SCHWARZE INDUSTRIES LLC’S RENTAL TERMS AND CONDITIONS

 

            All Rentals between Schwarze Industries LLC (“Lessor”) and the party identified as Lessee in a validly executed Rental Agreement are made on the terms and conditions contained in the Rental Agreement and these Rental Terms and Conditions. The Rental Agreement and the Rental Terms and Conditions are collectively the “Agreement” between the Lessor and Lessee. Lessor and Lessee are referred to collectively herein as the “Parties” and each is a “Party” to this Agreement.

 

  1. PURPOSE AND SCOPE: This Agreement contemplates the continuous rental of the Equipment (as defined in the applicable Rental Agreement) at the agreed Rental Rate as set forth in the applicable Rental Agreement executed from time to time between the Parties until one of the following occurs: (i) the Equipment is duly returned by Lessee to Lessor’s location where Lessee took possession of the Equipment and all other obligations with respect to such Equipment have been satisfied, or (ii) this Agreement is terminated pursuant to these terms and conditions. These terms and conditions are hereby made part of and incorporated into each applicable Rental Agreement executed by the Parties and each Rental Agreement shall constitute a separate and enforceable lease incorporating all of these terms and conditions. In the event of a conflict between these terms and conditions and a Rental Agreement, these terms and conditions shall prevail, unless such Rental Agreement expressly references the specific provision in these terms and conditions to be modified by the Rental Agreement.
  2. AGREEMENT: Lessor hereby agrees to rent to Lessee, and Lessee hereby agrees to rent from Lessor, from time to time, the Equipment as described in each applicable Rental Agreement executed by Lessee. As part of the consideration hereof, Lessee hereby agrees to perform these terms and conditions with respect to all of the Equipment covered by a Rental Agreement between the Parties and to make the payments set forth in each Rental Agreement to Lessor for the use and control of the Equipment.
  3. OBLIGATION: Time, and each of the terms and conditions hereof, are expressly declared to be of the essence of this Agreement. The acceptance of any payment after the same is due, or the failure of the Lessor in any one or more instances to pursue any of the remedies hereunder upon default by the Lessee in performance of any of Lessee’s obligations, shall not constitute a waiver of this or any other provision of this Agreement and shall not prevent the Lessor from exercising any of the remedies hereunder on account of any past or future defaults either in the making of payments provided for hereunder or in the performance of the various obligations hereof by the Lessee. If, for any reason, payments are not made as herein specified, said payments shall bear interest at the highest legal rate per annum from the date due until paid. However, the payment of this interest shall not waive the Lessor’s right as hereinafter stipulated, to terminate and forfeit this Agreement. Lessor also reserves the right to charge a service fee for any payment transaction where a credit card is utilized.  Payments, unless otherwise agreed to in advance and in writing, will be due upon Lessee’s receipt of a monthly invoice from Lessor as set forth in the applicable Rental Agreement. By leaving a credit card deposit with Lessor, Lessee authorizes Lessor to charge the appropriate amount in Lessee’s absence if the Equipment is not returned on the due date, up to the Equipment Value (as set forth in the applicable Rental Agreement) with rental costs added.
  4. INSURANCE: Prior to Lessee taking possession of Equipment, Lessee shall provide to Lessor a certificate of insurance evidencing the required insurance coverage.
  5. Lessee shall, during the term of this Agreement, at its sole cost and expense, maintain commercial general liability (CGL) insurance with a limit of not less than $1,000,000 each occurrence with a $2,000,000 general aggregate limit. The CGL general aggregate limit will apply separately to each project site or location occupied by Lessee. CGL insurance shall cover liability including, but not limited to, liability arising from premises, operations, independent contractors, products-completed operations, personal injury, advertising injury, and contractual liability. Lessor shall be included as an additional insured under the CGL policy using ISO Additional Insured Endorsement CG20101185 (Form B) or an equivalent endorsement. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs maintained by Lessor. Lessee and its insurer waive all rights against Lessor, its officers, directors, and employee for recovery of damages to the extent these damages are covered by the CGL insurance pursuant to this Agreement.
