RENTAL AGREEMENT TERMS AND CONDITIONS
1. DEFINITIONS: "Lessor" is Diamond Tool and Fasteners and any of its corporate subsidiaries identified in this Agreement. "Equipment" is any one or more of the items identified on this Agreement, and includes any blades, cables, fuel tanks and nozzles. "Lessee" is the person or entity identified on the first page of this Agreement, including any representative, agent, officer or employee of the Lessee. "Store" is the Diamond Tool address on this Agreement. "Rental Period” is the period of time between the "Date Out" and the "Date In" set forth in this Agreement.
2. AUTHORITY TO SIGN: Any individual signing this Agreement represents and warrants that he or she is of legal age, and has the authority and power to sign this Agreement on their own behalf, or on the behalf of Lessee.
3. RECEIPT & INSPECTION OF EQUIPMENT: Both parties agree that the property was inspected by the Lessee prior to taking possession thereof and finds it in good working order and repair and suitable for the Lessee's needs. Lessee is familiar with the proper operation and use of each item of Equipment. Lessee has inspected or will inspect all hitches, bolts, safety chains, hauling tongues and other devices and materials used to connect the Equipment to Lessee's towing vehicle, if any.
Lessor is not responsible for any damage to Lessee's towing vehicle caused by detachable hitches or mirrors. Lessee hereby acknowledges receipt of the herein-described personal property.
4. TITLE/NO PURCHASE OPTION/NO LIENS: This is a rental contract and NOT a contract for sale. Title to the Equipment is and at all times will remain with Lessor. Unless covered by a specific supplemental agreement signed by Lessor, Lessee has no option or right to purchase the Equipment. Lessee will keep the Equipment free and clear of all mechanics and other liens and encumbrances.
5. NO ASSIGNMENT, LENDING OR SUBLETTING: Only the parties hereto and those persons whose names are listed on the reverse side, are authorized to use the Equipment, and Lessee will not permit the Equipment to be used by any other person at any other address other than the address designated on the reverse side without the express written consent of Lessor.
6. DISCLAIMER OF WARRANTIES: LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR LESSEE'S INTENDED PURPOSE OR THAT IT IS FREE FROM DEFECTS EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS RENTAL CONTRACT. LESSOR DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED MADE IN CONNECTION WITH THIS RENTAL CONTRACT.
7. MALFUNCTIONING EQUIPMENT: Should the Equipment becomes unsafe, malfunction or require repair, Lessee will immediately notify Lessor in writing, cease using Equipment and return it to Lessor. If the condition is the result of normal operation, Lessor will repair or replace the Equipment with similar equipment in working order if available. Lessor has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect. Lessee's sole remedy for any failure or defect in the Equipment will be the termination of any rental charges accruing after the time of failure.
Lessee must return the Equipment to within 24 hours from the time of the defect to terminate the rental charges.
8. RETURN OF EQUIPMENT, DAMAGED & LOST EQUIPMENT: At the expiration of the rental period, Lessee will promptly return the rented property and all its parts and attachments, to the Store during its normal business hours. Such Equipment is to be in the same condition as it was received, subject to ordinary wear and tear as defined below. Lessee will be liable for all damages to or loss of the Equipment and any of its parts or attachments, from the time the Equipment leaves the Store until the time it is returned to the Store, including any damage incurred while in transit to or from Lessee. In the case of the loss or destruction of any Equipment, or the inability or failure to return same to Lessor, for any reason whatsoever, Lessee will immediately pay the full replacement value together with the full rental rate as specified until such time as the Equipment is replaced and received by Lessor. If the Equipment is returned in damaged or excessively worn condition, Lessee is responsible for the reasonable cost of repair and with pay rental charges until such time as the Equipment is repaired and returned to Lessor. Lessor is under no obligation to repair the Equipment unless and until Lessee has paid the estimated costs thereof.
9. WEAR AND TEAR: Reasonable wear and tear of the Equipment will mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift (8 hours per day, 40 hours per week) basis. The following will not be deemed reasonable wear and tear: (a) damage resulting from the lack of lubrication or maintenance of necessary oil, water and air pressure levels; (b) except where Lessor expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventive maintenance suggested in the manufacturer's operation and maintenance manual; (c) damage resulting from any collision, overturning or improper operation, including overlooking or exceeding the rated capacity of the Equipment; d) damage in the nature of dents, bending, tearing, staining and misalignment to or of the Equipment or any part thereof; (e) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry. Repairs to the equipment will be to the reasonable satisfaction of Lessor and in a manner which will not adversely affect the operation, manufacture's design, manufacturer’s warranty or value of the Equipment.
10. TIRE/TUBE REPAIR OR REPLACEMENT: Repair or replacement of tires and/or tubes is the responsibility of Lessee and is not included in the Rental Rate.
11. FAILURE TO DELIVER: Lessee release and discharges Lessor from any and all liability or damages (including consequential and special damages) which might be caused by Lessor’s failure or inability to deliver any Equipment by any specified date or time.
12 . DISCLAIMER AS TO CONSEQUENTIAL OR SPECIAL DAMAGE: Under no circumstances will Lessor be liable for any consequential or special damages which any person, firm, corporation, or other entity may suffer or claim to suffer or incur or claim to incur as a result of any defect in the Equipment or in any correction or alteration thereof made or furnished by Lessor or others. "Consequential Damages" or "Special Damages" as used herein includes but is not limited to costs of transportation, lost sales, lost orders, lost profits, lost income, increased overhead, labor and material costs, and costs of manufacturing variances and operation inefficiencies.
13. INDEMNITY/HOLD HARMLESS: Lessee agrees that it is fully responsible for the Equipment while in Lessee’s possession EVEN IF A CALL NUMBER HAS BEEN ISSUED. Lessee agrees to take all necessary steps not only to protect the Equipment itself, but to protect anybody who might come in contact with or work near where the Equipment is used, transported, stored or maintained by Lessee. Lessee understands and agrees that Lessor has no responsibility either to the Lessee or any other person, firm, corporation or entity, to pay damages arising out of the Equipment or its use, storage, transportation by Lessee or while Lessee has possession of the Equipment. Lessee agrees to indemnify and save harmless Lessor against all loss, damage, expense and penalty arising from any action on account of any injury to person or property occasioned by the operation, handling or transportation of the Equipment during the Rental Period or while the Equipment is in the possession or control of the Lessee. Lessee agrees that it is responsible for any and all injury to a third person or damage to property, even if Diamond was also negligent with regard to the Equipment, and agrees to indemnify and hold Lessor harmless in those circumstances.
14. RENTAL PERIOD & CALCULATION OF CHARGES: Rental charges commence when the Equipment leaves the Store and ends when the Equipment is returned to the Store, so long as the return is during normal business hours. Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are for normal usage based on an 8 hour work day, 40 hours per week and 160 hours per month. On power Equipment, operation in excess of one shift will be at Lessor’s standard premium rental rates. Lessee will truthfully and accurately certify to Lessor the number of shifts the Equipment was operated. Lessee's right to possess the Equipment terminates on the expiration of the Rental Period and retention or possession after this time is a material breach of this Agreement. TIME IS OF THE ESSENCE.
15. LATE RETURN: If Equipment is not returned by the "Due In" date on the Agreement, Lessee agrees to pay for any damage to or loss of the Equipment occurring between the time the Equipment is returned and the start of Lessor’s next business day in the event that the Equipment is returned any time other than during Lessor’s normal business hours. Lessor will not make a refund on any items out over 30 minutes. Lessor may report the Equipment stolen if held 5 days beyond “Due In” date.
16. DEPOSIT/PAYMENT: In addition to securing the payment of rental charges hereunder, Lessee agrees that any rental deposit shall be deemed to be a guaranty by Lessee of the full and complete performance of each and every event of all the terms, covenants and agreements to be performed by Lessee hereunder and in the event of any breach by Lessee, the deposit will be credited against any damages, costs or expenses resulting from said breach. All amounts due hereunder shall be payable in full at the earliest of the end of the Rental Period, return of the Equipment to Lessor, or thirty (30) days following Diamond's invoice to Lessee.
