TERMS AND CONDITIONS
THIS AGREEMENT IS FOR THE RENTAL OF ALL ITEMS, EQUIPMENT AND/OR OTHER EQUIPMENT SHOWN ON THE OTHER SIDE OF THIS PAGE, INCLUDING ALL PARTS AND ACCESSORIES TO SUCH (“EQUIPMENT”).
1. RENTAL PERIOD AND ACCOUNTS: Woudenberg Enterprises, Inc. dba Trench Shore Rentals and Trebor Shoring Rentals (“TSR”) hereby rents the Equipment to Customer for the period commencing when the Equipment leaves TSR’s premises and ending upon its return to TSR’s Premises, subject to charge for minimum rental period. TSR may terminate rental at any time by written notice to customer and/or by
retaking the Equipment.
Any disputed invoice must be brought to the attention of TSR within fifteen (15) days of receipt or such invoice is deemed correct and undisputed. At TSR’s discretion, any account with a delinquent balance may be placed on a cash basis, deposits may be required and the Equipment be picked up without notice. Customer agrees that if TSR refers this agreement to an agency or attorney for enforcement, Customer will pay TSR’s reasonable agency’s and attorney’s fees and costs, including but not limited to lien preparation costs, whether or not a lawsuit is actually filed.
Customer authorizes TSR to make whatever credit inquiries it deems necessary in connection with this Agreement. Bank and trade reference(s) can accept this authorization to disclose to TSR and/or other designees (and any assignee or potential assignee thereof) Customer information normally released to a prospective creditor including length of time the account has been active, average monthly balances, how the account has been handled, and details of any lending relationship.
The individual who is either a principal of the credit applicant or a sole proprietorship of the credit applicant, recognizing that his or her individual credit history may be a factor in the evaluation of the credit
history of the applicant, hereby consents and authorizes the use of a customer credit report on the applicant by TSR, from time to time as may be needed, in the credit evaluation process.
2. PAYMENT TERMS: NET 30 days upon issuance of invoice (invoice date). Finance Charges will generate at 60 days at the rate of 1.5% per month or, if such rate is unenforceable as a matter of law, at the maximum rate permitted by law on past due accounts.
A. Customer agrees to pay TSR upon demand:
1) All rates, charges, taxes, fuel, delivery, pickup and reservation cancellation fees and all other amounts incurred as a result of this Agreement.
2) Replacement costs for any loss or disappearance of the Equipment due to theft, conversion or other dishonest acts on part of any person or persons to whom the issued property is entrusted or any person or persons in the service or employment of the Customer whether or not occurring during the hours of such service or employment. TSR reserves the right to consider the property lost or stolen or converted if not returned within TEN DAYS of the date and time printed under the “TIME AND DATE DUE IN” column on the contract.
B. Credit Card – If TSR agrees to accept payment by credit card, Customer authorizes TSR to charge Customer’s credit card at the time of reservation for 28 days of all rental charges for the Equipment plus any pickup and delivery fees, if applicable. If the Equipment is returned less than 28 days after pickup or delivery, TSR will refund Customer’s credit card for rental charges for the difference between the number of days charged and the actual number of days the Equipment was rented.
C. Payment Guarantee – If Customer has directed TSR and TSR has agreed to bill charges to another person or entity who fails to make payment promptly when due, Customer promises to pay TSR on demand. If Customer directs charges to be billed to another person or entity, Customer represents that it is authorized to give TSR such direction. Customer understands that it remains individually responsible for all charges even if Customer directed TSR to bill another person or entity.
D. Final Audit – CUSTOMER UNDERSTANDS THAT ALL CHARGES ARE SUBJECT TO FINAL AUDIT. Customer authorizes any credits or additional charges that are made are to be paid by the method used at the time of reservation, rental, or return.
E. Rental fees begin when the Equipment is picked up from TSR or delivered to Customer and end when Customer returns the Equipment to TSR or requests the Equipment to be picked up.
