FUEL FEE:
Machinery Equipment is always full of fuel when leaving for rental. If equipment is not full upon return (Customer will be charged $6.25 per gallon fee).
CLEANING FEE:
All Equipment is required to have excess mud and dirt removed from tracks before returning. If tracks are not cleaned (customers will be charged an additional fee).
RENTAL FEE:
All rentals are based on 8 hours per day, 40 hours per week, & 160 hours per month. Anything over stated hours (customer will be charged an additional fee).
SAFETY AND OPERATION:
Safety and operation instructions of all equipment are offered to all customers upon request. It is all customers' responsibility to review SAFETY and OPERATION instructions as well as TERMS and CONDITIONS of RENTAL AGREEMENT on the second page.
For good and valuable consideration, you and GEHMAN ENTERPRISE LLC of North Carolina, d/b/a "Mountain Rentals* (hereinafter, "MR, "Lessor," we," "us" and *our'):
1. As used herein, "P.1" refers to the first page or "face" of this Contract; "Contract refers to P.1 together with these Terms and Conditions "Rented Item or "Item(s)" means the items) rented (or if applicable, sold) to you, as identified on P.1 (including the "Instructions and/or safety devices described in Section (or "§") 5 below); "Site" means the delivery or use address set forth on P.1; and
"Customer," "Lessee," "you" and "your" mean the customer or "Lessee* identified on P.1.
2.You agree to rent the Rented Item(s) from MR for the period(s) specified on P.1 (the "Term*), and to pay us our stated rental rate(s) (the "Rent"), together with any other charges accruing hereunder, without proration, reduction or setoff, until all Rented Items) is/are returned to and accepted by MR (even if the rental is called off before our acceptance of return). Rental rates are for normal use of the Rented Items) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which rent is charged hereunder (each, a "Rental Day), 40 hours per 7-Rental Day period, and/or 160 hours per 28-Rental Day period. Additional prorated (hourly) Rent will be due for late returns and overuse. No allowance will be made for time in transit or other period(s) of nonuse. We have estimated the Rent based on your estimate of the length of the Term (the "Estimated Rent"). You agree: (a) to pay us: (i) the deposit, if any, specified on P.1 prior to commencement of the Term (the "Prepayment); and (ii) any additional amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount you owe us from any Prepayment; (ii) no interest will accrue on any such Prepayment; and (iii) no Prepayment will be deemed a limit of your liability to MR. Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed surrendered and abandoned.
3. MR owns and will retain title to all Rented Items at all times. You will have exclusive control over the Rented Item(s) during the Term; subject to your obligation to use it/them in full compliance with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); or (b) loan, transfer, sublease or assign any Rented Items) or this Contract, without the prior written consent of MR (in its sole discretion).
MR may sell and/or assign all or any part of its interests in the Rented Items) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of MR.
4. You will ensure that the Site is reasonably safe, secure and otherwise fit for delivery and use of the Rented Items) at all times. If we agree to provide any service(s) (including delivery and/or retrieval), you agree to: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at fic the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for any delays) caused by other parties, including providers of other equipment or services ("Other Providers*) for which you hereby hold harmless MR. If you are not present upon 1 delivery or retrieval of any Items), you agree to accept the statements of MR's representatives Y regarding the same (including status, condition, quality, freedom from defects and quantities).
5. WARNING: ONE OR MORE RENTED ITEM(S), INCLUDING ITEMS USED FOR LIFTING, LOADING, CUTTING, GRINDING, CHIPPING, SCRAPING, DIGGING, BREAKING, BORING, TOWING AND/OR HAULING CAN BE DANGEROUS. EXERCISE EXTREME CARE WHEN DEALING WITH SUCH ITEMS, AND ENSURE THEY ARE MOVED, STORED, MAINTAINED AND USED ONLY FOR ITS/THEIR INTENDED PURPOSE(S) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED, AND IF APPLICABLE, LICENSED, ADULTS. YOU AGREE TO PROVIDE ALL APPLICABLE TRAINING. FAMILIARIZATION, INSTRUCTIONS AND WARNINGS TO ALL USERS, OPERATORS AND OCCUPANTS OF THE RENTED ITEM(S), and ensure that each Item is used safely and only: (a) for its intended purpose(s) and in compliance with §§ 5, 6 and 8; (b) within its rated capacity; (c) at the Site; (d) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED AND/OR LICENSED (AS APPLICABLE ADULTS; and (e) otherwise in full compliance with this Contract at all times.
6. UPON THE earlier of Your receipt, or our delivery to the Site, of the Rented Item(s) unless you immediately reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (i) is appropriate for your purposes and in all ways acceptable to you; and (ti) was selected (not based on any recommendation by WR), carefully examined and inspected by you or your agents); and (b) you: () have received, carefully reviewed and understand all applicable laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all EPA, OSHA, MSHA, ASME, IBC, IEEE, ASSE. and/or ANSI Standards pertaining to such Items) (collectively, "Instructions ); (w) will fully comply therewith (including Tier 4, silica dust and electronic logging device ("ELD* requirements); (i) have been made aware of the need to use all recommended and required safety devices (including RESPIRATORY and FALL PROTECTION DEVICES; (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give any required notice(s) to, and obtain all necessary licenses, authorizations, permits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owners) of the Site, and ensure all underground lines, cables and conduits are clearly and properly marked before using any Items) to dig or disturb the ground surface (call 811 or 800-632-4949 and go to at least 3 full working days in advance); (vi) will immediately cease using any Item that is damaged, breaks down, or proves defective (a "Malfunction"); and (vii will ensure that all others comply with this Contract. You will notify us immediately if any of the foregoing shall be breached or becomes incorrect or misleading.
7. In the event of a Malfunction, you will immediately notify, and return the Malfunctioning Item to, us, and provided the Malfunction did not result from or in connection with any wrongful or negligent act or omission of, or any breach of any provision of this Contract by, you or anyone you permit to use or deal with such Items), we will, at our option: (a) repair the subject Item; (b) provide you with a comparable Item; or (c) return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. We will have no other obligation(s) with respect to Malfunctions, all of which you waive, together with all associated incidental and consequential damages.
8. You agree to protect, properly maintain and care for each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to TC on time, clean, free of contaminants (including without limitation, asbestos and silica) and otherwise in good order, condition and repair, properly serviced and maintained, and if applicable, full of the appropriate fuel, fluid and lubricants. If you fail to do so, then in addition to the amounts) set forth on P.1, you will pay to MR: (a) Rent for each succeeding full rental period until the Items) has/have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You will not, nor will you permit anyone else to: (i) abuse, misuse, overuse, remove from the Site, conceal, repair, modify, damage or destroy any Rented Items); (ii) violate any law, insurance policy or warranty; (iii) expose any Items) to any flammable, explosive, corrosive, or otherwise harmful or hazardous substance(s) or circumstance(s); or (iv) take possession of or exercise control over any Rented Items), without our prior consent (granted, conditioned or withheld in our sole discretion).
9. You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits of $1,000,000 per occurrence; (b) property damage/inland marine insuranccovering all Items for the full (new) replacement value thereof; and (c) for all rented vehicles and trailers, hired auto liability insurance with minimum limits of $1,000,000 and hired auto physical
damage insurance for actual cash value. Such policies shall, whenever possible: (i) name MR as an additional insured and loss payee; (ii) waive subrogation against them; (iii) be primary and non-contributory; and (iv) include such other provisions (including deductibles) as MR may require. You irrevocably appoint MR as your agent and attorney-in-fact for the purpose of submitting claims on all such policies.
10. WARRANTY WAIVER: MR IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE RENTED ITEMS, all of which are provided "AS-IS". MR MAKES NO WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANT: ABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN. QUALITY, CAPACITY, FREEDOM FROM DEFECTS, GOOD AND WORKMANLIKE PERFORMANCE, AND ANY WARRANTYIES) ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) regarding any Items) or Service(s) referenced in this Contract, nor does TC make any warranty(ies) against INTERFERENCE OR INFRINGEMENT, all of which you hereby waive. No depictions, models, samples, descriptions, specifications, recommendations or advertisements made or accepted by WR constitute representations or warranties by MR.
11, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, LOSS, PROPERTY DAMAGE, DESTRUCTION AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEMS) AND SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS AND DAMAGES ARISING IN CONNECTION WITH THE SELECTION, PROVISION, EXAMINATION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRA-TION, STORAGE, SERVICING, MAINTENANCE, DELIVERY AND/OR RETRIEVAL OF SUCH ITEMS) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT; (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MR, its parents, affiliates, partners and subsidiaries, and their respective shareholders, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an "Indemnitee") for, from and against all injuries, liabilities, claims, damages, losses, costs and expenses (including attorneys' fees) arising from and/or associated with such Items) and/or service(s) (including without limitation, any breach of this Contract, by you, your agents and/or employees); and (C) WAIVE all rights and remedies available under the Uniform Commercial Code, as well as all incidental, consequential. general, special, exemplary and punitive damages, against each and every Indemnitee
12. If and only if, we have offered, and you have elected to purchase our Optional LIMITED Damage Waiver ("LDW') and paid the non-refundable LDW Fee set forth on P.1 in advance of the Term, then only with respect to Items) covered by LDW ("Covered Items"), your liability for the cost to repair or replace such Covered Items will be limited as set forth in our Damage Waiver Guide and Addendum, a copy of which you acknowledge receiving and carefully reviewing. You may decline LDW if you fully comply with this Contract (including § 9). LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
13. Your duties hereunder are unconditional. If: (a) you and/or any guarantor shall: () fail to timely pay, honor, perform or comply with this Contract and/or any of your obligations arising hereunder; (n) provide any incorrect or misleading information to TCR; (i) become insolvent; or (iv) die or cease conducting business; (b) any Items) shall be lost or damaged (except to the extent covered by LDW. as provided in §12); or (c) MR deems itself insecure, you will be in default hereunder, whereupon, we may with or without legal process or notice (and without liability to you), to the maximum extent permitted under applicable law: (¡ terminate your rental(s); (i) seek relief from stay; (i) recover, empty, lock or disable any Items) without being guilty of breach or trespass, or liable for any injuries and/or property damage (for which you will indemnify, defend and hold harmless each of the Indemnitees identified in § 11); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor(s) (jointly and severally) our associated damages, losses, costs and expenses (including without limitation, Rent for the remainder of the Term and attorneys' fees); and/or (vi) pursue any other rights and/or remedies available hereunder, at law and/or in equity, all of which shall be cumulative.
14. To the maximum extent permitted under applicable law, you grant to MR a lien on all property: (a) placed in or on; and/or (b) improved with, any Rented Items). We may, without notice or liability to you, monitor and/or inspect (in person and/or electronically) any Rented Item(s) at any time, and all information generated thereby will be TCR's property. If any performance required of us is impaired as a result of any act or omission of/by you, any Other Provider(s) or any "Act of God' (any event, fact or circumstance beyond our reasonable control), we will be excused from such performance. You waive the benefits of any and all statutes of limitations regarding MR's rights and remedies. All amounts due hereunder but not timely paid will bear interest at the highest rate permitted under applicable law until paid. You authorize MR to charge all amounts coming due hereunder to any debit or credit card(s) You provide. You agree to pay MR the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability in connection with this Contract is limited to the amounts) actually paid by you hereunder. You agree to pay all taxes (including all sales, use and other taxes), fines, fees, assessments and other charges related to each Item. If either party brings legal action to enforce any provision of this Contract, the prevailing party in said litigation shall be entitled to recover its attorney's fees, costs, and expenses incurred in connection therewith from the non-prevailing party. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will constitute an election of remedies or a waiver of any rights and/or remedies available to MR. This Contract and any addenda provided by MR (including, if applicable, our forms of Aerial Equipment and Damage Waiver Addenda) each of which is incorporated herein, represent the entire agreement between you and MR, superseding all other agreements and representations (including MR's website and advertising). The terms of this Contract are severable. If any provision of this Contract is deemed invalid or unenforceable by any court of competent jurisdiction, such provision will be deleted, and the remainder of this Contract will remain valid and enforceable. This Contract cannot otherwise be amended or extended except in a writing signed by MR. You acknowledge that this Contract: ( constitutes a true operating lease, and not a financing; (ii) is fair and reasonable; (il) shall be enforceable only by you, GEHMAN ENERPRISE LLC the other Indemnitees, and such parties' respective permitted successors and assigns; and (iv) shall be interpreted and enforced under the laws of North Carolina, with proper venue for all associated civil legal proceedings lying solely in the federal, state and local courts located in or nearest to MCDOWELL County, NC (unless waived by MR). You consent and submit thereto, and waive all claims that such venue lies in an inconvenient forum. Time is of the essence. There are no third-party beneficiaries hereto other than the Indemnitees. These Terms and Conditions apply to the Items) identified on P.1. and also to all other Items you obtain from MR at any time (except only as otherwise agreed by MR).
15. THEFT WARNING: Obtaining property of another by false pretenses and/or damaging or failing to return rented property may be deemed theft. Doing so may result in CIVIL LIABILITY ANDIOR CRIMINAL PROSECUTION. See N.C.G.S. Ch. 14, Articles 16, 19 and 24, et seq. for details.