Eagle Leasing Company, Inc. (“Lessor”) hereby leases the Equipment (as defined in Paragraph 2) to the customer (“Lessee”) subject to the terms and conditions below. By (i) providing a written or electronic signature, (ii) accepting delivery of the Equipment, (iii) attempting to or in any way use the services of Lessor, (iv) loading or storing goods in the Equipment or (v) paying for any services of Lessor, Lessee shall be deemed to accept the terms and conditions set forth below, which constitutes a binding legal agreement with Lessor. Please read these terms carefully and print a copy for your records.
1. ENTIRE AGREEMENT:
A. This Agreement contains all of the terms and conditions between the parties. No agreements, understandings or representations not specifically contained herein shall be binding upon any of the parties hereto.
B. This is an Agreement of lease only and not a sale. Lessee does not acquire hereunder, or by payment of said lease, any right, title or interest in or to the Equipment other than the right to possess and use the Equipment provided the Lessee shall not be in default in performance hereunder. Lessee is not Lessor’s agent for any purpose.
C. Lessor may modify this Agreement to reflect changes in the law or to Lessors services. Lessor will post the revised Agreement on the Eagle Leasing Company website. Please review the site on a regular basis to obtain timely notice of any revisions. If the Equipment remains on lease after the revisions take effect, Lessee agrees to be bound by the revised agreement.
2. DEFINITIONS:
“Lessee” includes the person signing this Agreement and any other person or organization to whom charges are to be billed or for whom such person is signing, all of whom shall be jointly and severally liable hereunder. “Equipment” includes the truck, tractor, trailer or container identified in this Agreement and all tires, tools, accessories, appurtenances or other equipment attached thereto or contained therein.
3. WEIGHT DISTRIBUTION:
For storage and road trailers, Lessee shall load the Equipment in a manner which will evenly distribute the weight. For storage loads in excess of 15,000 lbs. gross weight, additional proper support shall be provided by Lessee at the king-pin assembly and wherever else necessary. Lessee shall fully indemnify Lessor for any and all costs, damage and expenses resulting from Lessee’s failure to provide such support.
4. PROHIBITED MATERIALS/USES:
A. Lessee shall store in the Equipment only personal property that Lessee owns and will not store property that is claimed by another or in which another has any right, title, or interest. The use of this Equipment for any purpose involving illegal items, hazardous waste, contaminated materials, garbage, salt, ice melt, refuse or similar materials is prohibited. Lessee shall indemnify Lessor from any fines, forfeitures, seizures, penalties and liabilities arising from any violation of any law or regulation by Lessee or its employees or by any other person or arising from the use, possession, operation or condition of the Equipment. In the case of storage or road trailers, It is Lessee’s responsibility to secure the Equipment on site by providing chock blocks or dock ties to prevent any inadvertent movement. Lessee shall indemnify the Lessor from any and all claims, liens, or liability arising from work being performed or materials supplied in connection with the operation of the Equipment and from loss or damage thereto and from and against all loss, penalties and expenses, including attorney’s fees, however arising because of, but not limited to, the storage, maintenance, use, repair, loading, unloading, inadvertent movement, or operation of the Equipment. Lessee shall be responsible for all costs of disposal and decontamination of the Equipment it is used for any prohibited purpose involving hazardous waste or contaminated materials.
B. Equipment leased for storage shall not be used in over-the-road operations without written permission from Lessor. Unauthorized use of a storage trailer as a road trailer shall be considered a default of this Agreement and subject Lessee to billing for such Equipment at the then prevailing over-the-road rate for every four-week period from the inception of this Agreement and the remedies set forth in Section 21.
C. Equipment rented for storage shall not be moved from its original location. Lessee’s unauthorized movement of a storage Equipment shall permit termination of this Agreement at Lessor’s election and Lessee shall be responsible for all movement costs and any damages to Lessee’s personal property that may arise as a result of any unauthorized movement, and for the pick-up and return of the moved Equipment.
5. SUBLEASE:
Lessee shall NOT have the right to assign this Agreement or to sublet, rent, hire out or part with possession of any Equipment.
6. ROAD TRAILERS:
A. Road trailers shall not be operated by any person other than Lessee or agents or employees of Lessee each of whom Lessee warrants to be duly qualified and possessing a currently valid operator’s license not revoked, suspended or limited.
B. Lessee assumes full responsibility for any additional expense incurred by reason of a breakdown of a road trailer whether or not causing a delay enroute, including, but not limited to, storage forwarding cost and subsistence expense. Lessee shall, at its sole expense, (i) provide daily safety inspections of the road trailer, (ii) maintain lighting on the road trailer, including bulbs and lens replacement and (iii) pay for all flat tires and any mechanical damage to the road trailer caused by failure to maintain adequate tire pressure, oil in oil seals or by reason of any neglect in servicing or maintenance of the road trailer while under Lessee’s custody or control. Lessee shall have the responsibility of making all repairs to damages immediately after they occur.
C. Mileage shall be determined by reading hubodometer in such cases as there may be a hubodometer. In the event there is not a hubodometer and a mileage charge is agreed upon, Lessee shall report to the Lessor the mileage which the road trailer used and the Lessor shall have the right and privilege to examine the Lessee’s vehicles and/or records and a mileage shall be equitably determined by the Lessor. Lessee shall be billed weekly for estimated weekly mileage and shall pay such bills upon receipt subject to adjustment when Lessee advises Lessor of correct mileage. The mileage charge only covers normal wear and tear. Lessee shall be responsible for flat tires and any damages (as set forth in section 14).
