Customer’s rental of Equipment is conditioned upon Customer’s agreement with all BGES Contracts and master terms and conditions. All of the terms herein are incorporated into this and all future contracts and rentals between BGES and Customer upon Customer’s receipt of BGES’s Equipment under those contracts. Any reference in Customer’s purchase order or other Customer document shall be void. “Customer” is identified on the Contract hereof and includes any of its representatives, agents, officers or employees and anyone signing the Contract on their behalf. “Equipment” is the rental equipment and/or services identified on the Contract hereof, together with all replacements, repairs, additions, attachments and accessories thereto and all future Equipment rented. “Site Address” is the location that Customer represents the Equipment will be located during the Rental Period and is identified on the Contract hereof. “Store” is the BGES store location identified on the Contract hereof. “BGES” is B&G Equipment and Supply, LLC and its respective officers, directors, employees and agents. Customer rents the Equipment from BGES pursuant to the Contract. Customer shall pay BGES the rental rates (including any minimum rental on the Contract hereof) and other charges described herein when due, return the Equipment to BGES as required herein and otherwise comply with the Contract. Customer may also purchase “Supplies” from BGES, in addition to the rental of equipment. Unless invoiced items are designated as Supplies, the Equipment (a) is leased to Customer under a true lease, (b) is and shall remain the personal property of BGES and (c) shall not be affixed to any other property.
Customer agrees that BGES has no control over the manner in which the Equipment or Supplies are operated by Customer or any third party. Customer warrants that: (a) prior to each use, Customer has or will inspect the Equipment to confirm that it is in good condition, without defects, includes readable decals and operating and safety instructions and is suitable for Customer’s intended use; (b) any apparent agent of the Site Address is authorized to accept delivery of the Equipment (and if Customer requests, Customer authorizes BGES to leave the Equipment at the Site Address without requirement of written receipt); (c) Customer shall immediately notify BGES if the Equipment is lost, damaged, stolen, unsafe, disabled, malfunctioning, levied upon, threatened with seizure, or if any Incident occurs; (d) Customer has received from BGES all information needed or requested regarding the operation of the Equipment; (e) BGES is not responsible for providing operator or other training unless Customer specifically request in writing and BGES agrees to provide such training (Customer being responsible to obtain all training that Customer desires prior to the Equipment’s use); (f) only authorized individuals shall use and operate the Equipment (“authorized individuals” being those who are properly trained to use the Equipment and who are not under the influence of drugs or alcohol or otherwise impaired); (g) the Equipment’s use shall be in a careful manner, in compliance with all operational and safety instructions provided on, in or with the Equipment and all Federal, State and local laws, permits and licenses, including but not limited to, OSHA, as revised; and (h) the Equipment shall be kept in a secure location.
Trailer Hitch Use
The Lessee agrees to inspect the trailer coupling mechanism and safety chain before leaving The Lessor’s premises. The Lessee also agrees to inspect the equipment at a minimum of every 100 miles and to maintain the coupling and chain in a safe and secure condition. The Lessor is not liable for damage to the Lessee’s bumper or automobile done by detachable hitches.
Customer shall not (a) remove any operational or safety instructions; (b) assign its rights under the Contract; (c) move the Equipment from the Site Address without BGES’s written consent; or (d) use the Equipment in a negligent, illegal, unauthorized or abusive manner, or in any publication (print, audiovisual or electronic) nor allow the use of the Equipment by any unauthorized individual (Customer acknowledging that the Equipment may be dangerous if used improperly or by untrained parties).
Customer shall perform daily maintenance on the equipment, including daily inspections and maintenance of fuel, fluids, oil levels, grease fittings, safety adjustment, filters, leaks, cooling system, water, batteries, cutting edges, and cleaning in accordance with the manufacturer’s specifications. All other maintenance or repairs may be performed by BGES, but BGES has no responsibility during the Rental Period to inspect or perform any maintenance or repairs unless Customer requests service. If equipment becomes unsafe or in disrepair, Customer agrees to discontinue use and notify BGES; Customer agrees not to use equipment until inspected by BGES. If BGES determines that repairs to the Equipment are required, other than Ordinary Wear and Tear, Customer shall pay the full cost of repairs and rental of the Equipment until the repairs are completed. “Ordinary Wear and Tear” means normal deterioration considered reasonable in the equipment rental industry for one shift use. BGES has the right to enter and inspect the Equipment wherever located. Customer has the authority to and hereby grants BGES the right to enter the physical location of the Equipment for the purposes set forth herein. BGES 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 BGES’s breach of the Contract. If Customer breaches this agreement, BGES shall have no obligation to stop the Rental Period, commence repairs or rent other equipment to Customer until Customer or its agent has inspected such Equipment and agreed to pay for such costs.
