Rental Agreement Terms and Conditions

RENTAL AGREEMENT TERMS AND CONDITIONS

Lessor hereby rents the Equipment identified in the Rental Agreement between Lessor and Lessee (the “Rental Agreement”) for the period commencing when the Equipment leaves Lessor’s premises and ending upon its return to Lessor’s Branch. Lessor may terminate the Rental Agreement at any time by written notice to Lessee and/or by retaking the Equipment. These Rental Agreement Terms and Conditions (these “Terms and Conditions”) are incorporated by reference into the Rental Agreement as if set forth in their entirety.

1. 1. DEFINITIONS: “Lessor” means White Cap, L.P. and any of its affiliated companies. “Equipment” means any one or more of the items identified in the Rental Agreement, and includes any blades, cables, fuel tanks, and nozzles. “Lessee” means the person or entity identified on the first page of the Rental Agreement, including any representative, agent, officer, or employee of Lessee. “Branch” means the Lessor address identified on the Rental Agreement. “Rental Period” means the period of time between the “Date Out” and the “Date In” set forth in the Rental Agreement.
   2. AUTHORITY: Any individual signing the Rental Agreement on behalf of Lessee represents and warrants to Lessor that he or she is of legal age and has the authority and power to sign the Rental Agreement on his or her own behalf, or on behalf of Lessee, as applicable.
   3. RECEIPT & INSPECTION OF EQUIPMENT: Lessee agrees that the Equipment was inspected by Lessee prior to taking possession thereof and finds it in good working order and repair and suitable for Lessee’s needs. Lessee is familiar with the proper operation and use of each item of Equipment. Lessee has inspected or will inspect all hitches, bolts, safety chains, hauling tongues, and other devices and materials used to connect the Equipment to Lessee’s towing vehicle, if any. Lessor is not responsible for any damage to Lessee’s towing vehicle caused by detachable hitches or mirrors. Lessee shall be solely responsible for the operation of the Equipment and allow only licensed, trained, and experienced operators to operate the Equipment in accordance with all Equipment specifications and customary safety practices.
   4. TITLE; NO PURCHASE OPTION; NO LIENS: This is an agreement of rental only and NOT a contract for sale, and Lessee will not have or acquire any right, title, or interest, legal or equitable, in the Equipment or any part thereof except the right to use the Equipment during the Rental Period and subject to the Rental Agreement and these Terms and Conditions. Title to the Equipment is and at all times will remain with Lessor. Unless covered by a specific supplemental agreement signed by Lessor, Lessee has no option or right to purchase the Equipment. Lessee will keep the Equipment free and clear from levy, legal or equitable, and all mechanic’s and other claims, liens, and encumbrances. Lessee appoints Lessor its true and lawful attorney-in-fact to prepare and execute in Lessee’s name and on Lessor’s behalf any financing statement in order to protect Lessor’s interest in the Equipment.
   5. NO ASSIGNMENT, LENDING, OR SUBLETTING: Only the parties hereto and those persons whose names are listed on the Rental Agreement are authorized to use the Equipment, and Lessee will not permit the Equipment to be used by any other person. Lessee shall operate, and when not in operation store, the Equipment at the location specified in the Rental Agreement and shall not remove the Equipment from such location without the prior express written consent of Lessor. Lessor has the right to enter the premises where the Equipment is located at any reasonable time for purposes of inspecting the Equipment.  There are no third-party beneficiaries under the Rental Agreement, other than the owner of any re-rented Equipment.
   6. DISCLAIMER OF WARRANTIES: LESSOR IS NOT THE MANUFACTURER OR DESIGNER OF THE EQUIPMENT, ALL OF WHICH IS RENTED ON AN AS-IS, WHERE-IS, WITH ALL FAULTS BASIS, EXCEPT TO THE EXTENT CONTRARY TO APPLICABLE LAW. LESSOR MAKES NO, AND EXPRESSLY DISCLAIMS ANY, EXPRESS OR IMPLIED WARRANTIES, AS TO THE MERCHANTABILITY OR SUITABILITY OF THE EQUIPMENT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, OR THE EQUIPMENT’S DESIGN OR CAPACITY. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR LESSEE’S INTENDED PURPOSE OR THAT IT IS FREE FROM DEFECTS EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE RENTAL AGREEMENT.
   7. MALFUNCTIONING EQUIPMENT: Should the Equipment become unsafe, malfunction, or require repair, Lessee will immediately cease using the Equipment, notify Lessor, and return the Equipment to Lessor. If the condition is the result of normal operation, Lessor will repair or replace the Equipment with similar equipment in working order if available at the Branch. Lessor has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse, or neglect by Lessee or its employees, agents, or contractors. Lessee’s sole remedy for any failure or defect in the Equipment will be the termination of any rental charges accruing after the time of failure. Lessee must return the Equipment within 24 hours from the time of malfunction or failure to terminate rental charges.
