TERMS AND CONDITIONS
For the purpose of this Rental Agreement, “Rental Center” shall mean Simon Equipment Co., Inc., its owners, officers, directors, shareholders, and employees, and “Customer” shall mean Customer, its agents and/or employees.
In consideration of hiring of the equipment (herein “the rental equipment or equipment”) described on the front of this Rental Agreement it is agreed as follows:
1. INDEMNITY/HOLD HARMLESS. CUSTOMER WILL TAKE ALL NECESSARY PRECAUTIONS REGARDING THE EQUIPMENT RENTED, AND PROTECT ALL PERSONS AND PROPERTY FROM INJURY OR DAMAGE. CUSTOMER AGREES TO HOLD HARMLESS RENTAL CENTER FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, JUDGMENTS, ATTORNEYS’ FEES AND COSTS, OF EVERY KIND AND NATURE, INCLUDING, BUT NOT LIMITED TO, INJURIES OR DEATH TO PERSONS AND DAMAGE TO PROPERTY, ARISING OUT OF THE USE, MAINTENANCE, INSTRUCTION, OPERATION, POSSESSION, OWNERSHIP OR RENTAL OF THE EQUIPMENT RENTED, HOWEVER CAUSED, EXCEPT CLAIMS OR LITIGATION ARISING THROUGH THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF RENTAL CENTER.
2. ASSUMPTION OF RISK/RELEASE-DISCHARGE OF LIABILITY. CUSTOMER IS FULLY AWARE AND ACKNOWLEDGES THERE IS A RISK OF INJURY OR DAMAGE ARISING OUT OF THE USE OR OPERATION OF THE EQUIPMENT RENTED HEREUNDER AND HEREBY ELECTS TO VOLUNTARILY ENTER INTO THIS RENTAL AGREEMENT AND ASSUME ALL OF THE ABOVE RISKS OF INJURY OR DAMAGE. CUSTOMER AGREES TO RELEASE AND DISCHARGE RENTAL CENTER FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FROM SUCH INJURY OR DAMAGE ARISING OUT OF THE USE OR OPERATION OF THE EQUIPMENT; AND CUSTOMER FURTHER AGREES TO WAIVE, RELEASE AND DISCHARGE ANY AND ALL CLAIMS FOR INJURY OR DAMAGE AGAINST RENTAL CENTER WHICH CUSTOMER OTHERWISE MAY BE ENTITLED TO ASSERT.
3. OPERATORS. No operators are furnished, directly or indirectly with our equipment.
4. RESERVATION DEPOSIT. All equipment reservations shall be accompanied by a Reservation Deposit in an amount equal to the greater of the one-day rental fee for the equipment reserved or twenty percent (20%) of the total anticipated rental fee for the reserved equipment. In lieu of a cancellation fee, this Reservation Deposit shall be non-refundable under any circumstances.
5. RECEIPT/INSPECTION OF EQUIPMENT. Customer hires the equipment on an “as is” basis. Customer acknowledges that he has, or will, personally inspect the equipment prior to its use and finds it suitable for Customer’s needs. Customer acknowledges receipt of all items listed in this Rental Agreement and that the equipment is in good working order and repair and that Customer understands (without further instructions) its proper operation and use.
6. POSSESSION/TITLE. Customers right to possession of the equipment begins upon equipment leaving Rental Center and terminates on the Agreed Return Date indicated on the front of this Rental Agreement. Retention of possession after this date constitutes a material breach of this Rental Agreement.
Time is of the essence of this Rental Agreement. Any extension of this Rental Agreement must be agreed upon in writing. Title to the equipment is and shall remain in Rental Center. If the equipment are not returned and/or levied upon for any reason whatsoever, Rental Center may retake said equipment without further notice or legal process and use whatever force is reasonable necessary to do so. Customer hereby process agrees to indemnify, defend and hold Rental Center harmless from any and all claims and costs arising from such retaking and/or levy. If equipment are levied upon, Customer shall notify Rental Center immediately.
7. RENTAL PERIOD/RATE/PAYMENT. Rental Period is for a maximum of twenty-four (24) hours unless a longer term is specified in the Rental Agreement Agreed Return Date on the front of this Rental Agreement. Rental rates are based upon single shift usage (eight hours per day, five days per week). If Customer makes greater use of the equipment, it is agreed that the additional usage will be charged. Rental charges begin immediately upon equipment leaving Rental Center. Rental charges end upon return of the equipment to Rental Center in an acceptable condition. No allowance will be made for Saturdays, Sundays, Holidays, or time in transit, nor for any period of time the equipment may not be in actual use while in Customer’s possession. If the equipment is returned prior to the end of the minimum rental period, the rental due shall be for the entire minimum rental period. Rental Center may terminate rental at anytime and retake the equipment without further notice in case of violation by Customer of any terms or conditions of this Rental Agreement. Upon Rental Center’s request therefore, Customer agrees to provide Rental Center with Customer’s credit card information and hereby authorizes Rental Center to charge on Customer’s credit card any and all charges, fees and expenses payable by Customer to Rental Center under this Agreement. Customer agrees to pay any collection costs and attorney fees incurred in collection of this account or any dispute arising out of this Rental Agreement. Customer agrees to pay a monthly service charge on all unpaid balances. Customer agrees to pay Rental Center a fee for environmental compliance.
