These are the Terms and Conditions of the Rental Agreement. The “Rental Agreement” is the agreement, written or otherwise, including but not limited to the purchase order, invoice and all other documents by and between ESR and Leasee. If there is any contradictions or inconsistencies between the purchase orders, invoice or any other document(s) related to the Rental Agreement and these Terms and Conditions, then these Terms and Conditions shall prevail.
For the purpose of this Rental Agreement, "ESR" shall mean Exclusive Sales and Rentals, its owners, officers, directors, shareholders, and employees, and "Leasee" 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. LEASEE WILL TAKE ALL NECESSARY PRECAUTIONS REGARDING THE EQUIPMENT RENTED, AND PROTECT ALL PERSONS AND PROPERTY FROM INJURY OR DAMAGE. LEASEE AGREES TO HOLD HARMLESS ESR 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, IINSTRUCTION, OPERATION, POSSESSION, OWNERSHIP OR RENTAL OF THE EQUIPMENT RENTED, HOWEVER CAUSED, EXCEPT CLAIMS OR LITIGATION ARISING THROUGH THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF ESR.
2. ASSUMPTION OF RISK/RELEASE-DISCHARGE OF LIABILITY. LEASEE 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. LEASEE AGREES TO RELEASE AND DISCHARGE ESR FROM ANY AND ALL RESPONSIBILITY OR LIABILITY FROM SUCH INJURY OR DAMAGE ARISING OUT OF THE USE OR OPERATION OF THE EQUIPMENT; AND LEASEE FURTHER AGREES TO WAIVE, RELEASE AND DISCHARGE ANY AND ALL CLAIMS FOR INJURY OR DAMAGE AGAINST ESR WHICH LEASEE OTHERWISE MAY BE ENTITLED TO ASSERT.
3. OPERATORS. No operators are furnished, directly or indirectly with our equipment.
4. RECEIPT/INSPECTION OF EQUIPMENT. Leasee hires the equipment on an “as is" basis. Leasee acknowledges that he has, or will, personally inspect the equipment prior to its use and finds it suitable for Leasee's needs. Leasee acknowledges receipt of all items listed in this Rental Agreement and that the equipment is in good working order and repair and that Leasee understands (without further instructions) its proper operation and use.
5. POSSESSION/TITLE. Leasees right to possession of the equipment begins upon equipment leaving ESR 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 ESR. If the equipment are not returned and/or levied upon for any reason whatsoever, ESR may retake said equipment without further notice or legal process and use whatever force is reasonably necessary to do so. Leasee hereby agrees to indemnify, defend and hold ESR harmless from any and all claims and costs arising from such retaking and/or levy. If equipment are levied upon, Leasee shall notify ESR immediately.
6. 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 Leasee makes greater use of the equipment, it is agreed that the additional usage will be charged. Rental charges begin immediately upon equipment leaving ESR. Rental charges end upon return of the equipment to ESR 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 Leasee'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. ESR may terminate rental at any time and retake the equipment without further notice in case of violation by Leasee of any terms or conditions of this Rental Agreement. Leasee agrees to pay any collection costs and attorney fees incurred in collection of this account or any dispute arising out of this Rental Agreement. Leasee agrees to pay a monthly service charge on all unpaid balance. Leasee agrees to pay ESR a fee for environmental compliance.
7. ORDINARY WEAR AND TEAR. Leasee 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. If Lessor at any time removes logo from any leased item, Lessor will be charged a replacement fee determined by Lessee.
8. COMPLIANCE WITH LAWS/USE OF EQUIPMENT. Leasee 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. Leasee agrees at his sole cost and expense to comply with all municipal, county, state and federal laws, ordinates·and regulations which may apply to the use of the equipment during the rental period. Leasee 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.
Leasee 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. Leasee 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 ESR's prior written permission; or, allow a lien to be placed upon the equipment.
Leasee 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 ESR when equipment is found to need repair or maintenance or is not properly functioning. Leasee acknowledges that ESR has no responsibility to inspect the equipment while it is in Leasee's possession.
9. RETURN OF EQUIPMENT. Leasee agrees to return to ESR the equipment in as good condition as when received, ordinary wear and tear excepted by Rental Agreement Agreed Return Date. Leasee shall be liable for all damages to or loss of the equipment and liability incurred prior to equipment's return to ESR. Leasee shall be responsible for all costs incurred by ESR recovering and returning damaged equipment to ESR’s premises. If equipment is to be "picked up” by ESR, Leasee agrees to provide a secure storage location and Leasee accepts all risk including damage to and liability relative to equipment for a reasonable period of time until the equipment is picked up by ESR.
10. DISCLAIMER OF WARRANTIES. ESR makes no warranty of merchantability or fitness for •any particular use of purpose, either express or implied. There is no warranty or representation that the equipment is fit for Leasee's particular intended use, or that it is free of latent defects. ESR shall not be responsible to Leasee 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. ESR shall not be responsible for any defect or failure unknown to ESR. Leasees 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 Leasee notifies ESR immediately of such failure and returns the equipment to Rental Center within twenty-four (24) hours of such failure.
11. PURCHASE ORDERS. The use of Leasee's purchase order number on this Rental Agreement is for Leasee's convenience and identification only.
12. SUBLETTING/LOCATION OF EQUIPMENT. Leasee agrees not to sublet, loan or assign the equipment. Leasee shall not move the equipment from the address at which Leasee represented it was to be used.
13. DEFAULT. Should Leasee in any way fail to observe or comply with any provision of this Rental Agreement, ESR 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 any other legal rights and remedies available to ESR. Exercise of any remedy available to ESR shall not constitute an election of remedies or a waiver of any additional remedies to which ESR may be entitled.
14. RETAKING OF EQUIPMENT. If for any reason it becomes necessary for ESR to retake the equipment, Leasee authorizes ESR to retake the equipment without further notice or further legal process and agrees that ESR shall not be liable for any claims for damage or trespass arising out of the removal of the equipment.
15. LEGAL FEES. I n 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.
16. RISK OF LOSS. Lessee hereby assumes all risk of loss, damage destruction, or interference with the use of the Equipment, while the Equipment is in Lessee’s complete care, custody, and control whether or not covered by insurance howsoever arising from or incident to the use, operation, transportation, or storage of the Equipment, and Lessee hereby indemnifies and holds Lessor harmless therefore.
17. NOTICE OF NON-WAIVER/SEVERABILITY. Any failure of ESR to insist upon strict performance by Leasee as regards any provision of this Rental Agreement shall not be interpreted as a waiver of ESR's right to demand strict compliance with all other provisions of this Rental Agreement against Leasee 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.
18. This equipment contains or produces one or more chemicals known to the State of California to cause cancer, birth defects or other reproductive harm.