3. REPAIR OR REPLACEMENT: Customer acknowledges that repair and replacement of the Equipment is not included in the rental rate and agrees to pay for the repair (including labor) or the full replacement cost of any Equipment returned to TSR in a damaged condition due to any cause whatsoever, regardless of the cause of the damage, reasonable wear and tear excepted.
4. RETURN OF EQUIPMENT: At the termination of this agreement, customer shall return all of the Equipment to TSR’s premises during TSR’s regular business hours, in the same condition as delivered to Customer, subject only to reasonable wear and tear. Customer shall be liable for all damages to or loss of the Equipment occurring because it was not returned within TSR’s regular business hours. If TSR has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer, Customer shall be responsible for all loss or damage to the Equipment from the time of delivery until picked up by TSR.
5. HAZARDOUS MATERIALS: Customer represents and warrants that it shall return all Equipment, including any and all attachments, tools and machinery received from TSR, free from all regulated substances including, but not limited to, hazardous substances, hazardous materials, hazardous waste, toxic substances, or pesticides, as those terms are defined in applicable federal, state, and local environmental laws, regulations, and rules. Customer shall defend, indemnify and hold TSR harmless from and against any and all liabilities, of whatsoever kind or nature, imposed on, incurred by, or served against TSR in any way relating to Customer’s breach of the above warranty.
6. LOST OR DAMAGED EQUIPMENT: Customer is responsible for any and all damages, loss, or theft of the Equipment up to the fair market value of the Equipment. If the Equipment is returned in a damaged or excessively worn condition, customer shall pay TSR the reasonable cost to repair and pay rental on the Equipment at the regular rental rate until repairs have been completed. TSR shall be under no obligation to commence repair work until Customer has paid therefore.
7. DISCLAIMER OR WARRANTIES AND WAIVER OF DAMAGES:
Customer’s sole remedy for any failure or defect in the Equipment shall be
the termination of the rental charges at the time of failure, provided TSR
is notified immediately, and the Equipment is returned to TSR within 24
hours. TSR shall not be responsible for any loss, damage, or injury to
Customer and Customer’s property, including lost profits, incidental,
special or consequential damages, in any way connected with the operation
of, use of, defection, or failure of the Equipment.
TSR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE EQUIPMENT’S
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER
ACCEPTS THE EQUIPMENT “AS IS.”
8. INDEMNITY AND HOLD HARMLESS: To the fullest extent permitted by law, Customer shall defend, indemnify and hold harmless TSR, its officers, directors, members, managers, employees, shareholders, agents and affiliates, from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from the possession, use, maintenance or return of the Equipment, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property including loss of use resulting therefrom, but only to the extent caused in whole or in part by the negligent acts or omissions of the Customer, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Customer shall notify TSR immediately if the Equipment is involved in, or part of, an accident, and shall furnish TSR with a complete report of any accident involving the Equipment, including names and addresses of all persons involved and all witnesses. Customer is responsible for all damage, injuries or loss arising from any accident or act of any and every nature whatsoever, relating to the possession or use of the Equipment, including any damage caused by any device or material used in installing or hitching the Equipment to a towing vehicle, regardless of whom furnished and hitched or installed it.
9. FAILURE TO DELIVER: Customer releases and discharges TSR from any and all liability or damages (including consequential and special damages) which might be caused by TSR’s failure or inability to deliver any Equipment by any specified date or time.
10. DAMAGE WAIVER (WHICH IS NOT INSURANCE): By
Customer accepting DAMAGE WAIVER and paying the appropriate damage waiver fee, and provided Customer takes reasonable precautions to protect Equipment, TSR assumes, on a deductible basis, the risk of accidental damage to the Leased Equipment , except for the following risks assumed by Customer:
A. A deductible of:
$250 for accidental damage to each piece of Equipment with a fair market value of less than $5,000.
$1,000 or 20% of the repair cost of each piece of Equipment, whichever is higher, for accidental damage to each piece of Equipment, with a fair market value of $5,000 or greater.
$1,000 or 20% of the fair market value of each piece of Equipment,
whichever is higher, for damage to any piece of Equipment as a result of
vandalism or malicious mischief.