BGES does not design or manufacture the Equipment or Supplies and is not the agent of the parties that do. BGES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND SUPPLIES, THEIR DURABILITY, CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THE SUPPLIES AND EQUIPMENT ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS” AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST BGES. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE EQUIPMENT AND RELEASES BGES FROM ALL LIABILITIES AND DAMAGES (INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES) IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION OR USE OR ANY DEFECT OR FAILURE THEREOF OR A BREACH OF BGES’S OBLIGATIONS HEREIN.
DURING THE RENTAL PERIOD, CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE POSSESSION, CUSTODY AND OPERATION OF AND FULL RESPONSIBILITY FOR, THE EQUIPMENT AND SUPPLIES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, RENTAL CHARGES, LOSSES, DAMAGES AND DESTRUCTION, INCLUDING CUSTOMER TRANSPORT, LOADING AND UNLOADING. “Incident” is any fine, citation, theft, accident, casualty, loss, injury, death or damage to person or property, claimed by any person, or entity that appears to have occurred in connection with the Equipment. After an Incident, Customer shall (a) immediately notify BGES, 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 BGES or its agents investigate; (c) immediately submit to BGES copies of all police or other third party reports; and (d) as applicable, pay BGES, in addition to other sums due herein, the rental rate for Equipm ent until the repairs are completed or Equipment replaced plus (i) the manufacturer’s suggested list price on the date of the loss (“MSLP”) of the lost or destroyed equipment (“lost” being when Equipment’s location is unknown, or Customer is unable to recover for a period of 30 days); or (ii) the full cost of repairs of damaged Equipment. Accrued rental charges shall not be applied against these amounts. BGES shall have the immediate right, but not obligation, to reclaim any Equipment involved in any Incident.
Release and Indemnification
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, HOLDS BGES HARMLESS AND AT BGES’S REQUEST, DEFENDS BGES (WITH COUNSEL APPROVED BY BGES), FROM AND AGAINST ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES) HOWEVER ARISING OR INCURRED, RELATED TO ANY INCIDENT, DAMAGE TO PROPERTY, INJURY TO, OR DEATH OF, ANY PERSON OR CONTAMINATION OR ALLEGED CONTAMINATION, OR VIOLATION OF LAW OR REGULATION CAUSED BY OR CONNECTED WITH (i) THE USE, POSSESSION OR CONTROL OF THE EQUIPMENT (DURING THE RENTAL PERIOD) OR SUPPLIES OR (ii) BREACH OF THE CONTRACT, WHETHER OR NOT CAUSED IN PART 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’S INDEMNITY OBLIGATIONS SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THE CONTRACT. IF ANY PART OF THIS SECTION IS DETERMINED INVALID BY A COURT OF COMPETENT JURISDICTION, CUSTOMER AGREES THAT THIS CLAUSE SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW. Limitation of BGES’s Liability. IN CONSIDERATION OF THE RENTAL OF THE EQUIPMENT, CUSTOMER AGREES THAT BGES’S LIABILITY UNDER THE CONTRACT, INCLUDING ANY LIABILITY ARISING FROM BGES’S OR ANY THIRD PARTY’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 THE CONTRACT.
During the Rental Period, Customer shall maintain, at its own expense, the following minimum insurance coverage: (a) general liability insurance of not less than $1,000,000 per occurrence, including coverage for Customer’s contractual liabilities herein such as the release and indemnification clause contained above; (b) property insurance against loss by all risks to the Equipment, in an amount at least equal to the actual cash value, unless a Damage Waiver is elected and paid for; (c) worker’s compensation insurance as required by law; and (d) automobile liability insurance (including comprehensive and collision coverage, a hired and non-owned vehicle endorsement and uninsured/underinsured motorist coverage), in the same amounts set forth in subsections (a) and (b). If Customer rents crane equipment, as designated on the rental invoice, Customer shall also maintain excess insurance of not less than $2,000,000 per occurrence. Such policies shall be primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, name BGES as an additional insured (including an additional insured endorsement) and loss payee, and Customer shall provide at least 30 days prior written notice of any cancellation or material change in such insurance. Any insurance that excludes boom damage or overturns is a breach. Customer shall provide BGES with Certificates of Insurance evidencing the coverage’s required above prior to any rental and any time upon BGES’s request. To the extent BGES carries any insurance; BGES’s insurance will be considered excess insurance. THE INSURANCE REQUIRED HEREIN DOES NOT RELIEVE OR LIMIT CUSTOMER OF ITS RESPONSIBILITIES, INDEMNIFICATION OR OTHER OBLIGATIONS PROVIDED HEREIN, OR FOR WHICH CUSTOMER MAY BE LIABLE BY LAW OR OTHERWISE.