  6. Lessee, during the term of this Agreement, at its sole cost and expense, shall maintain business auto liability insurance with a limit of not less than $1,000,000 each accident. Such business auto liability shall cover all risks of loss or damage to persons or property arising out of the ownership, maintenance, use, or operation of any auto or vehicle during the term of this Agreement, regardless of fault. Lessor shall be named as an additional insured under Lessee’s business auto liability insurance policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs maintained by Lessor. Lessee and its insurer waive all rights against Lessor, its officers, directors, and employees for recovery of damages to the extent these damages are covered by the business auto liability insurance pursuant to this Agreement.
  7. Lessee shall, during the term of this Agreement, at its sole cost and expense, maintain business auto physical damage insurance to include collision and other than collision coverage parts on the vehicle(s) or truck(s) specified in this Agreement. The agreed amount of insurance specified in the business auto physical damage insurance shall not be less than the actual cash value of the vehicle(s) or truck(s) as specified in the applicable Rental Agreement. The applicable deductibles under the business auto physical damage insurance shall not exceed $1,000 per occurrence on any one coverage part. Lessee shall be responsible for payment of the deductible portion of any claim. Lessor shall be named as loss payee with respect to any vehicle(s) or truck(s) covered by this insurance.
  8. Lessee shall, during the term of this Agreement, at its sole cost and expense, maintain workers compensation and employers liability insurance. The employers liability limits shall not be less than $500,000 each accident for bodily injury by accident and not less than $500,000 each employee for bodily injury by disease. Lessee and its insurer shall waive all rights against Lessor, its officers, directors, and employees for recovery of damages to the extent these damages are covered by workers compensation and employers liability insurance pursuant to this Agreement.
  9. Lessee shall, during the term of this Agreement, at its sole cost and expense, maintain umbrella liability insurance with a limit of not less than $2,000,000 per occurrence with a $2,000,000 policy aggregate. Such umbrella liability insurance shall be in excess of the commercial general liability insurance, business auto liability insurance, and employers liability insurance as specified in this Agreement. Lessor shall be named as an additional insured under this umbrella liability policy. This insurance will apply as primary insurance with respect to any other insurance or self-insurance programs maintained by Lessee. Lessee and its insurer waive all rights against Lessor, its officers, directors, and employees for recovery of damages to the extent these damages are covered by the umbrella liability insurance pursuant to this Agreement.
  10. All policies of insurance shall be written through insurance companies with an A.M. Best rating of A-VII or better. Prior to the release of the Equipment by Lessor to Lessee, Lessee shall furnish to Lessor a certificate(s) of insurance, executed by a duly authorized representative of the insurer, showing compliance with insurance requirements set forth in this Agreement. All certificates shall provide for thirty (30) days written notice to Lessor prior to cancellation or material change of any insurance referred to herein. Lessor shall have the right, but not the obligation, not to release any Equipment to Lessee until such certificate(s) is received and approved by Lessor. Failure to maintain the required insurance shall constitute a default by Lessee on this Agreement.
  11. The insurance requirements set out in this Agreement are independent from all other obligations of Lessee under this Agreement and apply whether or not required by any other provision of this Agreement. If Lessor approves the subletting of the Equipment by Lessee, the Sublessee shall be required to furnish the same insurance coverage as required of Lessee and the Sublessee shall furnish to Lessor evidence that such insurance coverage is in effect.
  12. TAXES, FEES, FREIGHT: Lessee shall pay all charges and taxes (local, state, and federal, including but not limited to all costs of permits and DOT charges and fees) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession, or use of the Equipment, excluding however, all taxes on or measured by Lessor’s rental income. If Lessee fails to pay said charges or taxes, Lessor will have the right, but will not be obligated, to pay such charges or taxes. In that event, Lessor will notify Lessee of such payment and Lessee will repay to Lessor the cost thereof within 15 days after such notice is mailed to Lessee. The Lessee shall be responsible for all fuel required and consumed by the Equipment while in possession of the Lessee. All freight and switching charges, demurrage, transportation charges, loading and unloading charges, both ways, are to be paid by Lessee. Return transportation charges are to be prepaid by Lessee. Lessee further acknowledges that, if third party transport is required to obtain Equipment from or return Equipment to Lessor, regardless of which party makes the transport arrangements, Lessee retains responsibility of the Equipment until returned and accepted by Lessor.