. Loss or damage from improper use, abuse, or negligence.
C. Loss or damage resulting from overloading or exceeding the rated
capacity of the Equipment.
D. Loss due to disappearance or shortage disclosed on inventory.
E. Loss or damage by conversion of Customer, his employees, or persons to
whom the Equipment is entrusted.
F. Use of the Equipment in violation of any of the terms of this agreement.
G. Failure to file a police report.
H. Loss or damage due to theft, burglary, intentional damage, or mysterious
11. INSURANCE: Contractor’s Liability Insurance Requirements
Customer shall deliver to TSR certificates of insurance and, where
applicable, endorsements for each of the insurance policies enumerated
below before Customer uses the Equipment.
(a) General Liability: Customer agrees to obtain, maintain, and pay for commercial general liability insurance. Policy limits will be at least $1 million per occurrence, $2 million general aggregate, and $2 million products and completed operations aggregate. The general liability policy will provide a waiver of subrogation in favor of TSR, name TSR as Additional Insured for liability, and contain both Primary and Non-Contributory wording.
(b) Workers Compensation: Customer agrees to obtain, maintain and pay for such workers compensation and employer’s liability as required by law. The employer’s liability limit will be at least $1,000,000 Policy Limit Accident/$1,000,000 Policy Limit Disease/$1,000,000 Each Employee Disease. The policy must provide a waiver
of subrogation endorsement in favor of TSR.
(c) Automobile: $1,000,000 Combined Single Limit for automobile Liability – Bodily Injury and Property Damage, including the maintenance and use of “any auto” or “all owned, scheduled, hired, or non-owned autos including trailers”. The automobile policy will provide a waiver of subrogation in favor of TSR, name TSR as Additional Insured for liability, and contain both Primary and Non-Contributory wording. The policy must apply on a “Symbol 1” basis as defined by ISO.
(d) Certificate of Insurance/30-day Notice of Cancellation: Customer shall provide TSR a certificate of insurance demonstrating that the required insurance is in effect prior to provision of services under this Agreement. This certificate will expressly entitle TSR to a 30-day written notice of cancellation or modification.
(e) Subcontractor: Any subcontractor hired by Customer will be required to comply with these insurance requirements.
(f) Such liability insurance shall specifically cover the contractual obligation of Customer under the indemnity provisions contained in this Agreement, and shall also cover not only the services contemplated to be rendered hereunder, but shall also cover Customer’s operation, management and conduct of all its business activities and any attendant facilities and services.
(g) Customer waives its subrogation rights against TSR with respect to any claims (including but not limited to claims for bodily injury and property damage) which are caused by or result from (i) risks insured against under any valid and collectable insurance contract or policy carried by Customer and in force at the time of any such injury and/or damage, and (ii) risks which would be covered under any insurance required to be obtained and maintained by Customer under this Agreement, even if such required insurance is not in fact obtained and maintained. Said waiver shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Agreement with respect to any bodily injury or any loss or damage to property of the parties hereto.
(h) Customer shall cause each insurance policy obtained by it with respect tothis Agreement to provide that the insurer waives all rights or recovery byway of subrogation against TSR (and any officers of TSR) in connection withany claims for bodily injury or property damage covered by such policy, andsuch waiver shall be indicated in any insurance certificate to be provided< pursuant to this Agreement.
(i) All policies required herein shall be written by insurance companies with a rating of A.M. Bests of at least “A-“ and a financial size category of at least VII.
(j) Customer’s policy shall also contain a cross liability/severability of interests provision assuring that the acts of one insured do not affect the applicability of coverage to another insured.
Customer will be charged Damage Waiver for damage or theft of Equipment unless Customer provides evidence of insurance for rented Equipment with the per item limit specified, and naming TSR as lost payee. Customer shall provide a certificate of insurance to TSR evidencing the above insurance coverages and specifying that coverage will not be canceled without 30 days prior written notice to TSR. Any insurance maintained by TSR shall be excess of Customer’s insurance.