D. Equipment Return. Upon termination of this Agreement, Lessee shall return all road trailers to the Lessor location where it was originally leased in the same condition as it was received, reasonable wear and tear excepted. Lessor reserves the right to change the return location upon ten days prior written notice to Lessee. If Lessee returns the road trailer to a different location than where it was rented, Lessor may in its absolute discretion charge Lessee a relocation fee of no less than $300 (“Relocation Fee”).
E. Violations/Citations. Lessee shall be solely responsible for payment of all traffic and parking tickets or citations, for parking violations, moving violations, photograph or radar tickets, highway weight stations citations/tickets, automated toll violations, toll fees and fines, and all similar tickets and/or citations, and Lessee shall reimburse Lessor for all such tickets, tolls, fines, penalties and/or citations that Lessor pays relating to the trailer and further pay Lessor a $75 processing fee for each such item paid by Lessor.
7. GENERATORS:
A. Title. At all times during the term of this Agreement, all generators provided by third party suppliers of Lessor (“TPS”) for use by Lessee hereunder, including without limitation, all machinery, equipment, tools, fixtures, vehicles, trailers, consumables, tools, parts, accessories and attachments thereto (“Generator”) remain the property of TPS, even if the Generator may become affixed or attached to realty.
B. Maintenance. At the time of delivery, the Generator shall have been maintained and serviced in accordance with TPS’s commercially reasonable standards of maintenance and service. Lessee shall be responsible to monitor the fuel level and shall check the oil and radiator of the engine-driven Generator on a daily basis and shall be responsible for changing the oil and filter in each unit in accordance with the manufacturer’s recommendations or as indicated on the Generator unless other arrangements are made and agreed to in writing by TPS or Lessor. Manufacturer’s Operator Manuals (including Operating Instructions and Safety Advisories) for the Generator are available upon request. Lessee shall be responsible for cleanup and restoration charges upon return of the Generator if power washing will not restore the Generator to its pre-rental state (i.e. presence of concrete or spray paint, removal of decals, etc.).
C. Repairs. Lessee shall not attempt to service the Generator (and neither TPS or Lessor shall be responsible for payment of any such expenses) without the prior written authorization of Lessor and TPS. Repairs or replacement of the Generator, parts or accessories due to negligence or carelessness of Lessee shall be charged to Lessee at the Manufacturer’s list price.
D. Lessee (Fabricator/Contractor) Responsibilities. As the engineer of record, the determination of the suitability, compatibility and uses of the Generator, weld parameters, wire and shield gas combinations, weld size, weld strength and overall usability for materials supplied for welding any material are the sole responsibility of Lessee, which assumes all liability for loss, damage, and injury or death; and Lessor and TPS disclaim any liability, responsibility or obligation whatsoever in connection therewith. The library of welding procedures supplied by TPS shall serve solely as a guideline to Lessee, and Lessee shall remain solely responsible and liable for selecting and maintaining the parameters necessary to achieve its engineered welding specifications.
E. Equipment Loss. Except to the extent provided for by the Generator Damage Waiver (as defined below), Lessee assumes the entire risk of and shall indemnify Lessee and TPS against all loss and damage to the Generator and accessories arising from or pertaining to the installation, possession, operation or use of the Generator or from any cause whatsoever while the Generator is within the care, custody, or control of Lessee. Any missing Generators or related equipment or damage claimed by either Lessee or TPS/Lessor must be made known in writing to the other party within two weeks after receipt by such claimant of the Generator. In the event of total loss of any Generator by Lessee, this Agreement shall remain in effect and shall not be terminated until Lessee has confirmed the loss to TPS and Lessor and TPS or Lessor has invoiced Lessee for the loss.
F. Insurance. Throughout the Agreement, Lessee shall maintain, at its own expense, (a) Commercial General Liability Insurance, with minimum limits of $2 million, per occurrence; (b) Automobile Liability Insurance, with minimum limits of $1 million, per occurrence; (c) Workers ’ Compensation Insurance, in accordance with statutory requirements; and (d) Inland Marine Insurance, covering the guaranteed replacement value of the Generator and accessories provided by TPS hereunder. Lessee shall list “Eagle Leasing Company, Inc..” and “Red-D-Arc Inc.” as additional insured and loss payee on all policies of insurance, except for Workers ’ Compensation. shall be authorized to modify its insurance requirements at any time in its sole discretion. Lessee shall provide confirmation of such coverage to Lessor or TPS upon request and shall provide TPS and Lessor with prior written notice of any changes to any such policy of insurance. TPS nor Lessor shall be under any duty either to ascertain the existence of, or to examine such insurance policy or to advise Lessee in the event such insurance coverage does not comply with the requirements of this Agreement.
G. Itemized Charges. The total amount due from Lessee may include various itemized charges, including: charges for the handling of hazardous materials and for compliance with laws and regulations concerning hazardous materials; charges for handling, delivery, and shipping; and/or charges for energy or fuel. None of the charges represent a tax or fee paid to or imposed by any governmental authority, and all of the charges are retained by Lessor. Lessor has not specifically quantified the relationship between the charges and the actual costs associated with the charges, which can vary by product, service, time and place, among other things.
H. Lease Rate. Lease rate on the Generator Is based on single shift duty (0-40 hours per week or 0 to 160 hours per 4 weeks). For double shift duty (40-80 hours per week or 160-320 hours per 4 weeks) multiply shift rate by 1.5. For triple shift duty (unlimited use 80+ hours per week or 320+ hours per 4 weeks) multiply singe shift rate by 2.0.
I. Damage Waiver. Lessee may pay the applicable charges for the Generator Damage Waiver. Subject to the conditions noted below, Lessor shall not claim payment or reimbursement from Lessee for repairs to and/or replacement of the Generator to the extent that the loss or damage occurred while the Generator was under the care, custody or control of Lessee and was being used: (a) for the purpose(s) for which it was intended; (b) in accordance with and in a manner consistent with the Generator manufacturer ’s instructions; (c) under normal working conditions; (d) by a qualified operator; and (e) in compliance with these Terms and Conditions and all applicable laws, rules, regulations and codes. Lessor shall have no liability whatsoever to Lessee under the Generator Damage Waiver if the loss or damage to the Generator is caused by or arises out of or in connection with (whether directly or indirectly) the following: (a) Lessee’s failure to carry out regular basic servicing (including lubrication) of the Generator; (b) rollover or upset of the Generator due to improperly secured loads or overloading; (c) exceeding the rated capacity of the Generator; (d) reckless, careless or abusive operation or use of the Generator; (e) any riot, strike, lockout, boycott, acts of public enemies, war or civil commotion; (f) any fire, explosion, chemical reaction, geological hazards, water disasters, weather disasters, other natural disasters or events outside of human control; and (g) theft, vandalism, mischief, conversion, any other malicious act or mysterious disappearance. Lessee shall notify Lessor immediately of any damage to the Generator. This Generator Damage Waiver is not insurance.
J. Compliance With Laws. Lessee shall instruct its employees and agents to comply, and at all times Lessee shall comply with all applicable federal, state and local statutes, regulations and laws including without limitation any applicable anti-corruption/bribery laws and regulations. Lessee is responsible for obtaining any relevant operating or other local permits.
K. Offloading And Loading Of Generator At Lessee Location. Lessee is responsible for all costs and coordination related to providing appropriate forklift or other offloading equipment at Lessee’s location.
L. Waste Disposal Fee. Waste disposal fee will be applied to all invoices requiring the disposal of lubricants, antifreeze and waste products.
M. On Site Fuel Service (Optional). TPS can provide on site fuel through a third party vendor. Fuel consumption Is based on the Generator load. Fuel price Is subject to change without notice as market conditions dictate. Please inquire with Lessor for details.
N. Diesel/Unleaded Fuel Usage. Generator fuel tank will be delivered to Lessee full of fuel. Customer shall return Generator full of fuel. Lessee will pay to restore fuel level to full. All fuel prices are subject to daily market increases.
O. Limitation of Liability. Generators may present certain hazardous conditions or materials. Lessee agrees that it is fully aware of the potential hazards in using a Generator and hereby assumes all risks therewith. Lessor shall not be liable for injury, death, loss or damage of any kind, arising in any manner, directly or indirectly, from any delay, act, error or omission of Lessor, or from the services, parameters or any Generator or its presence or use, whether singly or in combination with other equipment, or for explosion. IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS OF PROFITS OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES ARISING HEREUNDER. LESSOR shall not be liable in damages or otherwise for any failure or delay in the performance of any obligation hereunder caused by strike, lockout, riot, war, terrorism, accident, act of God, industrial disturbance, governmental action or regulation, curtailment or failure to obtain Generator or sufficient or adequate raw materials, fuel, labor or utilities, industrial, transport, machinery, weld parameters or Equipment breakdown, or for any cause whatsoever beyond Lessor ’s reasonable control. Any claim for shortage in Generator or parts thereof is waived by Lessee unless made in writing to Lessor within five (5) days after delivery of the invoice therefor.
8. REEFER CONTAINERS:
A. Temperature: Reefer Containers, are designed to maintain the temperature of a product between -10°F and 80°F during transportation of storage and are not designed to substantially lower the temperature of a product (or to blast freeze a product). It is solely Lessee’s responsibility to determine if an ISO Refrigerated Container is the correct solution to their cold storage needs.
B. Power Requirements: Reefer Containers require 460V, 30amp 3 phase @ 60Hz power +/- 2-5% 208 or 230 VAC 50amp 3-phase supply voltage is achievable with the purchase/rental of a Step-up Voltage Transformer. All electrical work must be performed by a licensed electrician and meet local electrical code.
C, Container Placement: Three (3) feet minimum clearance must be maintained from Reefer Container machinery at all times. For the most efficient operation use Reefer Container outdoors or in a well ventilated area. Reefer Container must be placed on level ground within forty (40) feet of power source.
D. Loading: Reefer Containers supply cold air across the top near the ceiling. It is critical that a clearance of 20” is maintained from the top of the product to the ceiling. When loading the container with product, small air gaps should be maintained along walls and between boxes/pallets to allow efficient air circulation and distribution. Return airrequires 24” minimum clearance directly under the evaporator, from bottom of evaporator to top of product.
E. Operation: Lessee must determine if the Reefer Container is suitable for their unique cold storage requirements. Lessee is responsible for the proper operation of the Reefer Container. Lessee must determine, set and maintain the proper temperature settings for their product. Only set the desired temperature for your product. Setting the temperature lower or higher than the desired temperature can damage your product, because the unit controller logic can shift from discharge temp control to R\return temperature control or vice-versa. Lessee must provide constant monitoring of the Reefer Container, temperature and products stored. Lessee must turn off the Reefer Container before opening the doors, limiting the time doors remain open and restarting the refrigeration unit after doors are closed again. Lessee must ensure doors are not opened for long durations of time or too frequently. Operating the Reefer Container while loading does not expedite cooling. Doing so could delay cooling if the evaporator coil ices, requiring a defrost after the doors are closed. Lessee is responsible for condenser and evaporator section cleanliness and monitoring the evaporator section for icing conditions. Lessee must maintain proper condition or power cord, container interior, exterior, doors and gaskets. Lessee must provide Interior lighting, if required.
F. Maintenance and Safety: In addition to the maintenance requirements set forth in Paragraph 15 below, Lessee is soley responsibility for the safety of persons entering the Reefer Container, and to train employees and persons that have access to the Reefer Container on the risks and implement policies to prevent accidents or accidental entrapment. Lessee also agrees to hold Lessor harmless and indemnify Lessor from any liability in case of injury or death. Lessee is responsible for monitoring the Reefer Container and its contents stored inside and to ensure proper temperature is maintained and that it is Lessee’s responsibility to ensure reefer doors stay closed and contact Lessor immediately if the unit fails to maintain temperature. In the event a service technician is called to repair the Reefer Container as a result of the following conditions, Lessee will be financially responsible for the service call; loss of supply power including tripped breaker or blown fuses, iced evaporator coils or unit needing a defrost, dirty condenser or evaporator coils. Lessee agrees to hold Lessor harmless and indemnify Lessor from any loss of product. Lessee is the only person in this agreement that has the access and ability to ensure the safety of personal accessing the Reefer Container as well as safeguard the product stored inside.
9. LEASE PERIOD/LEASE RENEWAL:
All leases shall be for the minimum term specified on the face hereof starting on the date of delivery. At any time thereafter, the Lessor may change any of the rates or charges for the Equipment or, in the case of a road trailer, may require Lessee to return the road trailer to the location designated by the Lessor. LESSOR DOES NOT PRO-RATE ANY LEASE PERIOD.
10. VEHICLE ACCESSIBILITY:
At the expiration of the lease, Lessee shall, at its sole cost and expense remove ALL OBSTRUCTIONS which would prevent access to the Equipment or otherwise hinder Lessor in removing the Equipment. In the event any obstructions, whether caused by Lessee, its agents, others or an act of God, are not removed, then Lessor may at its discretion (i) remove said obstructions and/or charge Lessee for any expenses incurred to remove the Equipment including, but not limited to, towing charges, snow removal, crane rental, etc., or (ii) cause the Equipment to remain on rental until Lessor is compensated for the Equipment’s full replacement value.
11. PICKUP/DELIVERY/MOVEMENT:
A. Lessee will pay the delivery, pick-up and/or movement charge set forth in this Agreement. In the event Lessee or its agent causes the delivery, pick-up or movement to take longer than reasonably expected, then, and in that event, Lessee shall pay the sum of $150 per hour for such additional time.
B. In connection with such delivery, pick-up and/or movement, Lessee authorizes Lessor or its agents to drive on Lessees lawn or other paved or non-paved area in order to place the Equipment in the area designated by Lessee, and shall indemnify Lessor from any and all claims for any damages to property including, but not limited to, lawns, fences, shrubs, sprinklers, driveways, buildings, septic systems, sidewalks, etc. Lessee will be responsible for the payment of all towing charges, etc. for any vehicle of Lessor in connection with such delivery, pick-up and/or movement.
C. Lessor’s delivery of the Equipment may be subject to delays beyond Lessor’s control. Lessee shall have no claim against Lessor for consequential or any other damages as a result of any such delay.
D. Prior to a pick-up notification, Lessee shall be responsible to have the Equipment accessible, emptied and swept out and shall remove all locks and any utility hookups from the Equipment.; failure to do so will cause the Equipment to remain on rent and be subject to an attempted pickup charge. Upon termination of this Agreement and notification by Lessee, Lessor shall have 28 days to remove the Equipment from Lessee’s premises.
E. Upon delivery the site must be dry, level and accessible by standard truck delivery including the removal of any snow, water or other obstacles
F. With respect to Office Trailer deliveries Lessor recommends that the Office Trailer be anchored to reduce damage to it, injury to occupants or other persons, and the property of third parties.
12. LICENSES/PERMITS:
Lessee shall (a) obtain and pay for all trip permits, licenses or special fees or taxes required by law or regulation where Lessee operates the Equipment, and (b) promptly pay for all traffic and parking violations, fines and penalties.
13. INSPECTION:
Lessee has inspected the Equipment and the condition of the Equipment is satisfactory to Lessee for Lessee’s use. Lessee shall inspect the interior of the Equipment no less than monthly to insure that the Equipment has not been compromised in any way and continues to be satisfactory to the Lessee for the Lessee’s use. Lessee shall notify Lessor of any defects or issues immediately after an inspection.
14. RISK OF LOSS:
A. The Equipment is not suitable for the storage of heirlooms or precious, invaluable or irreplaceable property such as furniture, works of art, books, records, writings, photographs, objects for which no immediate resale market exists, objects which are claimed to have special or emotional value to Lessee and records or receipts relating to the stored goods, etc.
B. While the Equipment is rented or in the possession or control of Lessee, all risk of loss of the Equipment or its contents is the responsibility of Lessee. If the Equipment is lost, stolen, abandoned or determined by Lessor to be substantially damaged or inoperable, the Equipment shall remain leased until Lessor is compensated by Lessee for the full replacement value. If the Equipment is lost or stolen, Lessee is obligated to report the Equipment stolen with the appropriate authorities and to file a claim with its insurance company.
C. When used herein, “Tiedowns” means tiedowns, earth anchors, seismic and/or wind restraints. In the event that Tiedown installation is not expressly listed in the rental order, Lessee, at Lessee’s sole judgement and discretion, has effectively rejected Lessor’s offer to install Tiedowns on the Equipment at the sole risk and liability of Lessee. Lessor shall bear no liability for any damages to person or property in or around the Equipment or to the Equipment or any accessories, nor shall Lessor be liable for any injuries, including death, that may occur in connection with Lessee’s determination that Tiedowns are not required. It is the sole responsibility of Lessee to ensure compliance with all requirements of any applicable governmental authority pertaining to the foundation system of the Equipment and any required Tiedowns. In the event that Lessee elects to have Tiedowns installed, the following terms and conditions are applicable: (a) Lessor does not warrant that Lessee’s site conditions will be adequate for the seismic/wind restraint system; (b) upon request, Lessor may provide a recommendation of the number of earth anchors based on the size and type of Equipment, it being understood and agreed by Lessee that Lessor’s recommendation is not a guaranty or warranty of any kind as to the number of required earth anchors; and (c) at the time of installation of earth anchors, in the event that ground penetration is hindered by elements such as large rocks, lime, cement, utility lines, etc., Lessee is solely responsible for all costs associated therewith, including replacement of broken earth anchors. In the event of any damage to utility lines, the cost of repairs will be borne solely by Lessee; and at the time of return of the Equipment, Lessor will cut the straps of the earth anchors in order to remove the Equipment and Lessee shall be responsible for removal of the earth anchors from the Site. Lessor shall not be responsible for any patching or other repairs to the site ground surface that may be required following removal of earth anchors.
D. LESSOR DISCLAIMS AND EXCLUDES AND LESSEE WAIVES ALL WARRANTIES OF ANY KIND AND NATURE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE EQUIPMENT IS LEASED “AS IS”.
E. LESSOR SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OF ANY NATURE, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHERWISE, DUE TO ANY REASON, INCLUDING DAMAGES TO GOODS OR ITEMS PLACED IN THE EQUIPMENT. LESSEE ASSUMES ALL RISK OF DAMAGE WHETHER OR NOT CAUSED BY OR RELATED TO THE NEGLIGENCE OR FAULT OF LESSOR, ITS AGENTS OR EMPLOYEES.
F. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE LESSOR AGAINST ALL LOSS AND DAMAGE LESSOR MAY SUSTAIN OR SUFFER BECAUSE OF (A) THE LOSS OF OR DAMAGE TO THE EQUIPMENT, OR (B) THE DEATH OF OR INJURY TO, OR DAMAGE TO THE PROPERTY OF, ANY THIRD PERSON AS A RESULT OF, IN WHOLE OR IN PART, THE USE OR CONDITION OF THE EQUIPMENT, WHETHER SUCH EVENT OCCURS ON LESSOR’S PREMISES OR ANYWHERE ELSE. THE INDEMNIFICATION OBLIGATION OF LESSEE AS SET FORTH ABOVE SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON AMOUNT OR TYPE OF DAMAGES, COMPENSATION, OR BENEFITS PAYABLE BY OR FOR LESSEE UNDER WORKERS’ COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER EMPLOYEE BENEFIT ACTS. THIS INDEMNIFICATION PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.GF. IN THE EVENT LESSEE IS LEASING PORTABLE ALUMINUM STAIRS, THE PLACEMENT AND/OR INSTALLATION OF THE LEASED STAIRS ARE THE RESPONSIBILITY OF THE LESSEE. LESSOR SHALL NOT BE HELD LIABLE FOR DAMAGES, INCONVENIENCE OR TIME LOST BY ACCIDENT, BREAKDOWNS OR MALFUNCTIONING OF THE PORTABLE STAIRS. LESSEE FURTHER AGREES TO HOLD THE LESSOR HARMLESS SHOULD DAMAGES OCCUR TO ANY OF THE LESSEE’S PERSONAL PROPERTY WHILE CARRIED IN, OR ON, SUCH STAIRS INCLUDING LOSS OR DAMAGES CAUSED BY FIRE, WATER AND THEFT. LESSEE FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS THE LESSOR AND ITS EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS FOR LOSS OF OR DAMAGE TO PROPERTY OR INJURY TO PERSONS (INCLUDING DEATH) RESULTING THROUGH THE USE, OPERATION OR POSSESSION OF SAID PORTABLE STAIRS.
G. LESSEE’S OBLIGATIONS TO LESSOR PURSUANT TO THIS AGREEMENT WITH RESPECT TO THE EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO RESPONSIBILITY FOR DAMAGES, RELOCATION, RETURN, MAINTENANCE AND REPAIRS, INSURANCE AND INDEMNITY) SHALL ALSO APPLY WITH RESPECT TO THE ACCESSORIES UNLESS OTHERWISE EXPRESSLY STATED.
15. EQUIPMENT MAINTENANCE/DAMAGE:
A. Lessee will, at Lessee’s cost, maintain and return the Equipment in good repair and operating condition, ordinary wear and tear excepted, free of any liens, encumbrances and graffiti, and replace with new parts all badly worn or broken parts. With respect to office trailers and office containers, Lessee is solely responsible for routine maintenance, including, without limitation, janitorial services, pest control, changing of HVAC filters, light bulbs and ballasts, cleaning (by qualified HVAC technicians only) the HVAC condenser and evaporator coils, refilling HVAC refrigerant and removal of ice and snow from about the equipment.
B. If the Equipment is returned with items missing or requiring repairs, it shall remain leased until said replacements or repairs, acceptable to Lessor, have been made by Lessee. If Lessee elects not to make the required repairs and replacements and Lessor undertakes Lessee’s obligation, Lessor shall determine the amount due and the Vehicle shall remain leased until the date that Lessor’s invoiced amount is paid.
C. Lessor shall have no liability for any repairs or service to the Equipment or for any replacement tires or other parts, or for any unauthorized repairs or service to the vehicle made without the prior written approval of the Lessor.
D. Lessee shall not alter the Equipment in any way (including drilling holes, painting or affixing signs) nor shall Lessor allow any item to be placed on the roof of the Equipment and is responsible for removing any such items and any ice or snow from the roof of the Equipment and shall be solely responsible for any damage to the Equipment or its contents as a result of the failure to do so whether the Equipment is stored on Lessor’s premises or elsewhere.
E. Smoking/vaping is strictly forbidden in all office trailers and office containers. A $250 cleaning fee will be charged for smoking/vaping in office trailers or office containers.
F. In the event Lessee Is leasing a ramp, Lessee shall not alter ramps provided from Lessor from their Installed state. Any alterations or modifications of ramps may result in the failure to comply with applicable codes, regulations and ordinances and any such alterations or modifications, including cosmetic changes, may result in additional charges to Lessee for repairs or replacement of the ramp. A sloping site or other conditions may Impact the use of prefabricated ramps and may require customized configurations, which may result in additional charges to Lessee. Lessee Is responsible for making the transition from the end of the ramp to the existing grade of the site and such transition may require grading, paving or other site work by Lessee at Lessee’s sole cost and expense to ensure the finished ramp complies with all applicable codes, regulations and ordinances.
16. INSURANCE:
A. As described in section 14, all property stored in the Equipment is stored by Lessee at Lessee’s own risk. Insurance for the contents of the Equipment is Lessee’s sole responsibility.
B. Lessee will, at Lessee’s cost and expense, simultaneously with or prior to delivery, procure, deliver to Lessor and keep in full force and effect during the term of this Agreement, a valid and pre-paid business auto or trucker’s policy or policies covering hired autos, trailers and containers for bodily injury and property damage liability and including collision and comprehensive coverage for physical damage and a comprehensive general liability policy providing for contractual liability coverage for hold harmless agreements, all satisfactory to Lessor as to the insurer with a combined single limit of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) general aggregate and no more than a $500 deductible. The certificate of insurance must name Lessor as an “Additional Insured” with regard to the liability coverage and “Loss Payee” with regard to the physical damage coverage for the period from the delivery until the return of the Equipment. Lessee shall promptly notify the insurance carrier named on the certificate of insurance of any event which results in physical damage to the Equipment pursuant to the terms and conditions of said insurance policy. If Lessor determines that Lessee is not maintaining the proper insurance policies as required by this Agreement, (including those required In Paragraph 7, If applicable) Lessee shall be in default and Lessor shall be entitled to exercise remedies set forth in Paragraph 21 (A) or In the alternative, Lessor, at Its sole discretion, may obtain the required insurance on behalf of Lessee and charge Lessee the total cost of obtaining such insurance plus a $250 administrative fee for acquiring and carrying the Insurance. Notwithstanding the foregoing, with respect to office trailers and office containers where Lessee provides liability coverage but fails to maintain physical damage coverage, Lessor may, at its sole discretion, enroll Lessee in Lessor’s damage waiver program referenced in Paragraph 16(C) below at the then current rates until such time as physical damage coverage is provided. Notwithstanding the foregoing, the insurance requirements set forth herein shall not apply to storage containers and storage trailers and with respect to office trailers, office containers, reefer containers, and road trailers where Lessee participates in Lessor’s damage waiver program and pays the required additional fees, Lessee will only need to provide the liability coverage referenced above and not physical damage coverage.
C. The foregoing notwithstanding, Lessee may satisfy its obligation to maintain physical damage Insurance for (i) road worthy Equipment by participating in Lessor’s collision damage waiver (“CDW”) program and for (ii) all other Equipment, by participating in Lessor’s damage waiver program (together with the CDW hereafter referred to collectively as the “DW” program). To participate in Lessor’s DW program with respect to any Equipment, Customer must (i) expressly elect to participate in the DW program in the applicable Lease; (ii) timely pay all DW charges set forth in the Lease; and (iii) upon the occurrence of an event of loss, (A) report such occurrence to Lessor in writing within 72 hours, (B) file a police report (if the Equipment is stolen) and provide a copy to Lessor, together with any other documentation reasonably requested by Lessor, (C) pay Lessor the applicable DW Deductible, and (D) otherwise reasonably cooperate with Lessor with respect to such occurrence. If Lessee satisfies all of the obligations set forth in the immediately preceding sentence, Lessee will be relieved from all further liability for property damage arising from an event of loss unless such event of loss arises from or relates to (a) Lessee’s breach of any representation or warranty or failure to perform any obligation set forth in the Agreement (including, without limitation, Lessee’s failure to maintain the Equipment in accordance herewith); (b) the negligence, willful misconduct, or violation of law by Lessee or any of its employees, agents, contractors, or affiliates; (c) tire and/or wheel theft, unless the entire Equipment is stolen; (d) tire damage unless the tires are damaged during or as a result of a collision; (e) floor damage caused by, during or in connection with loading or unloading of the Equipment; (f) damage caused by or in connection with tractor/trailer coupling or lifting; or (g) any event occurring outside the continental United States. Lessee acknowledges that, upon an event of loss with respect to any Equipment, lease charges with respect thereto will continue to accrue until Lessee has paid the required DW Deductible. Lessee further acknowledges and agrees that the DW deductible will be payable by Lessee with respect to each incident or occurrence of an event of loss with respect to Equipment. Lessee’s DW will terminate immediately upon any default by Lessee as set forth in Section 20 herein. LESSEE FURTHER AGREES AND ACKNOWLEDGES THAT DW IS NOT INSURANCE COVERAGE, BUT RATHER, IS PART OF LESSOR’S DW PROGRAM. Lessor may terminate Lessee’s DW upon at least 30 days’ written notice. Lessee may also increase the DW charges under this Agreement upon at least 30 days’ notice to Lessee (“DW Increase Notice”), and Lessee will be deemed to have agreed to such increase unless Lessee provides written notice to Lessor of Lessee’s election to terminate its DW within 30 days following Lessee’s receipt of the DW Increase Notice. In the event of any such DW termination, Lessee shall obtain, prior to the DW termination date, physical damage insurance covering the Equipment and naming Lessee a loss payee in accordance with Section 15(b).
17. CREDIT CARD:
Lessee authorizes Lessor to charge Lessee’s credit card, without the signature of Lessee, for any and all outstanding amounts owed by Lessee pursuant to this agreement, including without limitation, lease payments, late charges and costs associated with the processing of Lessee’s delinquent account, even if Lessee has subsequently selected another method of payment. In addition, Lessee will be subject to a $5 processing fee for each instance in which Lessee’s credit card declines for any charges referenced herein. Any credit card dispute initiated by the Lessee will be subject to a $50 service fee.
18. ACCIDENTS:
Within twenty-four hours after occurrence, Lessee shall report all accidents to the local or state police and provide Lessor with a written accident report.
19. TAXES:
Lessee shall pay in addition to lease payments: (a) all Taxes levied against or based upon the value of the Equipment or its use based upon the amount of lease payments to be paid hereunder (“Taxes” includes all taxes, charges and fees except income taxes); and (b) costs and expenses, including attorney’s fees, incurred by Lessor in enforcing any of the terms, provisions, covenants and indemnities provided herein.
20. SECURITY INTEREST:
Lessee hereby grants to Lessor a security interest in all of its right, title and interest in all property located in the Equipment at any particular time. This security interest shall secure the payment and performance of Lessee’s obligations to Lessor under this Agreement.
21. DEFAULT:
A. If any act or thing required to be performed by Lessee pursuant to this Agreement, or any other agreement(s) Lessee has with Lessor, shall not be performed in the manner and at the times required herein, Lessee shall be in default of this Lease. Lessor thereupon shall have the right, without prejudice to any other right or remedy which Lessor may have and without notice or demand, to declare all charges and unpaid lease payments and all lease payments required to complete the minimum term specified in this Agreement, due and payable forthwith and to lock and/or repossess and retain the Equipment free of all rights of Lessee, without any liability and without releasing Lessee from any of Lessee’s covenants, obligations and indemnities hereunder. Lessee does irrevocably appoint Lessor as its agent and does irrevocably grant Lessor power for repossession, including entry upon Lessee’s property or the property of another. If Lessor elects to repossess the Equipment and hold same for Lessee either in Lessor’s possession or in public storage at the expense of the Lessee, Lessee shall pay Lessor an additional storage fee up to $50 per day until Lessee cures the default and empties the contents of the Equipment. Lessee irrevocably grants the right to Lessor to, at Lessor’s option, (i) transfer any property in, on or attached to the repossessed Equipment to a substitute piece of equipment, or (ii) remove any property in, on or attached to the Equipment and Lessor may, without liability for its safekeeping, place such property on the ground at the Equipment site. In the event Lessor exercises its right to repossess the Equipment, Lessee shall indemnify Lessor from any claims, suits, demands or causes of action as a result of any damage to the contents of the repossessed Equipment whether such items are placed in storage or on the ground at the Equipment site. To the fullest extent permitted by law, Lessee shall further indemnify, defend and hold harmless Lessor from any claims, suits, demands, fines, penalties, attorneys’ fees or causes of action by any third party if Lessor repossesses the Equipment. The indemnification obligation of Lessee as set forth above shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable by or for Lessee under workers’ compensation acts, disability benefit acts, or other employee benefit acts. This indemnification provision shall survive the termination of this Agreement. Repossession shall not constitute a termination of Lessee’s obligations under this Agreement. Lessor shall further have the right to lease or sell the Equipment upon such terms and conditions as Lessor shall deem reasonable. Lessee shall be responsible for all costs incurred in the actual act of repossession including attorney’s fees and disbursements. In the event Lessor locks the Equipment pursuant to the terms of this paragraph, Lessee shall be liable for a lock up fee of up to twice the delivery fee.
B. Where Lessor is leasing the Equipment to Lessee for storage of Lessee’s personal property on Lessor’s property or where Lessor permits Lessee to store Lessee’s equipment on Lessor’s property, in the event Lessee defaults in any of the terms or conditions of the Agreement, including but not limited to, payment obligations, Lessor may, in its discretion, terminate this Agreement and proceed with any and all legal remedies available to obtain possession of the Equipment and/or the land upon which it stands and to collect amounts owed by Lessee. Subsequent to any such termination, Lessee shall pay Lessor rental charges in an amount equal to the rate set forth in this Agreement until such time as Lessee removes its personal property and/or Equipment from Lessor’s property. Further, in the event of such default, Lessee shall pay all of Lessor’s costs of collection, including reasonable attorney’s fees, and all costs relating to the removal of Lessee’s personal property from Lessor’s premises.
C. If the Lessor declares this Agreement in default and demands that the Lessee empty the contents of the Equipment and if after 30 days from this notice of default the contents of the Equipment have not been removed, Lessee shall be deemed to have abandoned such contents and Lessor shall have the right, without liability to Lessor, to dispose of the contents without any further notice to the Lessee.
22. LATE/NSF PAYMENT:
Any payment not received by Lessor within thirty (30) days of the invoice date shall be an act of default and shall bear interest at the rate of 18% per annum. Payments not received after sixty (60) days of the invoice date shall also be subject to a $10 late fee. Lessor shall have the option to apply payments received to any of Lessee’s outstanding invoices and/or charges as Lessor elects, without regard to Lessee’s written instructions. All returned checks will be subject to a $50 service fee.
23. MISCELLANEOUS:
A. Lessor reserves the right to place upon the Equipment the name, logo and unit number of Lessor and registered owner and Lessee will not remove said name, logo and unit number.
B. If Lessee shall fail to return the Equipment within three days after the time specified or after demand has been made by Lessor, such failure shall constitute an unauthorized taking, retention, use and operation of the Equipment and Lessor may thereafter consider the Equipment as stolen and may take such steps as Lessor shall be entitled to by law including but not limited to causing a warrant to be issued or any other steps which Lessor shall deem reasonable and necessary to recover the Equipment.. Lessee hereby releases Lessor from and indemnifies Lessor against all claims for damages which Lessee or any other party may sustain as a result of any action taken by Lessor under this paragraph.
C. Lessee waives all right to notice and judicial hearing before Lessor obtains a prejudgment remedy of attachment, garnishment or replevin
D. The failure of Lessor to insist upon the punctual performance of the covenants of Lessee hereunder, Lessor’s failure to exercise any right or remedy available under this Agreement, any failure of Lessor to require payment when due of any sum owing hereunder, or any extension of credit of forbearance on the part of Lessor, shall not constitute a waiver of any subsequent default hereunder. All demands for payment and performance and all notices of non-payment under this agreement are hereby waived by Lessee.
E. For purposes of this Agreement, any notices and demands required to be given shall be given to the parties in writing and by certified mail, return receipt requested, at the respective addresses set forth in this Agreement or to such other address as Lessor or Lessee may hereafter substitute by written notice.
F. If any provisions of this Agreement are in conflict with any applicable statute, regulation or rule of law, then such provisions shall be deemed null and void to the extent that they may conflict therewith, but without invalidating the remaining provisions hereof.
G. This Agreement shall be governed by and constructed in accordance with the laws of the State of Connecticut (CT). To the fullest extent permitted by applicable law, Lessee hereby consents to the jurisdiction of all federal and state courts in the State of CT with respect to all disputes and controversies arising in connection with this Agreement, and hereby consents that all service of process upon it in connection therewith may be made by registered mail, return receipt requested, directed to it at the address designated on the face hereof and service so made shall be deemed to have been completed five (5) days after the same shall have been deposited in the U.S. mail.
H. Each party agrees that the electronic signature, whether digital or encrypted, of Lessee included in the Agreement is intended to authenticate this writing and to have the same force and effect as a manual signature. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
I. In the event Lessee requests Lessor to utilize an online portal to deliver invoices for any amounts owed pursuant to the terms herein, Lessee shall be subject to a fee of no less than $5 for each invoice submitted in such manner.