  13. SERVICE, MAINTENANCE, REPAIRS, DAMAGES: Lessee agrees during the period covered by this Agreement to use said Equipment in accordance with all applicable laws and regulations and all manufacturers’ operating instructions and recommendations to make, at Lessee’s expense, any and all repairs thereon which may be necessary to keep said Equipment in as good of condition as it is now, reasonable wear and tear thereof excepted, and to pay all operating and maintenance expense, including but not limited to oil changes, seal replacements, cleaning or decontamination expenses, etc., until all the above described Equipment is returned and actually received by Lessor. If Lessee refuses to perform recommended preventative maintenance or refuses to provide evidence of such maintenance being performed, Lessor may, at its sole discretion, invoice the Lessee for the deferred preventative maintenance and demand the return of the Equipment. If Lessee refuses to perform recommended preventative maintenance and refuses to provide evidence of such maintenance being performed, and if Lessee refuses Lessor’s request to return Equipment, Lessor may, but is not required to, double the rental rate of Equipment under rent in any applicable Rental Agreement.  Upon the termination of this Agreement, Lessee agrees to return the said Equipment to Lessor in as good as condition as received, reasonable wear and tear excepted. Lessee agrees to pay the cost of any and all repairs and damages which result from the lack of adequate maintenance or are beyond normal wear and tear on the Equipment while it is in the possession of the Lessee. Lessee further agrees to use said Equipment only for the purposes recommended by the manufacturer thereof and further not to load same beyond the capacity recommended by the manufacturer. Lessee shall not permit the Equipment to be driven or operated by personnel who are not properly licensed and qualified to drive and operate the Equipment.
  14. TITLE, LIENS: Title to the said Equipment shall at all time vests in Lessor unless transferred to Lessee through sale. Lessee agrees not to assign or transfer this Agreement or any interest herein, or sublet said Equipment, without the written consent of Lessor, which Lessor shall not be required to give, nor shall Lessee mortgage the Equipment or permit any liens or claims to be filed against the Equipment while in the Lessee’s possession.
  15. TERM AND TERMINATION: This Agreement shall continue in force and effect and Lessee shall be liable to Lessor for rental of the Equipment at the Rental Rate agreed upon in each applicable Rental Agreement, until the termination of the then current Term and the Equipment is returned by Lessee to Lessor’s location where Lessee took possession of the Equipment at the beginning of the Initial Rental Term of this Agreement. Upon termination of this Agreement, Lessee shall immediately return the Equipment to Lessor. If Lessee fails to immediately return the Equipment, Lessor may enter the premises where the Equipment is located and immediately retake possession of the Equipment, without liability on the part of Lessor or its agent for such entry. All Equipment retained after termination of this Agreement for any reason will be considered overtime and Lessee will continue to owe Lessor the Rental Rate until the Equipment is returned to Lessor and all fees are paid in full. Any amount paid by Lessee during the Initial Rental Term, the Renewal Terms (if applicable), or during any over time period will be considered one hundred percent (100%) rental fees and Lessee shall still be obligated for all maintenance and repair costs related to the Equipment.
  16. LOSS OR DESTRUCTION: If the Equipment shall become lost, stolen, destroyed, or damaged beyond repair for any reason, or in the event of condemnation, confiscation, seizure, or requisition of title to or use of the Equipment, Lessee shall promptly pay to Lessor the Equipment Value as set forth in the applicable Rental Agreement. Upon payment by Lessee, Lessor will transfer to Lessee the title or MSO to the Equipment.
  17. WARRANTIES: Lessee has received a description of the Equipment from Lessor and has inspected or will inspect the Equipment and notify the Lessor of any issues with the Equipment prior to the execution of each applicable Rental Agreement. Lessee accepts the Equipment in an “as is” condition and will promptly sign documentation reflecting the same upon receipt of the Equipment. Such documentation will evidence the “as-is” condition of the Equipment and Lessee’s execution of the documentation reflects Lessee’s knowledge and understanding of the “as is” condition of the Equipment. If Lessee fails to or refuses to execute the documentation, Lessee accepts by default all documentation held by Lessor as it relates to the condition of the Equipment. Lessor warrants only that the Equipment conforms to the Equipment description provided to Lessee and is in normal working condition at the time of delivery. Lessor makes no other representations or warranties, express or implied, with respect to the Equipment. All implied warranties (including, without limitation, merchantability, and fitness for particular purpose) are specifically excluded and disclaimed. Lessor’s liability for any and all losses and damages to Lessee resulting from defects in the Equipment shall in no event exceed the cost of repair, or if repair is not practicable, replacement, F.O.B. Lessor’s location, of the Equipment. Any and all warranty claims or repairs for the Equipment during the term of this Agreement must be submitted to the Lessor in writing and reviewed by Lessor prior to any contracting for such repairs. If Lessee commits to warranty repairs without prior consent from Lessor, then Lessor, at its sole discretion, may elect to adjust any reimbursement amounts to be made to the Lessee based on internal cost estimates. Lessor shall not be liable for any special, indirect, incidental, or consequential damages of any nature arising out of or in connection with the Equipment.