Rental Center reserves the right to require Customer to provide fingerprint identification in connection with the rental of equipment, at Rental Center’s sole discretion.
9. ENVIRONMENTAL FEE. Customer agrees to pay an Environmental Fee in an amount equal to 4 % of the equipment rental charge hereunder which is designed to recover the rental Center’s direct and indirect expenses for the handling , managing and disposing of waste products, hazardous materials, and related administrative costs. This is not a government mandated charge.
10. ORDINARY WEAR AND TEAR. Customer shall be responsible for all damage not caused from ordinary wear and tear. “Ordinary wear and tear” shall mean only the normal deterioration of the equipment caused by ordinary, reasonable and proper use of the equipment. Damage which is not “ordinary wear and tear” includes, but is not limited to: damage due to overturning, overloading or exceeding rated capacities; breakage; improper use; abuse; lack of cleaning; dirtying of equipment by paint, mud, plaster, concrete, rosin or any other material. A cleaning charge will be made on equipment returned unclean.
11. COMPLIANCE WITH LAWS/USE OF EQUIPMENT. Customer agrees not to use or allow anyone to use the equipment for any illegal purpose or in any illegal manner or in an unsafe manner. Customer agrees at his sole cost and expense to comply with all municipal, county, state and federal laws, ordinances and regulations which may apply to the use of the equipment during the rental period. Customer further agrees to pay all licenses, fines, fees, permits, or taxes arising from his use of the equipment, including any subsequently determined to be due.
Customer shall not allow any person who is not qualified and who has not received and understands safety and operating instructions and who does not utilize all safety equipment required, to operate the equipment or use the equipment. Customer shall not allow any person to use or operate the equipment when it is in need of repair or when it is in an unsafe condition or situation; modify, misuse, harm or abuse the equipment; permit any repairs to the equipment without Rental Center’s prior written permission; or allow a lien to be placed upon the equipment.
Customer agrees to check filters, oil, fluid levels, air pressure, clean and visually inspect the equipment at least daily and to immediately discontinue use and notify Rental Center when equipment is found to need repair or maintenance or is not properly functioning. Customer acknowledges that Rental Center has no responsibility to inspect the equipment while it is in Customer’s possession.
12. RETURN OF EQUIPMENT. Customer agrees to return to Rental Center the equipment in as good condition as when received, ordinary wear and tear excepted by Rental Agreement Agreed Return Date. Customer shall be liable for all damages to or loss of the equipment and liability incurred prior to equipment’s return to Rental Center. Customer shall be responsible for all costs incurred by Rental Center recovering and returning damaged equipment to Rental Center’s premises. If equipment is to be “picked-up” by Rental Center, Customer agrees to provide a secure storage location and Customer accepts all risk including damage to and liability relative to equipment for a reasonable period of time until the equipment is picked-up by Rental Center.
13. PAYMENT. Unless other written payment arrangements are made at the time the equipment is rented, Customer hereby authorizes Rental Center to charge on Customer’s credit card any and all charges, fees and expenses payable by Customer to Rental Center under this Agreement.
If, after payment for the rental, Customer elects to change the method of payment (e.g., payment is first tendered by credit card and Customer then elects to cancel the credit card payment and pay by cash or check), Customer agrees to pay Rental Center a sum equal to Ten Percent (10%) of the payment amount to cover Rental Center’s administrative expenses and resulting merchant fees, if any.
14. CREDIT CARD CHALLENGES. In the event Customer challenges a credit card charge by Rental Center which is later determined by the credit card company to be proper, Customer agrees to pay Rental Center a sum equal to the greater of $25.00 or Ten Percent (10%) of the disputed payment amount to cover Rental Center’s administrative expenses and resulting merchant fees, if any.
15. DISCLAIMER OF WARRANTIES. Rental Center makes no warranty of merchantability of fitness for any particular use or purpose, either express or implied. There is no warranty or representation that the equipment is fit for Customer’s particular intended use, or that it is free of latent defects. Rental Center shall not be responsible to Customer or any third party for any loss, damage or injury resulting from, or in any way attributable to the operation of, use of, or any failure of the equipment. Rental Center shall not be responsible for any defect or failure unknown to the Rental Center. Customer’s sole remedy for any failure of or defect in the equipment shall be termination of the rental charges at the time of failure provided that Customer notifies Rental Center immediately of such failure and returns the equipment to Rental Center within twenty-four (24) hours of such failure.