17. USE OF EQUIPMENT. Lessee covenants and agrees that (i) the Equipment will be in the Lessee’s sole care and control; (ii) the Equipment will be used only in its operational capabilities as per the manufacturer’s specifications; (iii) only qualified operators shall use the Equipment; and (iv) Lessee owns or rents all necessary safety devices required for operation of the Equipment.
18. DEFAULT: Lessee shall be deemed to be in default should Lessee fail to pay any amount when due, to perform, observe or keep any provision of this Agreement, should the Lessee become "insolvent" as defined herein, should Lessor anticipate that Lessee may become insolvent or that Lessee may otherwise become in default. If Lessee is in default, Lessor may do any one or more of the following: (a) terminate this Agreement, ending the Rental Period, (b) declare the entire amount owed due and payable immediately, and commence legal action, (c) cause Lessor’s employees or agents without notice or legal process to enter upon the Lessee's property and take all action necessary to retake and repossess the Equipment, in which event Lessee waives all claims for damages and losses, physical and pecuniary, and (d) pursue any other remedies available by law. Lessee shall be considered "insolvent" if Lessee (i) does not pay, shall be unable to pay, or shall admit its inability or anticipated inability to pay its debts; (ii) makes an assignment for the benefit of creditors or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; or (iii) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any one jurisdiction whether now or hereafter in effect.
19. LESSEE'S INSURANCE COVERAGE: Lessee agrees to maintain an carry at is 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, possession or use of the Equipment during the entire Rental Period. When requested, Lessee shall supply proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Lessor as loss payee and named insured; such insurance and evidence thereof to be in amounts and form satisfactory to Lessor. The Certificate of Insurance and policy shall provide that Lessor shall receive not less than thirty (30) days prior written notice to any cancellation of the insurance required hereunder.
20. RENTAL PROTECTION PLAN (“RPP”): The terms of Sections 8 and 9 of this Agreement are modified by the RPP and Lessor shall limit the amount Lessor collects from Lessee for the Equipment loss, damage or destruction to the following amounts: (a) for stolen Equipment, the Lessee will be responsible for 10% of the replacement cost; (b) for repairs for incidental or accidental damage to Equipment, the RPP will cover 100% of the cost of repair after a $500 deductible paid by Lessee; and (c) nothing for the rental charges which would otherwise accrued during the period when damaged or destroyed Equipment is being repaired or replaced by Lessor or, for lost or stolen Equipment: provided however, the foregoing RPP coverage only applies if the Conditions are satisfied and Exclusion does not apply. THE RPP IS NOT INSURANCE AND DOES NOT PROTECT CUSTOMER FROM LIABILITY TO LESSOR OR OTHERS ARISING OUT OF POSSESSION OR OPERATION OF THE EQUIPMENT, INCLUDING INJURY OR DAMAGE TO PERSONS OR PROPERTY.
i. RPP Conditions. All of the following "Conditions" must be satisfied for the RPP to apply: (A) Customer accepts the RPP In advance of the rental: (B) Customer pays 15% of the gross rental charges as the fee for the RPP, (C) Customer fully complies with the terms of this Contract: (D) Customers account is current at the time of the loss, theft, damage or destruction of the Equipment; and (E) none of the Exclusions apply.
ii. Customer assumes the Exclusion risks, meaning that if any Exclusion occurs, the RPP does NOT cover the loss, theft, damage or destruction resulting from such Exclusion. “Exclusions " shall mean loss, theft, damage or destruction of the Equipment (A) due to misuse or negligence, (B) caused by loss or theft of the Equipment not reported by the Lessee to police within 24 hours of discovery, and substantiated by a written police report promptly delivered to Lessor, (C) caused by loss or theft of the Equipment that has been improperly secured; and (D) due to Acts of God, such as floods, wind, storms or earthquakes. THE EXCLUSIONS ARE RISKS ASSUMED BY CUSTOMER AND ARE NOT COVERED BY THE RPP.
iii. Recovery of Equipment. Notwithstanding anything to the contrary in this Contract, if lost or stolen Equipment is recovered, Lessor retains ownership of the Equipment regardless of any payments made by Lessee or Lessee’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.
iv. Subrogation. Lessor shall be subrogated to Lessee’s rights to recover against any person or entity relating to any loss, theft, damage or destruction to the Equipment. Lessee shall cooperate with, assign Lessor any claims or proceeds arising from such loss, theft, damage or destruction, execute and deliver to Lessor whatever documents are required and take all other necessary steps to secure in Lessor such rights.
