TERMS AND PROVISIONS OF RENTAL
- Commencement of Rental Period. Unless otherwise agreed upon in writing, the rental period shall begin on and include the Rental Start Date reflected on page one of this agreement or the date of bill of lading or shipment of the Equipment Rented to the Renter, whichever occurs first, and shall end on and include the date of return of the Equipment Rented to the Owner’s siding or receiving point. All rates quoted are F.O.B. Owner’s yard. Renter is responsible for the Equipment Rented from the time it leaves Owner’s yard until the time it is returned.
- Overtime. Should the equipment Rented be used for longer periods than that specified herein, overtime shall be paid as follows:
Daily basis: 1/8th of the daily rate for each hour in excess of 8 hours in any one day.
Weekly basis: 1/40th of the weekly rate for each hour used in excess of 40 hours in any one weekly period.
Cycle basis: 1/160th of the cycle rate for each hour used in excess of 160 hours in any cycle period of 28 consecutive days.
The Renter shall notify the Owner of any overtime use of the Equipment Rented. In the event Renter fails to notify the Owner within three days of the overtime used, the overtime rates shall be doubled. The Equipment shall be deemed in use for the total number of hours for a given shift, if the Equipment is assigned to any shift, or an operator is assigned to such Equipment for any shift.
- Payment. The person signing this Agreement and any other person, firm or organization to whom the person so signing directs that charges be billed shall each be deemed a Renter hereunder and shall be jointly and severally liable for the payment of all monies due or to become due under this Agreement. Owner shall have a lien to the extent allowed by law or any charges incurred hereunder upon the premises and improvements upon which the Equipment Rented was employed.
- Assurances and Default. In the case of default by Renter, or if Owner for any reason deems itself insecure, Owner shall have the right to enter the premises where the Equipment Rented is located and remove the same therefrom without notice or demand, and in such event Owner shall not be deemed guilty of any trespass and shall not be liable for any loss or damage caused by removal of the Equipment Rented.
- Renter’s Operators. Renter hereby certifies that all operators of the Equipment Rented are fully experienced in the use of the Equipment Rented and Renter further acknowledges that it takes full responsibility for such operator’s use of the Equipment Rented and shall indemnify and hold Owner harmless from any claims, damages, liabilities, and/or causes of action which may arise out of such operator’s negligent use of the Equipment Rented. Renter operators must meet all minimum training, educational and qualification standards imposed by local, state and federal law for operators of the Equipment Rented. Renter agrees to provide Owner with such qualification or certification documents pertaining to its operators upon demand by Owner.
- Delivery. All estimates of delivery time are approximate, and failure to effect shipment of an accepted order by such estimated delivery date will not be considered sufficient cause of cancellation without prior written agreement to such effect between the parties. Owner reserves the right to ship Equipment Rented via the most economical routing. If the Equipment Rented is shipped by other means pursuant to the Renter's request, Renter shall pay the difference in the rate of transportation. Delivery and pick up service is offered at established rates as a convenience only, and Renter is responsible for Agreement Equipment until it is picked up.
- Damage by Carrier. Should any of Equipment Rented be received and accepted by the Renter from any carrier in a damaged condition or any Equipment Rented be missing, it shall be the duty of the Renter to obtain from such carrier a written acknowledgment of the damage or shortage. The failure of the Renter to obtain such statement or acknowledgment upon its receipt and acceptance of Equipment Rented shall be treated as an acceptance of Equipment Rented in good, safe and serviceable condition, and fit for use and any damage or loss which has occurred to the Equipment Rented shall be repaired in accordance with Section 10 of this Agreement. If Equipment Rented is damaged or lost in transportation, and the Renter furnishes to the Owner a written detailed acknowledgment and statement from the carrier setting forth the character of damage and loss, Owner agrees to use its best efforts to have said damage repaired and loss replaced within a reasonable time, but Equipment Rented shall be deemed to have been delivered on date of acceptance hereof by such carrier.
- Cancellation of Equipment Orders. Cancellation or suspension of orders for Equipment Rented will be accepted by Owner only upon terms that will indemnify Owner for liabilities and expenses incurred and for commitments made by Owner. Postponement of deliveries at Renter's request, if for a period of more than thirty (30) days, will not be made without Owner's approval first being obtained. This provision shall not preclude Owner from recovering all damages and costs of whatever nature permitted under the Uniform Commercial Code.
- Maintenance. Renter agrees to maintain Equipment Rented in the same condition as when delivered by Owner, and to pay all claims and damages arising from defects therein or from the use of handling Equipment Rented, whether from injuries to person or property and to pay for all damages to Equipment Rented, except the usual and ordinary wear and tear during the Agreement term. Renter shall at its own expense be responsible for all normal basic service, adjustments, and lubrication of the Equipment Rented in its daily operation, including but not limited to (a) the making of a routine check of Equipment Rented at the beginning of each shift; (b) supplying all necessary fuel (gasoline, diesel fuel, electric current, L.P. gas, or other fuels), oil, oil filters or elements, water and anti-freeze; (c) check daily the oil level in the crankcase and automatic transmission and water in the cooling system and adding oil and water when necessary, and checking daily the air cooled equipment and machinery; (d) checking weekly the air pressure of pneumatic tires; (e) if Equipment Rented is battery powered, maintaining the proper level of water in the batteries and properly recharging the batteries; and (f) if Equipment Rented is powered by L.P. gas, furnishing and storing L.P. gas fuel and cylinders and changing such cylinders as required.
- Limitation of Liability. In the event of a notice to the Owner by Renter that Equipment Rented is not in good, safe and serviceable condition, and fit for use upon its arrival, Owner shall have the right to put Equipment Rented in good, safe and serviceable condition within a reasonable time, or to cancel this Agreement. OTHER THAN OWNER’S ELECTION TO REPAIR OR REPLACE SUCH EQUIPMENT RENTED, OWNER AND RENTER AGREE THAT OWNER SHALL NOT BE LIABLE FOR, AND RENTER’S OBLIGATIONS HEREUNDER SHALL NOT BE DIMINISHED BECAUSE OF, ANY LOSS, CLAIM, DEMAND, LIABILITY, COST, DAMAGE, EXPENSE, LOSS OF BUSINESS PROFITS, OR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, WHETHER ARISING IN TORT, CONTRACT, WARRANTY OR STRICT LIABILITY OF ANY KIND TO RENTER, ITS CUSTOMERS, OR ANYONE ELSE CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY BY EQUIPMENT RENTED, ANY INADEQUACY THEREOF FOR ANY PURPOSE, AND DEFECT THEREIN, THE USE OR MAINTENANCE THEREOF, ANY REPAIRS, SERVICING OR ADJUSTMENTS THERETO OR ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE THE SAME, ANY INTERRUPTION OR LOSS OF SERVICE OR USE THEREOF, ANY ACCIDENTAL BREAKAGE, ANY LOSS OF BUSINESS, PROCEEDS, OR OTHER CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE.
- Required Inspections. The Renter agrees to pay all charges for work or inspections required by any labor union or any governmental authority. The Owner may, at its option, refuse to do any repair work on Equipment Rented in time of strike, or any other cause beyond its control, or in violation of any rule affecting the Equipment Rented. The Owner reserves to right to remove Equipment Rented from the job at anytime when, in its opinion, Equipment Rented is in danger because of strikes or any other condition.
- Taxes and Other Charges. The Renter agrees to comply with and conform to all municipal state and federal laws relating to the operation of Equipment Rented and to pay all costs and expenses of every character occasioned by or involving the use or operation of Equipment Rented and to pay all legal assessments, taxes or public charges, either local, municipal, state or federal, which may be levied on Equipment Rented while in the possession of the Renter including any personal property taxes due and payable on the Equipment Rented.
- Loss to Equipment Rented. Renter agrees to reimburse the Owner for all losses and damages to Equipment Rented occasioned by fire, theft, flood, accident, explosion, wreck, or other cause that may occur during Agreement term. For the purpose of determining the valuation of Equipment Rented in order to determine the loss, damage or injury thereto, the parties agree that the value as stated above shall be the true value, and that no rentals paid or due shall apply to the payment of such loss. In addition, in the event of any loss or damage to Equipment Rented rendering it unfit for use beyond the Agreement term, Renter shall pay to the Owner the value of the monthly rental as established by this Agreement multiplied by the number of months necessary to replace or repair Equipment Rented. Owner shall use reasonable efforts in replacing Equipment Rented. Repairs shall be governed by Section 14 of this Agreement.
- Repair of Equipment Rented. In the event of accident to or breakage of Equipment Rented, other than normal maintenance, Renter may have Equipment Rented repaired by any competent person, firm or corporation at its own expense only with prior written notice to and the consent of Owner. In the alternative, Owner may repair Equipment Rented for the Renter, using its best efforts to make said repairs or replacement in the shortest possible time. The Renter agrees to pay the Owner its regular charges for any material or labor furnished in making said repairs upon demand including the cost of transporting the Owner’s repairman to the job site. In the event any work is done outside of Owner’s regular hours, all overtime or excess repair charges will be paid by the Renter to the Owner. Renter agrees to continue to pay rent on Equipment Rented returned in a damaged condition.
- Force Majeure. Owner shall not be liable for any loss, damage, delay, changes in shipment, schedules or failure to deliver, whether arising in tort, contract or warranty, caused by accident, fires, strikes, riots, civil commotion, embargoes, failure of carriers, inability to obtain transportation facilities, foreign or local governmental requirements, acts of God, prior orders from customers or limitations on Owner's or its suppliers' production or any other causes of contingency beyond Owner's control. In such event, Owner shall not be liable for any consequential, incidental or special damages to Renter. Owner may, at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which performance hereunder is due.
- Indemnification. The Renter further agrees to indemnify the Owner against all loss, damage, expense, including reasonable attorney’s fees, and penalty arising from any action on account of any injury to person or property of any character whatsoever occasioned by the operation, handling or transportation of Equipment Rented during the rental period and while in the possession or under the custody and control of Renter. Renter waives without reservation any defense or immunity it may have under any applicable workers’ compensation law or statute or judicial decision in any jurisdiction disallowing or limiting such indemnification, including, as applicable, the immunity under Section 4123.74 of the Ohio Revised Code and Article II, Section 35 of the Ohio Constitution.
- Title to Equipment Rented . The title to Equipment Rented and to all replacements thereof or substitution thereof is and shall remain in the Owner. Equipment Rented shall not become a part of any building by being placed therein or by being annexed thereto. Where Equipment Rented is annexed to any property, the Renter shall furnish the Owner with a landlord’s release, which shall permit the Owner to remove Equipment Rented from said property at any time during the term of, or after the expiration of, this Agreement. Should the Renter not obtain said landlord’s release within five days, the Owner reserves the right, and the Renter hereby grants permission to the Owner, to obtain such release. If requested by Owner, Renter agrees to execute appropriate UCC-1 Financing Statements evidencing Owner’s ownership of the Equipment Rented and the Agreement of the same to Renter.
In the event Renter has a purchase option under the Agreement, Renter shall not receive title to the Equipment Rented from Owner until any and all amount due and owing from the Renter to the Owner are paid in full.
- Location of Equipment Rented. The Renter agrees, whenever requested by Owner, to give Owner the exact location of all Equipment Rented, and further agrees to give Owner immediate notice of any levy attempted upon Equipment Rented. If Equipment Rented becomes liable to seizure from any cause, Renter agrees to indemnify Owner against all loss and damages caused by any such action. Renter also agrees to notify Owner whenever Equipment Rented is moved to a different location. The Owner shall have the privilege at all times of entering any job, building or location where Equipment Rented is being used for the purpose of inspection and reserves the privilege of removing Equipment Rented on twenty-four hours’ notice if it is being overloaded or taxed beyond its capacity or in any manner abused or neglected in the Owner’s sole judgment.
- Subletting of Equipment Rented. Under no circumstances may Equipment Rented be sublet without prior written consent of the Owner. Owner reserves the right to refuse to give such consent if in Owner’s sole discretion the use of Equipment Rented may in any way be adversely affected. In the event of subletting, Renter shall, nevertheless, remain primarily liable to perform the obligations imposed on Renter hereunder. Renter agrees to reimburse Owner for reasonable attorneys’ fees incurred with the processing and documentation of any requested subletting of Equipment Rented.
- Violation of Agreement Terms. Should any of the provisions of this Agreement be violated by Renter, the rental for the entire period herein specified shall become forthwith due and payable, and the Owner, or its agents may, without notice, enter the premises occupied being a trespasser thereon and take possession of and remove Equipment Rented with or without process of law. Renter agrees that if any of the Agreement provisions are violated and Owner demands the return of Equipment Rented, that this Agreement shall constitute authority to the watchman or other persons responsible for Equipment Rented to deliver all or any part of Equipment Rented to the Owner or its agent. In the event any action as set forth herein becomes necessary, the Renter agrees to pay, in addition to other charges herein specified, all costs of removal of Equipment Rented from the possession of the Renter and all freight, demurrage, storage, switching, drayage, trackage, labor or other charges on or against Equipment Rented incurred during or by the removal, shipping and return to the possession of the Owner, at his designated receiving point, or equivalent point designated by the Owner.
- Return of Equipment Rented. Renter agrees, at its expense, to return Equipment Rented in as good condition as when received to the storage yard of the Owner or receiving point designated by Owner, usual and ordinary wear and tear excepted, and to pay all freight, demurrage, storage, switching, drayage, trackage, labor or other charges against Equipment Rented from the time the same shall leave the storage yard of said Owner up to and including the time of its return to said storage yard or other place of return as described herein. Renter further agrees that it shall give Owner twenty-one (21) days prior written notice before returning the Equipment Rented to Owner.
- Payment. The Renter agrees to pay all rentals when they are due and for all services and materials furnished and all damages and sums due the Owner under this Agreement as soon as the loss occurs or services are rendered or materials are furnished. The taking of notes, or renewals thereof, covering rentals herein specified shall not in any manner whatsoever change or invalidate the terms and conditions of this contract. Any unpaid balance after thirty (30) days shall be subject to a late fee of one percent (1%) per month.
- No Agency Relationship. Renter shall not be deemed any agent or employee of Owner in any manner or for any purpose whatsoever, nor shall Renter's use of Owner's Equipment Rented create an agency or employment relationship in any manner or for any purpose whatsoever.
- Cost of Collection. If Renter defaults with respect to any payment described here and above, it shall pay Owner for all costs and expenses, including legal costs, expenses and attorney's fees, incurred by Owner in exercising any of its rights or remedies.
- Modifications. Both the Owner and the Renter agree that no modification of this Agreement shall be binding upon them or either of them, unless such modification shall be in writing and duly accepted in writing.
- Governing Law and Jurisdiction. This Agreement, and the rights and obligations hereunder, is to be governed by the law of the state of Ohio, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Any suit, action or proceeding arising hereunder shall be instituted by either party in the courts of the State of Ohio, Hamilton County, or United States District Court for the Southern District of Ohio, Western Division and Owner and Renter irrevocably and unconditionally submit and consent to the jurisdiction and venue of any such court for such purpose, and each waives any obligation it may have as to the venue of any dispute arising out of or in connection with this transaction.
- Construction. This Agreement is intended by the parties as a final expression of their agreement and is a complete and exclusive statement of its terms. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Any additional, contradictory or different terms contained in any initial or subsequent purchase order, order confirmation, or other communication from Renter pertaining to the Equipment shall be of no effect. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of this Agreement other than those specifically set forth herein. Any clerical errors made hereunder are subject to correction. No agent, salesman or other party is authorized to bind Owner by an agreement, warranty, statement, promise or understanding not herein expressed.
- Acceptance. THE RECEIPT AND ACCEPTANCE BY THE RENTER OF THE EQUIPMENT RENTED SHALL CONSTITUTE ACKNOWLEDGMENT THAT EQUIPMENT RENTED HAS BEEN ACCEPTED AND FOUND IN GOOD, SAFE AND SERVICEABLE CONDITION, AND FIT FOR USE. IF SHIPMENT OF EQUIPMENT RENTED IS ORDERED BY RENTER, WHO NEGLECTS TO RETURN THIS AGREEMENT SIGNED, THE DELIVERY OF THE EQUIPMENT RENTED TO RENTER AND RENTER'S RECEIPT THEREOF SHALL CONSTITUTE RENTER'S ACCEPTANCE OF THIS WRITTEN AGREEMENT WHICH SHALL CONTROL THE RIGHTS OF THE PARTIES.
Rental Equipment Service Policy
Upon receipt of any piece of rental equipment from F&M Mafco, Inc., the customer assumes responsibility for the following service items:
- Completion of all preventive maintenance checks and services that come due during the operation of the equipment. This includes servicing of all fluids and filters at the proper intervals and in accordance with manufacturer’s guidelines.
- Completion of all periodic inspections and adjustments in accordance with the manufacturer’s guidelines and as dictated by the conditions of equipment operation.
- Completion of all repairs deemed minor by F&M Mafco, Inc., i.e., hose replacement, belt replacement and minor electrical component repair/replacement. F&M Mafco, Inc. will supply the parts for these repairs.
- Service and repair of all accessories, i.e., cab heaters, block heaters, back-up alarms, wipers, lights, etc. F&M Mafco, Inc. will supply the parts only.
All other repairs that are not included in the above four headings may be performed by F&M Mafco service personnel during normal working hours - 7:00 a.m. to 4:00 p.m., Monday thru Friday. For any repairs not included in the above four headings and, by customer request, are to be performed after normal working hours, the labor charge that is in excess of straight time will be billed to the customer. Upon their arrival on the jobsite, field service personnel should be given access to work on the rental equipment within a reasonable amount of time (usually one hour). Any excessive time taken to allow this access, will be chargeable to the customer.
F&M Mafco, Inc. assumes no responsibility for labor back charges due to equipment downtime.
The following definitions apply when assessing damages and repairs to rental equipment.
Normal Wear and Tear: Damage to, deterioration of and/or failure of equipment and/or its components resulting from normal operation of the equipment. Normal operation is defined as operation of the equipment in accordance with the manufacturer’s specifications and in compliance with the manufacturer’s prescribed operating procedures (normally found in the operator’s manual). Examples are worn brake linings and broken drive belts.
Unscheduled Maintenance/Failure: Failure of equipment and/or its components due to material failure and during normal operation. The equipment failed even though it was properly serviced, maintained and operated in accordance with manufacturer’s recommendations and specifications. Typical cause of these problems is manufacturer’s defect.
Equipment Abuse and/or Neglect: Damage to and/or failure of equipment and/or its components resulting from one or more of the following:
- Improper use (other than normal operation) of the equipment.
- Exceeding the manufacturer’s design specifications of the equipment.
- Improper handling, storage and/or transport of the equipment.
- Inadequate or improper servicing of the equipment.