TERMS AND CONDITIONS OF RENTAL CONTRACT - CEDAR EQUIPMENT RENTAL, LLC
LESSEE ACKNOWLEDGES THAT A LARGE-PRINT VERSION OF THESE TERMS AND CONDITIONS HAS BEEN MADE AVAILABLE TO LESSEE
Copyright © EquipmentRentalContracts.com, LLC. (866) 582-2586. All rights reserved. Unauthorized reproduction and/or distribution expressly prohibited. For good and valuable consideration, you and Cedar Equipment Rental, LLC, a Utah limited liability company
(hereinafter, “CER,” “Lessor,” “we,” “us” and “our”) agree as follows:
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 of Rental Contract; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” and/or safety devices provided per the terms of Section [or “ §”] 6 below); “Site” means the delivery or use address set forth on P.1; and “Customer,” “Lessee,” “you” and “your” mean the “Customer,” “Renter” or “Lessee” identified on P.1.
2. You agree to: (a) rent from CER the Rented Item(s) for the period(s) specified on P.1 (the “Term”); (b) fully and timely pay us as and when due the rental rate(s) set forth on P.1 therefor (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff; and (c) remain liable for all loss of and/or damage to the Rented Item(s) for the entire Term and until all such Rented Item(s) is/are returned to and accepted by CER in the proper return condition per § 7. Unless otherwise agreed in writing by CER, all Rental rates are charged for normal use of the Rented Item(s), 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, 160 hours per 28-Rental Day period (zero hours for all uncharged-for periods) in accordance with the terms of this Contract. Additional Rent will be charged as provided in § 7.(a) for late returns and overuse. You will not be entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder in order to account for time in transit, Act(s) of God, event(s) of force majeure or any other period(s) of unavailability or nonuse.
3. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”).
Unless otherwise agreed by CER in writing, you: (a) will pay us: (i) any deposit and the Estimated Rent specified on P.1 in advance (the “Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) agree that: (i) we may deduct any amount you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability under or in connection with this Contract; and (iv) all Prepayments are NON-REFUNDABLE except as provided in § 8. Anything remaining with, in or on any Item(s) upon return will be deemed surrendered and abandoned.
4. You shall ensure the Site is reasonably clean, safe, secure and otherwise fit for delivery and use of the Rented Item(s) 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 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 delay(s) caused by other parties, including providers of other equipment or services (“Other Providers”) for which you agree to indemnify, defend and hold harmless CER. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of CER’s representatives regarding the same (including status, condition, quality, utility and quantities of the Item(s) and the Site).
5. CER will retain title to all Rented Items at all times. You are granted exclusive control over the use of the Rented Item(s) during the Term, subject however, to your duty to fully and timely comply 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); (b) have any title or ownership interest in or with respect to any Rented Item(s); or (c) loan, transfer, sublease, re-rent, surrender, store, sell, encumber, assign or dispose of any Item(s) or this Contract, without our prior written consent (in our sole discretion). We may sell and/or assign all or any part of our interests in such Item(s) 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 CER or any TPO.
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; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by CER), carefully examined and tested by you or your agent(s); and (b) you: (i) have received, carefully reviewed and understand all training, instructions, user manuals, maintenance requirements, and other information, if any, including all applicable EPA, OSHA, MSHA, ASME, IBC, IFC, IEEE, ASSE, DOT, FMCSA and/or ANSI Standards (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust and Electronic Logging Device requirements); (iii) have been made aware of the need to use all recommended and required personal protective equipment and 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 and all 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 owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly marked before using any Item(s) to dig or disturb the ground surface ( call 811 or 800-662-4111, or go to www.bluestakes.org, at least 3 full business 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 at all times. You agree to immediately notify: (A) the local police, CER and the TPO (if any) in the event of any theft or accident involving any Rented Item(s); and (B) CER and the TPO (if any) if any of the other requirements of this Section shall be breached or proven incorrect.
7. You agree to protect, properly service, 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 CER on time at the end of the Term, complete, clean, free of contamination (including without limitation, silica, beryllium, asbestos and pathogens), and in good order, condition and repair, properly serviced and maintained, and if applicable, full of the appropriate fuel, fluids and lubricants. If you fail to do so, then in addition to the amounts set forth on P.1, you will pay us: (a) Rent at our highest incremental rate for each succeeding full rental period until all Item(s) have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS AND ALCOHOL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented Item(s); (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Rented Item(s); (v) take possession of or exercise control over any Rented Item(s), without our prior consent (in our sole and absolute discretion); or place or store in any Rented Item(s) (including trailers) any contraband.
8. In the event of a Malfunction as defined in § 6, you will immediately notify, and return the Malfunctioning
Item to, CER, and provided such 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 Item(s), we may, at our option: (a) repair such Item; (b) provide you with a comparable Item; or (c) solely with respect to the Malfunctioning Item, 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 direct and indirect liabilities, losses, claims and damages as
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provided in this Contract (including without limitation, § 11).
9. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS, AND SHOULD BE TRANSPORTED, SERVICED, MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR ITS/THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED, INSTRUCTED, 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 reasonably, safely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by CER on a case-by-case basis, 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.
10. NO WARRANTIES: CER IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE
ITEMS, all of which are provided “AS-IS”. CER MAKES NO WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND/OR CONTAMINATION, GOOD AND WORKMANLIKE PERFORMANCE, AND ANY WARRANTY(IES) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) regarding any Item(s) or Service(s) referenced in this Contract, nor does CER 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 CER constitute representations or warranties by CER.
11. INDEMNITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU HEREBY: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, LOSS, THEFT, DAMAGE AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, CLAIMS AND DAMAGES ARISING IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, STORAGE, CLEANING, CONTAMINATION, DISINFECTION, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL THEREOF (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, CEDAR EQUIPMENT RENTAL, LLC, its parents, affiliates
and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, representatives, subrogees, successors and assigns (each, an “Indemnitee”), for, from and against all such RISKS (including without limitation, attorneys’ fees) as well as any breach of this Contract by you, your agents, employees, contractors and/or invitees; and (C) WAIVE all rights, remedies, claims, damages and defenses available under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general, special, exemplary and punitive damages, against each and every Indemnitee.
12. You agree to maintain all insurance CER may require, including: (a) liability insurance with minimum limits
of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; and (c) for all automobiles and trailers included in the Rented Item(s), 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 CER as an additional insured and loss payee; (ii) waive subrogation against CER; (iii) be primary and non-contributory; and (iv) include a severability of interests clause and such other provisions (including deductibles) as CER may require. You irrevocably appoint CER as your agent and attorney-in-fact for purposes of submitting, negotiating and settling claims on all such policies.
13. If and only if, we have offered and you have purchased and paid for our OPTIONAL LIMITED DAMAGE WAIVER (“LDW”) (set forth on P.1, if available) prior to commencement of the Term, you will have no liability to us for 80% of the first $5,000 of repair/replacement costs for Item(s) covered by LDW (“Covered Item(s)”). You will, however, remain fully liable for: (a) all loss of and damage to: (i) Item(s) not covered by LDW; (ii) Covered Item(s) lost or damaged as a result of: (A) your breach of this Contract; (B) theft or other failure to timely return Covered Item(s) to us; (C) negligence, misuse and/or abuse of Rented Item(s) (including without limitation, submerging, overturning and overloading); (D) vandalism and/or malicious mischief; (E) use of alcohol and/or drugs; and/or (F) use of any Item in violation of any law, warranty or insurance policy; (iii) batteries, keys, glass, tires, tubes, tracks, booms, belts, chains, knobs, fittings, cylinders and/or hoses; (b) 20% of the first $5,000 of repair/replacement costs for Covered Item(s); and (c) all repair and replacement costs exceeding $5,000 in the aggregate across all Covered Item(s). You may decline LDW if you provide the property damage/inland marine insurance referenced in § 12. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
14. Any item(s) sold to you (“Sale Items”), as provided on P.1 are provided “ AS-IS” and are subject to the
terms of this Contract (modified to address sales), except that we will have no obligation under § 8 with respect to Sale Item(s). All item(s) not specifically identified as Sale Items on P.1 will be deemed to be “Rented Item(s)”. 15. Your Rental shall be deemed a “net” rental. Accordingly, your obligations hereunder shall be absolute and unconditional and shall not be subject to any present or future abatement, reduction, set-off, compensation, defense, counterclaim, cross-claim, interruption, deferment or recoupment, for any reason. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract, any other agreement(s) (“Other Contract(s)”) between you and any Indemnitee, and/or any of your obligations arising (t)hereunder or in connection (t)herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent or bankrupt; or (d) die or cease conducting business; if CER reasonably deems itself insecure; or if any Rented Item(s) shall be lost or, unless covered by LDW per § 13, damaged, you will be in DEFAULT under this Contract and such Other Contract(s), whereupon, we may with or without legal process or notice (and without liability to you), to the maximum extent permitted under applicable law: (i) cancel the Term and/or the subject Contract(s) (and/or your rights to use and possess the Rented Item(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict, shut down, disassemble and/or disable such Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage (for which you agree to indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations (t)hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor our associated direct and indirect damages, losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, overtime, loss of use, punitive damages for civil fraud if applicable, interest, attorneys’ fees, retrieval/repossession costs, and collection costs); and/or (vii) pursue any one or more other rights and/or remedies available (t)hereunder, at law and/or in equity, all of which are cumulative.