21. ENTIRE/ONLY AGREEMENT: This Agreement constitutes the entire agreement between Lessee and Lessor regarding the rental of said Equipment. There are no oral or other representations or agreements not included herein. Neither parties’ rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by both parties. Use of Lessee’s Purchase Order Number is for Lessee’s convenience only. This Agreement supercedes any provisions or terms whether sent to or received prior to, or subsequent to this Agreement.
22. ORDER OF PRECEDENCE: The terms and conditions of this Agreement shall control over any conflicting preprinted terms and conditions contained in Lessee’s purchase order or similar documents.
23. OTHER PROVISIONS:
A. Failure of Lessor to insist upon strict performance on any terms and conditions of this Agreement is not a waiver of Lessor’s right to demand strict compliance.
B. Lessee 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.
C. Lessee agrees to pay all reasonable costs of collection, court, attorney’s fees and other expenses incurred by Lessor in the collection of any charges due under this Agreement or in connection with the enforcement of its terms and agrees to pay a 1/2% per month service charge (18% APR) on all amounts due after 30 days.
D. All disputes arising out of this agreement or relating to any matter that is the subject of this agreement shall be subject to the exclusive jurisdiction of the Pennsylvania state and federal courts.
E. Lessee agrees that should any provision violate the law and be found unenforceable, the rest of this Agreement will be valid.
F. WARNING: The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the Rental Period without notice to Lessor, may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provision.
GENERAL SALES AGREEMENT
It is agreed between the parties, that title of the said goods shall not pass, until the purchase price is paid in full, and said goods shall remain the property of Diamond Tool until that time. It is agreed that the billing of said goods is for convenience only and does not carry title with it, and that, in case of default of payment, or in case of removal of said goods or any part thereof without the consent of Diamond Tool, or in the event the purchaser shall mortgage or part with the possession of said property voluntarily or involuntarily, without the consent of Diamond Tool, the latter shall have the right to resume immediate possession of same wherever it may be found, and remove it with or without process of law and may declare this agreement terminated and may retain all money paid hereunder as liquidated damages and rental for said goods. In the event a claim is placed in an attorney's hand for collection or the event of litigation, a reasonable attorney's fee and cost shall be added thereto. *1 1/2% per month service charge on all amounts due after 30 days. This is equal to 18% per annum simple interest. All expenses incurred in collecting past due accounts will be added to amount due, and become purchaser’s liability. Purchasor hereby disclaims all implied warranties of merchantability and fitness for purpose. Under no circumstances will Lessor be liable for any consequential or special damages which any person, firm, corporation, or entity may suffer or claim to suffer or incur or claim to incur as a result of any defect in the product or in any correction or alteration thereof made or furnished by Diamond or others. "Consequential Damages" or "Special Damages" as used herein includes but is not limited to costs of transportation, lost sales, lost orders, lost profits, lost income, increased overhead, labor and material costs, and costs of manufacturing variances and operation inefficiencies. This Agreement constitutes the entire agreement between the parties regarding the goods. All disputes arising out of this agreement or relating to any matter that is the subject of this agreement shall be subject to the exclusive jurisdiction of the Pennsylvania state and federal courts. NOTE: If your order includes a free item offered with purchase of an item, and you return the purchased item, you must also return the free item. If you do not return the free item, you will be charged the retail price for it.
AUTHORIZATION FOR RENTAL AND SALES
Customer authorizes Diamond Tool to obtain information for purposes of advancing commercial credit to customer or for the review or collection of the customer’s account.