  18. LESSEE’S REPRESENTATIONS AND WARRANTIES: Lessee represents and warrants as follows: (i) Lessee is a LLC, Corporation, Partnership, or Sole Proprietor duly organized, validly existing and in good standing under the laws of the state it is formed in and has full power and authority and all necessary licenses and permits to carry on its business as presently conducted, to own or hold under rental its properties and to enter into this Agreement and to perform its obligations hereunder; (ii) the execution and delivery by Lessee of this Agreement and the performance by Lessee of the obligations hereunder have been duly authorized by a necessary action on the part of Lessee; and (iii) this Agreement, when executed by Lessee, constitutes the legal, valid and binding agreement of Lessee enforceable against Lessee in accordance with its terms, except as limited by any bankruptcy, insolvency, reorganization or other similar laws of general application affecting the enforcement Lessor’s rights.
  19. DATA COLLECTION: Lessee hereby acknowledges and agrees that the Equipment may be equipped with GPS (Global Positioning System) location service devices or similar devices (the “Devices”) for the purposes of locating and monitoring the Equipment. Lessee may not remove or alter the Devices for any purposes without Lessor’s prior written consent. Lessee further acknowledges and agrees that Lessor may from time to time collect the GPS location data from Devices on the Equipment for its business purposes as Lessor. Lessee assumes liability for and shall defend, indemnify and hold the Lessor and any other Indemnified Person (defined herein) harmless from and against all Claims (defined herein) that may arise as a result of Lessor’s collection of the GPS location data of the Equipment in accordance with Section 16 of this Agreement.
  20. EVENTS OF DEFAULT: An Event of Default shall occur if: (i) Lessee fails to pay any rental payment or other amount hereunder when due; or (ii) Lessee fails to perform or observe any other covenant, condition or agreement to be performed or observed by it under this Agreement or breaches any provision contained herein or in any other document furnished to Lessor in connection herewith; or (iii) Lessee makes any representation or warranty herein or in any document furnished by Lessee in connection herewith, which shall have been materially false or inaccurate when made or at the time to which such representation or warranty relates; (iv) Lessee becomes insolvent, fails generally to pay its debts as they become due, or ceases to conduct business in the ordinary course; or (v) Lessee becomes the subject of proceedings under the United States Bankruptcy Code or state insolvency proceedings, an involuntary petition is filed against Lessee under the United States Bankruptcy Code, an order for relief under the United States Bankruptcy Code is entered against Lessee, Lessee makes an assignment for the benefit of creditors, or a receiver, trustee, custodian, or other similar official is appointed for, or takes possession of any material part of the property of Lessee (each a “Bankruptcy Default”). Any Event of Default shall be deemed material and a substantial impairment of Lessor’s interests for the purposes of this Agreement, the Uniform Commercial Code, and any other applicable law.
  21. REMEDIES: Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, in its discretion, do any one or more of the following:
  22. Terminate this Agreement, which termination shall be effective immediately upon written notice of termination to Lessee, provided, however, that in the case of a Bankruptcy Default, termination shall be effective immediately and automatically upon the occurrence of such Bankruptcy Default without any notice from or action by Lessor.
  23. Recover any unpaid rental payments and other amounts which are due and owing hereunder.
  24. Require that Lessee return the Equipment in accordance with this Agreement.
  25. Enter the premises where such Equipment is located and take immediate possession of and remove the same, all without liability on the part of Lessor or its agents for such entry.
  26. Exercise any other right or remedy which may be available to it under the Uniform Commercial Code or other applicable law including the right to recover damages for the breach hereof.

In addition, Lessee shall be liable for, and reimburse Lessor for, all reasonable attorneys’ fees and all reasonable costs and expenses incurred by Lessor as a result of an Event of Default or the exercise of any of Lessor’s remedies, including, without limitation, recovering possession of the Equipment, and placing any Equipment in the condition required by the Rental Agreement(s). No remedy referred to in this section is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. No express or implied waiver by Lessor of any Event of Default shall constitute a waiver of any other Event of Default, or a waiver of any of Lessor’s rights.

