquakes or Acts of God; and (D) accessories or Equipment for which Customer is not charged the Damage Waiver fee. THE EXCLUSIONS REMAIN THE LIABILITY OF CUSTOMER AND ARE NOT MODIFIED BY THE DAMAGE WAVIER. DAMAGE WAVIER IS REFLECTED ON THIS CONTRACT AS PART OF CUSTOMER’S ESTIMATED CHARGES UNLESS CUSTOMER HAS ELECTED TO DECLINE DAMAGE WAIVER IN WRITING, FAILS TO PAY THE DAMAGE WAIVER FEE OR MADE OTHER CONTRACTUAL ARRANGEMENTS WITH CO. Notwithstanding anything to the contrary in this Contract, if Lost Equipment is later recovered, CO retains ownership of the Equipment regardless of any payments made by Customer or Customer’s insurance company with respect to such Equipment, all of which payments are non-refundable. Customer agrees to promptly return any Equipment that is recovered. CO shall be subrogated to Customer’s rights to recover against any person or entity relating to any loss, theft, damage or destruction to the Equipment. Customer shall cooperate with, assign CO all claims and proceeds arising from such loss, theft, damage or destruction, execute and deliver to CO whatever documents are required and take all other necessary steps to secure in CO such rights, at Customer’s expense.