12. SUBLETTING AND LOCATION: No item of leased Equipment shall be sublet, assigned, removed from the location at which the Customer represented it was intended to be used, or removed from the State of TSR’s premises from where the Equipment was rented, except by written consent of TSR. This agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, successors, assigns.
13. RETAKING OF EQUIPMENT: If the Equipment is not returned at the termination of the rental or for any reason it becomes necessary for TSR to take the Equipment to protect it from loss or damage, TSR and its agents may enter Customer’s property and retake the Equipment, without notice and legal process, and Customer waives all rights to a prior judicial hearing. TSR and its agents may take all action reasonably necessary to retake the Equipment and Customer waives for itself and its agents and employees all claims for the damages and losses, physical and pecuniary, caused by retaking by TSR. Customer agrees to pay all costs and expenses incurred by TSR in retaking the Equipment.
14. COMPLIANCE WITH LAW AND SAFETY REGULATIONS: As TSR has no control over the use of the Equipment by Customer, Customer agrees at its sole expense to comply with all laws and regulations, including Occupational Safety and Health Administration Act of 1970, (OSHA), and all other federal, state and local laws, regulations, and ordinances, which may affect the Equipment while it is in the possession of Customer. Customer shall defend, indemnify and hold harmless TSR from any liability or expense, including attorneys’ fees, resulting from any actual or asserted violations of such laws, regulations and ordinances.
15. LEGAL FEES AND VENUE: If any party hereto files suit or takes other action to enforce any term or provision of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and expenses. This Agreement is to be construed under the laws of the State of Arizona. The parties agree that venue for any litigation arising out of or relating in any way to this agreement shall be in Maricopa County, Arizona, provided that TSR reserves the right and Customer agrees to TSR’s right to bring legal action in whatever jurisdiction where the Equipment was rented. Customer waives the right to a jury trial of any or all claims or disputes which may arise from this Agreement.
16. TAXES AND FEES: Customer shall reimburse TSR for any fees, charges, or taxes sought to be imposed against TSR by any municipal or local subdivision related to the use of the Equipment by Customer or rental as provided herein.
17. ENTIRE AGREEMENT: Except as expressly provided, this agreement is for the exclusive benefit of the parties and not the benefit of any third party. This agreement represents the entire and integrated agreement between the parties, and supersedes all prior negotiations, representations, or agreements, either written or oral. This agreement may not be amended except by written agreement signed by both parties.
18. O.S.H.A. REQUIREMENTS: Customer agrees at its sole expense to comply with all laws and regulations, including OSHA regulations (29 CFR 1926), and all other federal, state and local laws, regulations, and ordinances which may affect the Equipment at all times. It is Customer’s sole responsibility to ensure compliance for any subcontractors, suppliers and/or delivery entities that may enter the project site or use Equipment that is under Customer’s control. TSR reserves the right to request and receive any OSHA related training and/or recordkeeping document that the Customer (to include any and all subcontractors, suppliers and/or delivery entities) is responsible for maintaining. Customer is responsible to immediately notify TSR of any unsafe act and to immediately take the necessary actions to resolve the situation. Customer shall defend, indemnify and hold harmless TSR, its officers, directors, members, managers, employees, shareholders, agents and affiliates, from and against any and all claims, damages, losses and expenses of whatsoever kind and nature, including but not limited to attorneys’ fees, arising out of or relating to any actual or asserted violations of such laws, regulations and ordinances. To insure compliance with Federal OSHA regulation and to see requirements, visit the OSHA website at www.OSHA.gov.
19. LIABILITY WAIVER: If TSR agrees to assist with the installation of any Equipment for Customer as part of this Agreement, Customer hereby waives and releases any and all claims for damages against TSR arising out of or related to such activities. Customer expressly acknowledges that TSR has no obligation to is not responsible to investigate the worksite conditions, perform any soils or other tests to determine the suitability of the soil conditions or for any other reason, or to make any calculations or recommendations regarding the proper Equipment, shoring supports and specifications to be used.