  1. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the successors and assigns of both parties; provided, however, Lessee may not, without Lessor’s prior written consent, (i) assign this Agreement, whether by operation of law or otherwise, or (ii) assign or grant a security interest in, or otherwise transfer all or any part of its rights, title, or interest in or to this Agreement.
  2. INDEMNITY: Lessee assumes liability for and shall defend, indemnify and hold each Indemnified Person (defined below) harmless from and against all Claims (defined below), directly or indirectly relating to or arising out of the use, rental, operation, possession, control, storage, return, or condition of the Equipment, the falsity of any representation or warranty of Lessee, or Lessee’s failure to comply with the terms of this Agreement. The foregoing indemnity shall cover, without limitation, any Claim for negligence or strict or absolute liability in tort. “Claim” means all liabilities, losses, damages, actions, causes of action, suits, demands, fines, penalties, costs, expenses, and claims of any kind and nature (including, without limitation, reasonable attorneys’ fees). “Indemnified Person” means Lessor, its successors, assigns agents, officers, directors, shareholders, members, partners, managers, servants, agents, or employees. Such indemnities shall continue in full force and effect notwithstanding the expiration or termination of this Agreement. Upon Lessor’s written demand, Lessee shall assume and diligently conduct, at its sole cost and expense, the entire defense of any Indemnified Person against any indemnified Claim described in this Section 16. Lessee shall not settle or compromise any Claim against or involving an Indemnified Person without first obtaining such Indemnified Person’s written consent thereto, which consent shall not be unreasonably withheld. Lessee shall give each Indemnified Person prompt notice of any occurrence, event, or condition in connection with which such Indemnified Person may be entitled to indemnification hereunder.
  3. LEGAL FEES: In the event of any legal action with respect to this Agreement, Lessor shall be entitled to recover from Lessee reasonable attorney’s fees, including attorney’s fees incurred at the trial level, including action in bankruptcy court, on appeal or review, or incurred without action, suits, or proceedings, together with costs and expenses incurred in pursuit thereof.
  4. SOLE AGREEMENTS: It is agreed that this writing and all Rental Agreements signed by the Parties as part of this agreement, cover all the agreements between the Parties hereto, and no other agreements unless specifically provided for herein, shall be binding on either Party. This Agreement may only be modified or extended by the signed, written agreement of the parties.
  5. SIGNATURES: The Parties agree that this Agreement shall be effective when a signed copy of the applicable Rental Agreement is received by Lessor. The parties agree that this Agreement may be executed by the manual or electronic signature of a Party. Each Party agrees that the electronic signatures of the Parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.
  6. IDENTITY: The word Lessor and Lessee as used herein shall be construed to include singular and plural, masculine, and feminine, individual, and corporate parties, and shall include all employees, agents, successors and assignees of Lessor and all assignees and sub lessees of Lessee with the consent of Lessor as provided above.
  7. MISCELLANEOUS: Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof; and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction; provided, however, that to the extent that the provisions of any such applicable law can be waived, they are waived by Lessee. The captions set forth herein are for convenience only and shall not define or limit any of the terms hereof. This Agreement reflects the entire understanding of the parties with respect to the subject matter herein contained and supersedes any prior agreements (whether written or oral) between the parties. The terms of this Agreement may not be waived, amended, or supplemented except in a writing signed by all parties hereto.
  8. TRUE LEASE: Both Lessor and Lessee affirm that this transaction is intended to be, and is, a true lease. However, in the event that said lease should be construed as a transaction intended for security, Lessee hereby grants to Lessor a security interest in the Equipment, including the proceeds and products thereof, and in all accounts and general intangibles arising from the sale, lease or other disposition of any of the foregoing. Lessee authorizes Lessor to file precautionary Uniform Commercial Code financing statements and other similar filings and recordings with respect to the Equipment.

THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ALABAMA, WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTES HEREUNDER SHALL BE RESOLVED IN THE COURTS OF MADISON COUNTY, ALABAMA. THIS LESSOR COOPERATES WITH ALL FEDERAL, STATE AND LOCAL LAW ENFORCEMENT OFFICIALS NATIONWIDE TO PROVIDE THE IDENTITY OF CUSTOMERS WHO OPERATE ANY RENTAL CMVS PURSUANT TO THIS AGREEMENT.