If Customer has elected the Damage Waiver and the Equipment is lost, stolen, damaged or destroyed, then Customer’s repair or replacement responsibility is modified by the Damage Waiver and BGES shall assume risk of damage to the equipment , except the following risks assumed by the Lessee: A) theft or malicious mischief, if not reported to the Lessor and local police by the Lessee within 24 hours of discovery (the Lessee shall provide to the Lessor a copy of the Police Report on all Losses covered under the damage waiver plan within 24 hours of receipt from the investigating authority), B) loss, damage or theft of accessory equipment (extension cords, hoses, points, chisels, floor polisher brushes, & etc.), C) loss or damage resulting from overloading, exceeding rated capacity, misuse, abuse, or improper servicing of equipment, D) any tire damage, E) damage incurred during an illegal act by Lessee, F) damage caused by an operator other than Lessee’s authorized employee, G) damage that is the result of a collision, overturning, striking an overhead object, or sinking in mud, H) loss due to Acts of God. THE DAMAGE WAVIER IS NOT INSURANCE AND DOES NOT PROTECT CUSTOMER FROM LIABILITY TO BGES OR OTHERS ARISING OUT OF POSSESSION OR OPERATION OF THE EQUIPMENT, INCLUDING INJURY OR DAMAGE TO PERSONS OR PROPERTY. THE EXCLUSIONS ARE RISKS ASSUMED BY CUSTOMER. BGES shall be subrogated to Customer’s rights to recover against any person or entity relating to any loss, theft damage or destruction to the Equipment. Customer shall cooperate with, assign BGES all claims and proceeds arising from such loss, theft, damage or destruction, execute and deliver to BGES whatever documents are required and take all other necessary steps to secure in BGES such rights.
Recovery of Equipment
Notwithstanding anything to the contrary in the Contract, if lost or stolen Equipment is later recovered, BGES retains ownership of the Equipment regardless of any payments made by Customer or Customer’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. Rental Rates. The total rental charges specified in the Contract are estimated based upon Customer’s representation of the estimated Rental Period identified on the Contract hereof. Weekly and monthly rental rates shall not be prorated. Customer is responsible for (i) all rental rates, fees, license, taxes and governmental charges based on Customer’s use of the Equipment; (ii) delivery and pickup costs to and from the Store; (iii) maintenance, repairs and replacements to the Equipment as provided herein; (iv) fees for lost keys; (v) fuel used during the Rental Period (Customer may either return the Equipment fully fueled or a fuel charge shall be assessed (designed to cover BGES’s direct and indirect costs of refueling the Equipment)); and (vi) fines for use of dyed diesel fuel in on-road Equipment.
Customer shall pay amounts due, without any offsets, in full at the time of rental, unless BGES approves Customer’s executed credit application (credit customers must pay, upon receipt of BGES’s invoice). Customer must notify BGES in writing of any disputed amounts, including credit card charges, within 15 days after the receipt of the invoice/contract or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. At BGES’s discretion, any credit account with a delinquent balance may be placed on a cash basis, deposits may be required and the Equipment may be picked up without notice. The Lessor, at its own discretion, may revert all charges to a daily rate if monthly statements or invoices are not paid on due dates. Customer agrees that a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law shall be assessed on all delinquent accounts, until paid in full. Deposits are only required to be returned after all amounts are paid in full. Customer agrees that if a credit card is presented to pay for charges or to guarantee payment, Customer authorizes BGES to charge the credit card all amounts shown on the Contract and charges subsequently incurred by Customer, including but not limited to loss of or damage to the Equipment and extension of the Rental Period. Payment terms on sale of supplies is Net 30.
Return of Equipment
“Rental Period” commences when the Equipment is delivered to Customer or the Site Address and continues until the Equipment is returned to the Store during normal business hours provided Customer has otherwise complied with the Contract. BGES may terminate the Contract at any time, for any reason. At the end of the Rental Period, the Equipment shall be returned to BGES in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. The Rental Period and the Contract shall not delivered the Equipment to Customer, Customer shall notify BGES that the Equipment is ready to be picked up at the Site Address and obtain a “pick-up” number from BGES evidencing such call (“Pick Up Number”), which Pick Up Number Customer should keep as proof of the call; provided Customer remains liable for any loss of or damage to the Equipment until BGES confirms that the Equipment is returned in the condition required herein. Customer will not be charged the rental charges from the date the Pick-Up Number is given, provided Customer has otherwise complied with the Contract. Once a pickup number has been issued, the Customer agrees to discontinue use and place equipment in a secure location that can be easily accessed by the driver. Multiple attempts to pick up equipment because of Customer’s failure to provide access to such equipment, may result in additional pickup charges. No pickups occur on Saturdays or Sundays. If Customer picked up Equipment, Customer shall return Equipment to the same Store during that Store’s normal business hours. If the Equipment is not returned by the estimated end of the Rental Period specified on the Contract hereof, Customer agrees to pay the applicable rental rate for the Equipment until the end of the Rental Period. The Lessor, in its sole discretion, may report as stolen all personal property not returned within the date listed in the “Date and Time Due In” section of the contract or if conditions and circumstances indicate theft before that time.