16. This Contract shall be governed by and enforceable under the laws of Utah. Disputes arising under and/or
in connection with this Contract and/or its subject matter, shall, at the sole option of CER, be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association at its office(s) located in or nearest to Iron County, Utah before a single arbitrator selected by CER. Judgment on the arbitrator’s award shall be final and binding on the parties hereto and may be entered in any court of competent
jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith shall lie exclusively in the federal, state and local courts located in or nearest to Iron County, Utah (unless waived by CER). You consent and submit thereto, and waive all claims that such venue lies in an inconvenient forum. EACH PARTY
VOLUNTARILY WAIVES ITS RIGHT TO TRIAL BY JURY.
17. This Contract, and any addenda(um) we provide (including without limitation, our Aerial Equipment
(MEWP), Forklift, and Trailer Addenda), each of which is incorporated herein, represent(s) the entire agreement
between you and CER, superseding all other agreements and representations (including our website and advertising). The terms of this Contract are severable. If any provision hereof shall be deemed invalid or unenforceable
by any court or arbitral body 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 CER. Time is of the essence. These Terms and Conditions apply to the Item(s) identified on P.1 and to all other Items you obtain from us at any time (except only as we otherwise agree in writing). You acknowledge that this Contract: (a) constitutes an operating lease, and not a financing; (b) is fair and reasonable; and (c) shall bind and be enforceable by you, Cedar Equipment Rental, LLC, the other Indemnitees, and such parties’ respective successors and permitted assigns (there being no other third-party beneficiaries hereto). You shall pay all taxes (including all sales, use, equipment, fuel and other taxes), tolls, fines, fees, assessments and other charges related to each Item and/or the transaction(s) referenced in this Contract. In the event legal action is commenced in connection herewith, we will be entitled to recover our costs and expenses associated therewith (including without limitation, our attorneys’ fees and expenses) from you if we prevail. 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 of our rights or remedies. To the maximum extent permitted under applicable law, you grant to CER: (a) a lien on all real and personal property: (i) placed in or on; and/or (ii) improved with, any Rented Item(s); and (b) the right to claim on any bond provided in connection therewith. 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 thereby obtained will be CER’s property. If any performance required of us is delayed or impaired as a result of any act or omission of/by you, any Other Provider(s), any “ Act of God,” event of force majeure, or any other event, fact or circumstance beyond our reasonable control, we will be excused from such performance. You waive the benefits of all statutes of limitations regarding CER’s rights and remedies. All amounts due hereunder but not timely paid will bear interest at the lesser of: (a) 18% per annum; or (b) the highest rate permitted under applicable law until paid. You authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide. You agree to pay us 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 amount(s) actually paid by you hereunder . Digital, electronic, photocopied and facsimiled signatures appearing on this Contract and/or any Addendum we provide will be deemed originals.
18. WARNING: Obtaining property available only for rent with the intent to avoid payment, and/or failing to timely return such property may be DEEMED THEFT, RESULTING IN CIVIL PENALTY(IES) AND/OR CRIMINAL PROSECUTION. See Utah Criminal Code §§76-6-409 and 410, et seq and its/their successor(s).