1. DEFINITIONS - The "Lessor" means Champion Equipment, LLC, the entity on the front page from whom the Customer has rented the Equipment. "Equipment" means any one or more of the items identified as such on the front page of this agreement, and shall include any accessories, attachments or other similar items delivered to Customer, including, but not limited to, air hoses, electric cords, blades, welding cables, fuel tanks, and other similar items. "Customer" means the person or persons identified on the front page of this agreement, including any representative, agent officer or employee thereof. "Store Location" means the Lessor's address identified on the top of the front page of this agreement.
2. AUTHORITY AND ENFORCEABILITY - Customer represents and warrants that it has full power and authority and, if an individual, legal capacity to execute this agreement is a valid binding obligation of Customer enforceable against Customer in accordance with its terms.
3. DISCLAIMER OF WARRANTIES - THE EQUIPMENT IS LEASED BY LESSOR TO CUSTOMER "AS IS, WHERE IS." LESSOR IS NOT A MANUFACTURER AND LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE DESIGN, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR SUITABILITY OF, OR ANY WARRANTIES AGAINST LATENT, HIDDEN, AND/OR REPOSITORY DEFECTS OF, THE EQUIPMENT OR ANY PART THEREOF. BY EXECUTION AND PERFORMANCE OF THIS RENTAL AGREEMENT, LESSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS AGREEMENT.
4. INDEMNIFICATION - Customer acknowledges and assumes all risks inherent in the operation and use of the Equipment by Customer and will take all necessary precautions to protect all persons and property from injury or damage while in possession of the Equipment. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, CUSTOMER AGREES TO PAY TO LESSOR AND TO KEEP LESSOR INDEMNIFIED, DEFENDED, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS AND EXPENSES, INCLUDING LEGAL FEES AND EXPENSES, RESULTING FROM OR IN ANY WAY RELATED TO THE EQUIPMENT, INCLUDING THOSE ARISING FROM ACCEPTANCE OR REJECTION, POSSESSION, USE, MAINTENANCE, INSTRUCTION, OPERATION, REMOVAL, RETURN, TRANSPORTATION, DELIVERY OF EQUIPMENT, AND FOR ANY DEFECTS OF THE EQUIPMENT, BUT SPECIFICALLY EXCLUDING, WITHOUT LIMITATION, ANY OF SUCH AS MAY ARISE FROM PATENT OR LATENT DEFECTS THEREIN, ANY CLAIMS BASED ON STRICT LIABILITY IN TORT, EXCEPT TO THE EXTENT THAT SUCH LIABILITY RESULTS FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR.
5. DAMAGES - CUSTOMER WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT OR INFRINGEMENT) AGAINST LESSOR FOR LOSS OF BUSINESS, PROFITS OR GOODWILL, OR OTHER INCIDENTAL EXPENSES. CUSTOMER SHALL HAVE NO CLAIM AGAINST LESSOR FOR LOSS OF BUSINESS, INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES OR EXPENSE CAUSED BY, RESULTING FROM, OR IN ANY WAY CONNECTED WITH, THE EQUIPMENT, OR BY ANY DEFECT WITH THE EQUIPMENT, OR FOR ANY DAMAGE TO CUSTOMER'S BUSINESS, PROPERTY OR FACILITIES WHICH MIGHT BE CAUSED BY LESSOR'S FAILURE OR INABILITY TO DELIVER ANY EQUIPMENT BY ANY SPECIFIED DATE OR TIME.
6. RECEIPT & INSPECTION OF EQUIPMENT - Customer acknowledges that Customer has inspected the Equipment prior to taking possession of it and that it is in good working order and condition. Customer acknowledges the duty to inspect, prior to taking possession and use of each item of Equipment. Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues and other devices to ascertain that they are sufficient to safely transport the Equipment. Customer is responsible for inspecting and repairing any damage to Customer's towing vehicle caused by detachable hitches or mirrors. If requested by Lessor, Customer agrees to execute and deliver a Certificate of Inspection satisfactory to Lessor regarding the condition of any and all Equipment.
7. USE OF EQUIPMENT - This agreement is a commercial lease. Customer represents and warrants to Lessor that the Equipment is leased and will be used for business and/or commercial purposes and not for any personal or private purpose. Customer will not use or allow anyone else to use the Equipment for any personal, family or household purpose. If the Equipment is to be operated by Customer or anyone else not qualified and trained to operate it, Customer agrees, at Customer's sole expense, to comply with all applicable municipal, state, and federal laws, ordinances and regulation (including O.S.H.A.) which may apply to the use of the Equipment. Customer agrees to check filters, oil, fluid levels, tire pressure and all other fluid or gas levels required for the safe and legal operation of Equipment. Customer is responsible for all maintenance. Customer acknowledges that Lessor has no responsibility to inspect the Equipment while it is in Customer's possession.
8. MALFUNCTIONING EQUIPMENT - If the Equipment becomes unsafe, malfunction or require repair, then Customer shall immediately cease using it and immediately give notice to Lessor. In the event of a breakdown, Lessor, at its election, will repair or replace the Equipment with similar Equipment in working order if such replacement Equipment is available. Lessor has no obligation to replace Equipment if it has been abused or misused or used in violation of the terms of this Agreement. The only remedy for Customer for failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. The Equipment must be returned to the Store Location within twenty-four (24) hours of the termination of a rental period.
9. RETURN OF EQUIPMENT DAMAGED & LOST EQUIPMENT - At the expiration of the rental period set forth on the front page of this agreement, Customer will return the Equipment to the Store Location during Lessor's regular business hours, such Equipment to be in the same condition as when received, ordinary wear and tear excepted. If the Equipment is not returned by the due date, Customer is responsible for all damages to or loss of the Equipment, including any damage during transit to or from Customer. In the case of the loss or destruction of Equipment, Customer agrees to pay for the same amount of damages it would cost to replace the Equipment at the manufacturer's list price together with the full rental rate as specified until such Equipment is replaced. If Lessor has agreed to deliver the Equipment to Customer or to pick up the Equipment for Customer, Customer shall be responsible for all loss or damage to the Equipment from the time of delivery to Customer to the time of pick up by Lessor. If the Equipment is returned in a damaged condition, upon inspection, Customer shall pay Lessor the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. Lessor shall have no obligation to pay any repair costs until Customer has paid Lessor the deposit and all past due rentals.
10. REASONABLE WEAR AND TEAR - Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift (eight hours per day, 40 hours per week) basis. The following shall not be deemed reasonable wear and tear: (a) any damage to or loss of the Equipment, however caused, during transit to or from Customer's location, except where Lessor expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventive maintenance to the Equipment; (b) damage to the Equipment caused by fire or explosion; (c) damages caused during over-shift operation, including overrating or exceeding the rated capacity of the Equipment; (d) damage in the nature of dents, bending, tearing, staining or missing parts; or (e) any damage other than the type that would be considered ordinary in the equipment rental industry. Repairs 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 Lessor and in a manner that will not adversely affect the operation, manufacturer's design or value of the Equipment.
11. LATE RETURN - If the Equipment is not timely returned, in addition to the rental rates set forth in this agreement, Customer agrees to pay an additional charge of 1.5 times the daily rental rate for each day or portion thereof that the Equipment is held past the due date. Customer agrees to pay for any damage or loss of the Equipment occurring between the time the Equipment is returned and the commencement of Lessor's next business day in the event the Equipment is returned to the Store Location at a time other than Lessor's regular business hours.
12. RENTAL RATE AND CHARGES - All rental charges begin when the Equipment leaves the Store Location and terminate for daily rates when the Equipment is returned thereto. Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are normal usage base on an eight-hour day, 40 hours per week and 160 hours per month. On power equipment, operations in excess of one shift will be at Lessor's standard overtime rates. Customer shall have absolutely no right to hold or retain possession of the Equipment after due date. Customer's right to possess the Equipment terminates on the expiration of the rental period set forth on the front of this agreement and retention of possession after termination shall constitute breach of Customer's obligations in this agreement.
13. DEPOSIT - In addition to securing the payment of the rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guaranty by Customer of the full and complete performance of each and all the items, covenants, and agreements to be performed by Customer hereunder and in the event of any breach by Customer thereof said deposit shall be credited against any damages, cost or expense incurred by Lessor as a result of such breach.
14. PAYMENT - All rentals shall be payable in full upon return of the Equipment to Lessor or prior to 30 days following Lessor invoice to Customer, whichever occurs first. Customer acknowledges that a rental rate is charged for the full period of Equipment's operation and it would be impractical and extremely difficult to fix the actual damage caused by late payment. Customer and Lessor agree that there shall be added to Customer's unpaid balance a late charge of 1.5% per month (18% per year) on any unpaid balance, including past due amounts, or the maximum amount as may be allowed by applicable law. Customer shall pay the rental charge without any offsets, deductions or claims.
15. TITLE/NO PURCHASE OPTION/NO LIENS - This agreement is not a contract of sale, and title to the Equipment shall at all times remain with Lessor. Unless otherwise expressly agreed to by Lessor in writing, the Customer has no option or right to purchase the Equipment. Customer shall keep the Equipment free and clear of all mechanics and any other liens and encumbrances.
16. TIRE/TUBE REPAIR OR REPLACEMENT - Repair or replacement of tires and tubes is the responsibility of the Customer and is not included in the rental rate.
17. DEFAULT - Should Customer in any way fail to perform or keep any provision of this agreement, any or other rental agreement then in effect between Lessor and Customer, Lessor may at its option: (a) retake the Equipment without notice; (b) declare the entire rent immediately due and payable and commence legal action therefore; (c) enter upon the premises where any Equipment is located and disable the Equipment; (d) without notice or legal process, and without constituting a breach of peace, proceed, at its expense, to promptly assemble the Equipment and return the same to Lessor at such place as Lessor may designate; (e) sell, release or otherwise dispose of all or any part of the Equipment in accordance with all applicable laws; (f) exercise any or all other remedies available to Lessor under applicable law, proceed by appropriate court action to enforce the terms hereof, recover damages for the breach of this agreement or to rescind this agreement. Customer shall also be liable for and shall pay upon demand all reasonable costs and expenses including attorneys' fees incurred by Lessor in the enforcement of this agreement. Customer waives any right, performance of any such breach of or default under this agreement of the exercise of Lessor's remedies with respect thereto. Customer waives all claims for damages that Customer might suffer as a result thereof and shall pay all costs and expenses incurred by Lessor in retaking the Equipment. No remedy referred herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor in equity or at law. The exercise of any one or more such remedies shall not preclude the simultaneous or later exercise by Lessor of any or all such other remedies.
18. CUSTOMER'S INSURANCE COVERAGE - Lessor requires that, at its sole cost, adequate liability, physical damage, public liability property damage and casualty insurance for the full replacement cost of the Equipment, including all risks of loss or damage covered by the standard extended coverage endorsement to cover any damage or liability arising from the handling, transportation, maintenance, operation, or use of the Equipment be maintained. When requested, Customer shall supply to Lessor an insurance certificate by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Lessor as loss payee and additional insured; such insurance must be in amounts and form satisfactory to Lessor. The Certificate of Insurance shall provide that Lessor shall receive not less than thirty (30) days' notice prior to any cancellation of the insurance required hereunder.
19. ACCIDENTAL DAMAGE WAIVER PROVISIONS - The Accidental Loss or Damage Waiver is not a form of Insurance. Solely in the event that Lessor offers to Customer in writing or in writing to accept a waiver fee for the Accidental Loss or Damage subject to the terms and conditions in this Section 19 (the "Accidental Loss or Damage Waiver") shall be part of this agreement. A Lessor agrees that, notwithstanding the terms and conditions of this Agreement with Customer, Lessor will not seek compensation from Customer for any Accidental Loss or Damage, subject to the conditions set out in this Section 19. Customer does not need to comply with any provision of this agreement relating to Accidental Loss or Damage (as defined below) of the Equipment. The failure to comply by Customer with the terms and conditions of this section 19 shall void the Accidental Loss or Damage Waiver. An "Accidental Loss or Damage" means any loss resulting from accidental physical loss or theft of the Equipment, but does not include under any circumstances: (i) any loss, destruction, or damage (a) to Equipment as a result of or caused by overloading or exceeding its rated capacity; (b) to motors, generators, drills or other electrical appliances or devices caused by electrical or power failure, fluctuation, or surge; (c) to Equipment as a result of rust or corrosion; (d) to Equipment as a result of blow out, bruises, cuts, punctures or other causes inherent in the use of the equipment; (e) resulting from a lack of or negligent lubrication or from a lack of proper or from improper servicing or maintenance; (f) resulting in damage to equipment resulting from misuse, abuse, house, cleanliness, proper fuel, hydraulic, coolant or pressure levels; (f) associated with the Equipment's rollover or tip over; (g) to any and all accessories and attachments; (h) to fuel, to any associated trailers; (i) resulting from collision with fixed or moving objects, including fuel tanks; (j) as a result of or caused by striking overhead objects with the Equipment, or caused by boom or mast damage from overloading or from collision or striking of any kind; (k) as a result of or caused by or during loading, unloading or transportation of the Equipment; (l) as a result of or caused by any mysterious or unexplained disappearance, conversion or theft of the Equipment that is not a theft for which the requirements under subparagraph (m) below have been satisfied; (m) as a result of or caused by any theft, vandalism, or conversion of the Equipment taken by or with permission of a third party, unless Customer promptly ascertains to the extent reasonably possible the identify, contact information and insurance coverage of the third party and takes all action necessary to file a police report and takes all other steps to assure that any responsible owner of a vehicle that was take in the event of such traffic accident or collision; (n) as a result of or caused by any act, conduct or omission prohibited or not permitted under this agreement; (o) any use, maintenance or possession of the Equipment that is inconsistent with the terms of this agreement or Lessor's or the manufacturer's operation, maintenance or safety instructions or manual; or any law, statute, ordinance, regulation or order of any governmental authority; (p) any loss or damage for which there is insurance or another responsible party; or (q) any act or omission, gross negligence or willful misconduct of Customer, any employee, agent or person under the control of Customer, any person authorized to use the Equipment under this agreement or any other person provided or given control of the Equipment by the Customer; or (ii) any theft or vandalism of the Equipment where: (a) any person involved in the theft or vandalism was or is an operator of the Equipment, a person authorized to use such Equipment under this agreement or any other person provided or given control of the Equipment by the Customer, or (b) the theft was not reported to the police and Customer fails to provide Lessor with a security report number or a copy of such report or a report number within 72 hours of Customer's discovery of such theft or vandalism. (d.) Subject to the terms and conditions of this Section 19, Customer shall not be liable for an Accidental Loss or Damage exceeding either 1,000 U.S. Dollars (US $1,000.00) for a piece of Equipment having a manufacturer's list price of less than Ten Thousand U.S. Dollars (US $10,000.00); or 2,500 U.S. Dollars (US $5,000.00) for a piece of Equipment having a manufacturers list price of ten thousand U.S. Dollars (US $10,000.00) or more (the "Loss or Damage Threshold"). (e) Applies separately to any Accidental Loss or Damage or Loss sustained with regard to each piece of Equipment and to any Accidental Damage or Loss resulting from a separate event or circumstance. Customer's prompt written notice of the Accidental Loss or Damage is required pursuant to Paragraph c. Customer shall remain fully liable for any damage, destruction, loss or theft of the Equipment that does not, or to the extent it does not, or to the extent it does not, constitute an Accidental Loss or Damage. If the Customer has any insurance covering any Accidental Loss or Damage, the Accidental Loss or Damage Waiver becomes secondary and shall only apply to the extent such Accidental Loss or Damage is not covered by Customer's insurance as if the amount of such Accidental Loss or Damage consisted only of the amount exceeding such coverage by Customer's insurance. Customer shall exercise all rights available to Customer under said insurance and take an action necessary to process said claim. Customer further agrees to promptly assign said claim and any and all proceeds from such insurance to Lessor. Upon request of Lessor, Customer shall fully and promptly cooperate with Lessor to enable Lessor to receive all benefits under such insurance or any claims, rights, remedies, or causes of action that Customer has or may have against any third party in connection with the Accidental Loss of Damage, including, without limitation, by promptly furnishing Lessor with all information and documents, executing any documents and affidavits, providing any testimony, and at Lessor's request, by promptly providing any information and documents, executing any documents and affidavits, providing any testimony, and rendering any other reasonable assistance to Lessor.
20. ENTIRE AGREEMENT - This agreement represents the entire agreement between the Customer and Lessor. There are no oral or other representations or agreements not included herein. None of Lessor's rights may be changed and no extension of the terms of this agreement shall be valid unless agreed to in writing by Lessor. Any changes shall be prepared in writing and attached to this agreement for Customer's convenience only. This agreement supersedes any purchase order or other Customer provisions or forms whether sent to received prior, or subsequent of this agreement.
21. NO ASSIGNMENT/LENDING OR SUBLETTING - Customer shall not sublease, subrent, assign, pledge, encumber or loan the Equipment, and any such action by Customer shall be void. Customer agrees to use and keep the Equipment at the job location set forth on the front page of this agreement unless Lessor approves otherwise in writing.
22. WAIVER - TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW FROM TIME TO TIME IN EFFECT, THE CUSTOMER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY (AND AFTER THE CUSTOMER HAS CONSULTED WITH ITS OWN LEGAL COUNSEL), HEREBY WAIVES ANY PROVISION OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT (TEXAS BUSINESS AND COMMERCE CODE, CHAPTER 17, SECTION 17.41 - 17.63).
23. NOTICES - All notices required under this agreement shall be in writing and shall be deemed to have been given when delivered personally or sent by overnight mail or (if given by mail) the fifth day following the date such notice is deposited with the United States Mail, postage, first class mail prepaid, addressed to Lessor or Customer, as the case may be, at their respective addresses as set forth on the front page of this agreement or at such other address as either of them shall from time to time designate in writing to the other.
24. OTHER PROVISIONS - The failure of Lessor to insist upon strict performance of any term or condition of this agreement shall not be construed as a waiver of Lessor's right to demand strict compliance. Lessor has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Lessor as the draftsperson of this agreement. The federal and state courts of the State in which the Store Location is located shall have jurisdiction over this agreement and the parties hereto. RIGHT TO JURY TRIAL IS WAIVED. Service of process may be affected by certified mail, return receipt requested. In the event that any one or more of three provisions hereof shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Customer will promptly execute and deliver to Lessor such further documents and take such further action as Lessor may from time-to-time reasonably request in order to carry out more effectively the purposes and intent of this agreement. Customer understands and agrees that this agreement shall remain expressly subject and subordinate to any financing agreement in which Lessor is a party and any security interest granted by Lessor in connection therewith.
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Criminal Warning: The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the rental period set forth on the front page of this agreement may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.