Customer shall be in default if Customer: (a) fails to pay sums when due; (b) breaches any provision of the Contract; (c) becomes a debtor in a bankruptcy proceeding, or goes into receivership; (d) places the Equipment at risk if BGES, in good faith, deems itself insecure; (e) fails to return Equipment immediately upon BGES’s demand; or (f) is in default under any other contract with BGES. If a Customer default occurs, BGES shall have, in addition to all rights and remedies at law or in equity, the right to repossess the Equipment without judicial process or prior notice. Customer shall pay all of BGES’s costs, including reasonable costs of collection, court costs and attorney’s fees, incurred in exercising any of its rights or remedies herein. The use of false identification to obtain Equipment or the failure to return Equipment by the end of the Rental Period may be considered theft, subject to criminal prosecution and civil liability where permitted, pursuant to applicable laws. BGES shall not be liable due to seizure of Equipment by order of governmental authority. CUSTOMER WAIVES ANY RIGHT OF ACTION AGAINST BGES FOR SUCH REPOSSESSION.
Jury Trial Waiver
TO THE EXTENT PERMITTED BY LAW, IN ANY ACTION TO ENFORCE OR INTERPRET THE CONTRACT, THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENT TO ENTERING INTO THE CONTRACT.
Sale of Supplies
Prices on BGES website, catalogs or in BGES quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within ten (10) calendar days from the date of issue, unless otherwise noted by BGES in writing. Price extension, if made, are for Customer’s convenience only and they, as well as any mathematical, stenographic or clerical errors, are not binding on BGES. Prices shown do not include any sales, excise or other governmental tax or charge payable by BGES to any federal, state or local authority. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price and Customer shall reimburse BGES for any such tax or provide BGES with an acceptable tax exemption certificate. All prices and other terms provide to Customer shall be kept confidential except to the extent a Party is required by law to disclose the same. If the Contract identifies any Equipment that is to be purchased by Customer, BGES sells and delivers such Equipment to Customer on an “AS IS, WHERE IS” with all faults and without any warranties (other than manufacturer warranties, if any) in consideration for Customer’s payment to BGES of the full purchase price of the Equipment, BGES retains title to the Equipment until Customer has paid in full. Any change in product specifications, quantities, destinations, shipping schedules or any other aspect of the supplies must be agreed to in writing by BGES and may result in a price and delivery adjustment by BGES. No credit for supplies returned by Customer shall be given without BGES written authorization. All returns are subject to a restocking charge. Customer shall not export or re-export, directly or indirectly, all or any part of the goods or related technology obtained from BGES under these Terms except in accordance with applicable export laws and regulation of the U.S. Further, a Customer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen.
Delivery of Supplies
When goods are delivered to Customer in BGES vehicles, the F.O.B. point shall be Customer’s designated delivery site. In all other cases, the F.O.B. point shall be the BGES store or warehouse and all responsibility and costs of shipping and delivery beyond the applicable F.O.B. point shall be borne by Customer. Title and risk of loss shall pass to Customer at the applicable F.O.B. point, which for goods not delivered in BGES vehicles shall be when BGES delivers the goods to the common carrier. All claims for shortage of goods or for the loss or damage to goods as to which BGES has the risk of loss shall be waived unless Customer, within 10 calendar days after receipt of the short or damaged shipment, gives BGES written notice fully describing the alleged shortage or damage. Partial shipments are permitted in BGES’s discretion.
The Contract, together with any Customer executed credit application, constitutes the entire agreement of the parties regarding the Equipment and may not be modified except by written amendment signed by the parties. The parties expressly and irrevocably agree; (a) the Contract, including any related tort claims, shall be governed by the laws of Alabama, without regard to any conflicts of law principles; and (b), if any provision of the Contract is prohibited by any law, such provision shall be ineffective to the extent of such prohibition without invalidating the remaining provisions. Customer’s obligation hereunder shall survive the termination of the Contract. Headings are for convenience only. A photo or fax copy of the Contract shall be valid as the original. Any failure by BGES to insist upon strict performance of any provision of the Contract shall not be construed as a waiver of the right to demand strict performance in the future. Customer and the person signing the Contract represent that: (i) they both have full authority to execute, deliver and perform the Contract; and (ii) the Contract constitutes a legal, valid and binding obligation of Customer, enforceable in accordance with its terms.