16. PURCHASE ORDERS. The use of Customer’s purchase order number on this Rental Agreement is for Customer’s convenience and identification only. This Rental Agreement supercedes any purchase order or other Customer provisions or forms, whether sent or received prior to or subsequent to this Rental Agreement.
17. SUBLETTING/LOCATION OF EQUIPMENT. Customer agrees not to sublet, loan or assign the equipment. Customer shall not move the equipment from the address at which Customer represented it was to be used.
18. DEFAULT. Should Customer in any way fail to observe or comply with any provision of this Rental Agreement, Rental Center may, at its sole option, terminate this Rental Agreement, retake the equipment, declare any charges due and payable and initiate legal process to recover monies owed, and/or, pursue and other legal rights and remedies available to Rental Center. Exercise of any remedy available to Rental Center shall not constitute an election of remedies or a waiver of any additional remedies to which Rental Center may be entitled.
19. RETAKING OF EQUIPMENT. If for any reason it becomes necessary for Rental Center to retake the equipment, Customer authorizes Rental Center to retake the equipment without further notice or further legal process and agrees that Rental Center shall not be liable for any claims for damage or trespass arising out of the removal of the equipment.
20. LEGAL FEES. In the event an attorney is retained to enforce any provision of this Rental Agreement, the prevailing party in the dispute shall be entitled to recover reasonable attorney’s fees and court costs in such action, or proceeding, in an amount to be determined by the court.
21. INTEREST. Any amount payable hereunder which is not paid when due shall bear interest at Ten Percent (18 %) per annum or the maximum rate permitted by law, whichever is less.
22. EQUIPMENT PROTECTION PLAN. Equipment Protection Plan is Not Insurance. By Customers accepting the Equipment Protection Plan on the front of this Rental Agreement, Customer agrees to pay a charge equal to 12 % of the equipment rental charge hereunder and with immediate notification in the event of an accident and the prompt submission of applicable police reports, Rental Center and Customer agree that Rental Center will waive certain claims against Customer for direct physical damage to the equipment while in normal and careful use by the Customer. If Customer has insurance covering such loss or damage, the Equipment Protection Plan becomes secondary and Customer shall exercise all rights available to him under said insurance and take all action necessary to process said claim. Customer further agrees to assign said claim and any and all proceeds from such insurance to Rental Center. Upon request of Rental Center, Customer shall fully cooperate with Rental Center and furnish the name of his insurance agent, insurance company, and complete information concerning insurance coverage carried. Notwithstanding the forgoing the following conditions are not covered under the Equipment Protection Plan:
A. Any item of equipment or part thereof which is not returned for whatever reason, including theft;
B. Damage resulting from improper use, failure to secure during transportation, overloading or exceeding the rated capacity of the equipment;
C. Damage to motors of other electrical appliances or devices cause by artificial current;
D. Damage to tires, tubes and wheels cause by blowout, bruises, cuts and other causes inherent in the use of the equipment.
E. Damage as a result of vandalism or malicious mischief or intentional abuse;
F. Damage resulting from misuse, abuse, failure to maintain, cleanliness, proper oil, fuel, hydraulic, coolant or pressure levels, lack of lubrication or other normal servicing of equipment;
G. All damage resulting from overturning;
H. All damage resulting from use of the equipment in violation of any provision of this Rental Agreement, violation of any law, ordinance or regulation.
23. CUSTOMER INSURANCE COVERAGE. Customer agrees to maintain and carry, at its sole expense, adequate liability physical damage, public liability, property damage and casualty insurance, including all risks of loss or damage covered by the standard extended coverage endorsement, to cover any damage or liability arising from the handling, transportation, maintenance, operation, possession or use of the Equipment. When requested, Customer agrees to supply Rental Center with proof of such insurance in the form of a Certificate of Insurance clearly setting forth the coverage for the Equipment; such insurance and evidence thereof to be in a form and in amounts satisfactory to Rental Center, in its sole discretion.
24. NOTICE OF NON-WAIVER/SEVERABILITY. Any failure of Rental Center to insist upon strict performance by Customer as regards any provision of this Rental Center shall not be interpreted as a waiver of Rental Center’s right to demand strict compliance with all other provisions of this Rental Agreement against Customer or any other person. The provisions of this Rental Agreement shall be severable so that the unenforceability invalidity or waiver of any provision shall not effect any other provision.
25. MISCELLANEOUS. This Rental Agreement represents the entire agreement between Customer and Rental Center with respect to the subject matter hereof. There are no oral or other representations or agreements not included herein. This Rental Agreement may not be changed modified or altered, except in writing signed by all of the parties hereto. This Rental Agreement may be executed or delivered by facsimile.
26. HAZARDOUS WASTE DISCLOSURE. THIS EQUIPMENT CONTAINS OR PRODUCES ONE OR MORE CHEMICALS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER, BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM.