This Equipment Rental Agreement (this “Agreement”) is made and entered into effective as of this [NUMBER] Day of [MONTH] [YEAR] by and between Armstrong Rentals, LLC (“Company”) and [NAME OF CUSTOMER] (“Customer”) (Company and Customer, collectively, the “Parties”).
In consideration of the mutual covenants and promises in this Agreement, the receipt and sufficiency of which consideration his hereby acknowledged by the Parties, Company rents the Equipment (as herein defined) to Customer, and Customer rents the Equipment from Company, on the following terms and conditions:
1. Definitions. The following definitions are used but not otherwise defined in this Agreement.
1.1. “Authorized Individuals” means those individuals that Customer directly or indirectly allows to use the Equipment, who must be properly trained to use the Equipment, at least eighteen (18) years old, and are not under the influence of any drugs, alcohol, substances, or are otherwise impaired.
1.2. “Company Site” means the commercial site from which Company will deliver and accept the return of the Equipment and more specifically identified as 4755 Lebanon Road, Lebanon, Tennessee 37087.
1.3. “Equipment” means the equipment identified in the Invoice.
1.4. “FMV” means the fair market value of Equipment on or about the date of the Incident occurring in connection with the Equipment, plus any administrative fees and expenses.
1.5. “Incident” means any fine, citation, theft, accident, casualty, loss, vandalism, injury, death, or damage to person or property, claimed by any person or entity that appears to have occurred in connection with the Equipment.
1.6. “Lost” means Equipment that is stolen, that Customer is unable to recover for a period of thirty (30) days, or whose location is unknown to Customer.
1.7. “One Shift” means not more than eight (8) hours per day, forty (40) hours per week, and one hundred sixty (160) hours every four (4) week period, provided that double shift will be one hundred fifty percent (150%) and triple shift will be two hundred percent (200%) of the rental charge on Equipment with hour meters.
1.8. “Ordinary Wear and Tear” means normal deterioration considered reasonable in the construction equipment rental industry.
1.9. “Customer Site” means the work site where Customer will use the Equipment during the Rental Period and more specifically identified as [ADDRESS].
1.10. “Total Loss” means any loss or damage that is not repairable or that would cost more to repair than the FMV of the Equipment.
2. Reservation of Equipment. To reserve the Equipment for the Rental Period upon execution of this Agreement, Customer agrees to pay a fee of twenty-five percent (25%) of the Invoice Total listed on Customer’s invoice numbered [NUMBER] dated [DATE] (the “Invoice”). The reservation fee shall be nonrefundable except upon at least thirty (30) days written notice to Company that Customer intends to cancel this Agreement. The reservation fee shall otherwise be applied to Customer’s Rent under this Agreement.
3. Delivery of Equipment. On the Rental Date listed on the Invoice, Company shall deliver possession of the Equipment to Customer at the Company Site, and on the Return Date listed on the Invoice, Customer shall return possession of the Equipment to Company at the Company Site. Customer shall transport the Equipment at its own risk. Notwithstanding, upon written agreement of the Parties, Company may deliver possession of the Equipment to Customer at the Customer Site, and on the Return Date, Company may retake possession of the Equipment from Customer at the Customer Site. In such case, Customer shall pay the one-way transportation fees identified in the Invoice.
4. Rent. Customer will pay the rent due under the terms of the Invoice (“Rent”) monthly, in advance, beginning on the Rental Date, and thereafter on the first day of each succeeding month throughout the Rental Period. A five percent (5%) late fee will be charged on Rent paid after such date. Customer shall have thirty (30) days to cure a late payment after which Company has the immediate right, but not obligation, to retake possession of the Equipment.
5. Other Costs. The Rent does not include other costs for which Customer is responsible, including but not limited to: (i) all consumables, fees, licenses, present and future taxes, and any other governmental charges based on Customer’s possession or use of the Equipment, including additional fees for more than One Shift use; (ii) maintenance, repairs, and replacements to the Equipment as provided herein; (iii) refueling and cleaning fees, if required; and (iv) miscellaneous charges, such as fees for lost keys, costs to recover Equipment, and emergency mobilization or store opening.
6. Payment. Upon execution of this Agreement, Customer shall provide Company with [specified bank account and routing information for electronic funds transfer]. Customer authorizes Company to charge Customer’s credit or debit card all amounts provided in this Agreement and charges subsequently incurred by Customer, including but not limited to loss of or damage to the Equipment and any extension of the Rental Period. Company may impose a surcharge of four percent (4%) or a minimum of $3.00 for credit card payments on charge accounts, whichever amount is greater. This surcharge is not greater than Company’s merchant discount rate for credit card transactions and is subject to sales tax in some jurisdictions. Customer shall pay a fee of $75.00 for each check returned for lack of sufficient funds to compensate Company for its overhead for processing missed payment.
7. Use of Equipment. Customer agrees and warrants that: (a) Company has no control over the manner in which the Equipment is operated during the Rental Period by Customer or any third party that Customer implicitly or explicitly permits; (b) prior to each use and its return to Company, Customer shall inspect the Equipment to confirm that the Equipment is in good condition, without defects, readable decals are on the Equipment, and the Equipment is suitable for Customer’s intended use; (c) Customer has access to and reviews the operating and safety instructions and will operate the Equipment in accordance with the manufacturer’s instructions and with applicable safety equipment; (d) any apparent agent at the Customer Site is authorized to accept delivery of the Equipment (and if Customer requests, Customer authorizes Company to leave the Equipment at the Customer Site without requirement of written receipt); (e) Customer shall immediately stop use and notify Company if the Equipment is damaged, unsafe, disabled, Lost, or if any Incident occurs; (f) Customer has received from Company all information needed or requested regarding the operation of the Equipment; (g) Company is not responsible for providing training to Customer; (h) the Equipment shall be used and maintained in a careful manner, with the Equipment’s capacity and in compliance with all appliable laws, regulations, as well as all operating and safety instructions provided on, in or with the Equipment and all applicable federal, state, and local laws, permits and licenses, including but not limited to, OSHA and ADA, as revised; (i) the Equipment shall be kept in a secure location at the Customer Site; and (j) Customer shall provide Company with accurate and complete information, which Company relies upon to provide the appropriate equipment to Customer.
8. Prohibited Use of Equipment. Customer shall not: (a) alter or cover up any decals or insignia on the Equipment, remove any operating or safety equipment or instructions or alter or tamper with the Equipment; (b) assign its rights under this Agreement without Company’s prior written consent; (c) move the Equipment from the Customer Site without Company’s prior written consent; (d) use the Equipment for greater than One Shift without Company’s prior written consent; (e) use the Equipment in a negligent, illegal, unauthorized or abusive manner; (f) publicize use of the Equipment in any manner (including, without limitation, print, audiovisual or electronic); or (g) allow the use of the Equipment by anyone other than Authorized Individuals (Customer acknowledging that the Equipment may be dangerous if used improperly or by untrained parties).
9. Return of Equipment. Company may terminate this Contract at any time, for any reason. The Equipment shall be returned to Company (when needed for inspections, maintenance, and at the end of the Rental Period) at Customer’s sole expense and risk in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. If Customer fails to return the Equipment in the condition required herein, Customer will continue to be responsible for daily rental and/or other charges after the Rental Period and for the period reasonably required for Company to return the Equipment to the condition in which it was delivered to Customer. If Customer fails to return the Equipment fully refueled, Company shall as a convenience to Customer refuel the Equipment at its Company Site at cost to Customer. If Company delivered the Equipment to Customer, Customer shall notify Company that the Equipment is ready to be picked up at the Customer Site and obtain and Pick-Up number, which Pick-Up Number Customer should keep as proof of the call; provided Customer remains liable for any loss, theft, damage to or destruction of the Equipment until Company confirms that the Equipment is returned in the condition required herein. Customer will not be charged the rental charges after the date the Pick-Up Number is given, provided Customer has otherwise complied with this Agreement. If the Equipment is not returned by the end of the Rental Period specified earlier, Customer agrees to pay the applicable rental rate for the Equipment until the end of the Rental Period.
10. Default. Customer shall be in default if Company deems itself insecure or if Customer: (a) fails to pay sums when due; (b) breaches any Section of this Agreement; (c) becomes a debtor in a bankruptcy proceeding, goes into receivership, takes protection from its creditors under any insolvency legislation, ceases to carry on business, or has its assets seized by any creditor; (d) fails to insure the Equipment as required, or otherwise places the Equipment at risk; (e) fails to return Equipment immediately upon Company’s demand; or (f) is in default under any other contract with Company.
11. Remedies. If Customer defaults under Section 10, Company is entitled to the following remedies, in addition to all other rights and remedies at law or in equity: (i) immediate payment of all Rent for the full Rental Period, to be paid as liquidated damages without prior notice or demand to Customer; (ii) immediate repossession of the Equipment without judicial process or prior notice; (iii) payment of Company’s costs, including reasonable costs of collection, court costs, attorney’s and legal fees, incurred in exercising any of its rights or remedies pursuant to this Section 11; and (iv) termination of this Agreement upon written notice to Customer. Customer waives all damages and right of action against Company for such repossession. Customer shall not be liable due to seizure of Equipment by order of governmental authority.
12. Repair and Maintenance of Equipment. Customer shall perform routine maintenance on the Equipment, including routine inspections and maintenance of fuel and oil levels, grease, cooling and fluid systems, batteries, tires/tracks cutting edges, and cleaning in accordance with the manufacturer’s specifications, as applicable. All other maintenance or repairs may only be performed by Company or its agents, provided however that Company has no responsibility during the Rental Period to inspect or perform any maintenance or repairs unless Customer requests a service call. If Company determines that repairs to the Equipment are needed, other than Ordinary Wear and Tear, Customer shall pay the full repair charges, additional fees, if any, and rental of the Equipment until the repairs are completed. If Equipment is stolen or damaged in excess of forty percent (40%) of the Equipment’s FMV, Customer will be responsible for the FMV of the Equipment, including sales tax, as applicable. Company has the right to inspect the Equipment wherever located. Customer has the authority to and hereby grants Company and its agents the right to enter the physical location of the Equipment for the purposes set forth herein. Company shall be responsible for repairs needed because of Ordinary Wear and Tear. Customer agrees that repair or replacement of the Equipment is Customer’s exclusive remedy for Company’s breach of this Section 12. Notwithstanding Company’s service commitment, if Customer breaches this Agreement, Company shall have no obligation to stop the Rental Period, commence repairs, or rent other equipment to Customer until Customer or its agent agrees to pay for such charges.
13. Customer Liability. During the Rental Period, Customer assumes all risks associated with the possession, control, and use of the Equipment, including but not limited to, personal injury, death, rental charges, theft, losses, damages and destruction, including customer transportation, loading and unloading, whether or not the Customer is at fault. After an Incident, Customer shall: (a) immediately notify Company, the police, if necessary, and Customer’s insurance carriers; (b) secure and maintain the Equipment and the surrounding premises in the condition existing at the time of such Incident, until Company or its agents investigate; (c) immediately submit copies of all police or other third-party reports to Company; and (d) as applicable, pay Company, in addition to other sums due herein, the rental rate for Equipment until the repairs are completed or the Equipment is replaced, plus either: (i) the FMV of the Equipment; or (ii) the full charges of recovery and repairs of damaged Equipment. Accrued rental charges shall not be applied against these amounts. Company shall have the immediate right, but not obligation, to retake possession of any Equipment involved in any Incident.
14. No Warranties. Company disclaims all representations and warranties, express or implied, with respect to the Equipment, its durability, condition, merchantability, non-infringement, or its fitness for any particular purpose. Customer acknowledges acceptance of the Equipment on an “as is, where is” basis, with “all faults” and without any recourse whatsoever against Company. Customer assumes all risks associated with the Equipment and releases Company from all liabilities and damages (including lost profits, personal injury, and special, incidental, and consequential damages, even if advised of the possibility of such damages) in any way connected with the Equipment, its installation, operation, or use or any defect or failure thereof, a breach of Company’s obligations herein or errors or inaccuracies in information obtained from Customer or third parties, upon which Company relies; provided however, if Customer is a consumer under applicable law, then no consequential damages limitation of injuries to persons shall apply.
15. Release and Indemnification. To the fullest extent permitted by law, Customer indemnifies, releases, holds Company harmless, and at Company’s request, defends Company (with counsel approved by Company) from and against all liabilities, claims, losses, damages, and expenses (including attorney’s and/or legal fees and expenses) however arising or incurred, related to any Incident, damage to property, injury, or death of any person, contamination or alleged contamination, or violation of law or regulation caused by or connected with: (a) the access, use, possession, or control of the Equipment by Customer or any third party that Customer implicitly or explicitly permits to access, use, possess, or control the Equipment during the Rental Period; or (b) the breach of this Agreement, whether or not caused in party by the active or passive negligence or other fault of any party indemnified herein and any of the foregoing arising or imposed in accordance with the doctrine of strict or absolute liability. Customer also agrees to waive its workers’ compensation immunity, to the extent applicable. Customer’s indemnity obligations shall survive the expiration or termination of this Agreement. All of Customer’s indemnification obligations under this Section 15 shall be joint and several.
16. Insurance. During the Rental Period, Customer shall maintain, at its own expense, the following minimum insurance coverage: (a) for Customers using Equipment for non-personal use, general liability insurance of not less than $1,000,000 per occurrence, including coverage for Customer’s contractual liabilities herein such as the release, hold harmless, and indemnification clause contained in Section 15; (b) for Customers using Equipment for non-personal use, property insurance against loss by all risks to the Equipment, in an amount at least equal to the FMV thereof; (c) worker’s compensation insurance as required by law; and (d) automobile liability insurance (including comprehensive and collision coverage, and uninsured/underinsured motorist coverage), in the same amounts set forth in Subsections (a) and (b), if the Equipment is to be used on any roadway. Such policies shall be primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, name Company as an additional insured (including an additional insured endorsement) and loss payee, and provide for Company to receive at least thirty (30) days prior written notice of any cancellation or material change. Any insurance that excludes boom damage or overturns is a breach. Customer shall provide Company with certificates of insurance evidencing the coverages required above prior to any rental and any time upon Company’s request. To the extent Company carries any insurance, Company’s insurance will be considered excess insurance. The insurance required herein does not relieve Customer of its responsibilities, indemnification, or other obligations provided herein, or for which Customer may be liable by law or otherwise. Customer shall not be entitled to take possession of the Equipment until Customer has submitted adequate proof of insurance complying with this Section 16 to certificates@armstrongrent.com.
17. Limitation of Company’s Liability. In consideration of the rental of the Equipment, Customer agrees that Company’s liability under this Agreement, including any liability arising from Company’s comparative, concurrent, contributory, passive or active negligence, or that arises as a result of any strict or absolute liability, shall not exceed the total rental charges paid by Customer under this Contract.
18. Arbitration Agreement & Waivers. At the election of Customer or Company, any dispute arising out of, in connection with, or in any way pertaining to this Agreement shall be settled by arbitration brought in the party’s individual capacity and not as a plaintiff in a purported class or representative capacity, administered by the American Arbitration Association under its commercial arbitration rules or by JAMS pursuant to its streamlined arbitration rules and procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There shall be no right or authority for any claims to be arbitrated or tried on a class action basis. In any dispute arising out of, in connection with, or in any way pertaining to this Agreement, Customer and Company hereby knowingly, voluntarily, and intentionally waive any right to a trial by jury, this waiver being a material inducement to entering into this Agreement.
19. Force Majeure. Company shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond Company’s control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, regulations, shutdowns, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the control of Sunbelt.
20. No Waiver. No delay or omission to exercise any right, power, or remedy accruing to Company on any breach or default by Customer under this Agreement shall impair any such right, power, or remedy of Company, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence in such breach or default, or of any similar breach or default occurring thereafter; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default. Any waiver, permit, consent, or approval of any kind or character on the part of Company of any breach or default under this Agreement, or any waiver on the part of Company of any term, provisions, condition, or covenant of this Agreement, must be in writing, and shall be effective only to the extent in such writing specifically set forth. All remedies, either under this lease or by law, or otherwise afforded to Company, shall be cumulative and not alternative.
21. General Provisions.
21.1. This Agreement constitutes the entire agreement between the Parties. Any prior understanding or representation of any kind preceding the date of this Agreement will not be binding on the Parties except to the extent incorporated in this Agreement.
21.2. This Agreement, including any related tort claims, shall be governed by the laws of Tennessee, without regard to any conflicts of law principles. Any disputes relating to or arising out of this Agreement shall be heard in Wilson County, Tennessee.
21.3. If any Section of this Agreement is prohibited by any law, such Section shall be ineffective to the extent of such prohibition without invalidating the remaining Sections.
21.4. Customer consents to the collection, internal use, and if required by operation of law or court order, disclosure of the data and information Customer voluntarily provides to Company, including personal identifiable information and financial information.
21.5. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
21.6. Except as explicitly provided herein, interest payable on any amounts overdue under this Agreement will be at a rate of five percent (5%) per annum or at the maximum rate allowed under applicable legislation, whichever is higher.
21.7. This Agreement may be executed in counterparts. Facsimile signatures are binding and are considered to be original signatures.
21.8. Time is of the essence in this Agreement.
21.9. This Agreement will extend to and be binding upon and inure to the benefit of the respective heirs, executors, administrators, successors and assigns, as the case may be, of each of the Parties to this Agreement.