   8. RETURN OF EQUIPMENT; DAMAGED & LOST EQUIPMENT; RETAKING EQUIPMENT: At the expiration of the Rental Period, Lessee will promptly return the Equipment to the Branch during the Branch’s normal business hours. The Equipment is to be in the same condition as it was received, subject to ordinary wear and tear as defined below. Lessee will be liable for all damages to or loss of the Equipment and any of its parts or attachments, from the time the Equipment leaves the Branch until the time it is returned to the Branch, including any damage incurred while in transit to or from Lessee. In the case of the loss or destruction of any Equipment, or the inability or failure to return same to Lessor, for any reason whatsoever, Lessee will immediately pay the full replacement value of the Equipment together with the full rental rate as specified in the Rental Agreement until such time as the Equipment is replaced and received by Lessor. If the Equipment is returned in damaged or excessively worn condition, Lessee is responsible for the cost of repair and will pay rental charges until such time as the Equipment is repaired and returned to Lessor. Lessor is under no obligation to repair the Equipment unless and until Lessee has paid the estimated costs thereof. If the Equipment is not returned at the expiration of the Rental Period or for any reason it becomes necessary for Lessor to retake the Equipment to protect the Equipment or Lessor from loss or damage, Lessor and its agents may go upon Lessee’s property and retake the Equipment, without notice and/or legal process, and Lessee waives all rights to a prior judicial hearing. Lessor and its agents may take all action reasonably necessary to retake the Equipment, and Lessee waives for itself and its agents and employees all claims for damages and losses, physical and pecuniary, caused by retaking by Lessor. Lessee agrees to pay all costs and expenses incurred by Lessor in retaking the Equipment.
   9. WEAR AND TEAR; TAMPERING: Reasonable wear and tear of the Equipment will mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift (8 hours per day, 40 hours per week) basis. The following will not be deemed reasonable wear and tear: (a) damage resulting from the lack of lubrication or maintenance of necessary oil, water, and air pressure levels; (b) except where Lessor expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventive maintenance suggested in the manufacturer’s operation and maintenance manual; (c) damage resulting from any collision, overturning, or improper operation, including overlooking or exceeding the rated capacity of the Equipment; (d) damage in the nature of dents, bending, tearing, staining, and misalignment to or of the Equipment or any part thereof; (e) any other damage to the Equipment not considered ordinary and reasonable in the equipment rental industry; or (f) damage caused by overhead strikes. Repairs to the Equipment will be to the reasonable satisfaction of Lessor and in a manner that will not adversely affect the operation, manufacturer’s design, manufacturer’s warranty, or value of the Equipment. Lessee shall not disconnect or tamper with any hourmeter, odometer, or speedometer on any Equipment, and if any of the foregoing shows of having been disconnected or tampered with, Lessee agrees to pay Lessor an additional fee of $10.00 per hour for each and every hour Lessee has the Equipment away from the Branch.
   10. TIRE/TUBE REPAIR OR REPLACEMENT: Repair or replacement of tires and/or tubes is the responsibility of Lessee and is not included in the rental rate.
   11. CLEANING: Prior to return, Lessee shall clean the Equipment to Lessor’s reasonable satisfaction. If the Equipment requires excessive cleaning (e.g. cleaning of concrete, paint, chemical residue, or other items not easily removed), Lessor may elect to clean the Equipment on Lessee’s behalf at a rate of $100.00 per hour for each and every hour Lessor spends cleaning the Equipment.
   12. FAILURE TO DELIVER: Lessee releases and discharges Lessor from any and all liability or damages (including consequential, indirect, and special damages) that might be caused by Lessor’s failure or inability to deliver any Equipment by any specified date or time.
   13. DISCLAIMER AS TO CONSEQUENTIAL OR SPECIAL DAMAGE: Under no circumstances will Lessor be liable for any consequential, indirect, or special damages any person, firm, corporation, or other entity may suffer or claim to suffer or incur or claim to incur as a result of any defect in the Equipment or in any correction or alteration thereof made or furnished by Lessor or others. “Consequential, indirect, or special damages” as used herein includes, but is not limited to, costs of transportation, lost sales, lost orders, lost profits, lost income, increased overhead, labor and material costs, and costs of manufacturing variances and operation inefficiencies. Lessor’s maximum liability in connection with the Rental Agreement is limited to the amount actually paid by Lessee thereunder.
   14. INDEMNITY/HOLD HARMLESSI: Lessee agrees it is fully responsible for the Equipment while in Lessee’s possession EVEN IF A CALL OFF NUMBER HAS BEEN ISSUED. Lessee agrees to take all necessary steps not only to protect the Equipment itself, but to protect anybody who might come in contact with or work near where the Equipment is used, transported, stored, or maintained by Lessee. Lessee understands and agrees that Lessor has no responsibility either to Lessee or any other person, firm, corporation, or entity, to pay damages arising out of the Equipment or its use, storage, or transportation by Lessee, or while Lessee has possession of the Equipment. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LESSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LESSOR AND ITS OFFICERS, MANAGERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AND AFFILIATES, AGAINST ALL LOSS, DAMAGE, EXPENSE, AND PENALTY ARISING FROM ANY ACTION ON ACCOUNT OF ANY INJURY TO PERSON OR PROPERTY OCCASIONED BY THE OPERATION, USE, HANDLING, OR TRANSPORTATION OF THE EQUIPMENT DURING THE RENTAL PERIOD OR WHILE THE EQUIPMENT IS IN THE POSSESSION OR CONTROL OF LESSEE, INCLUDING, BUT NOT LIMITED TO, LEGAL COSTS INCURRED IN DEFENSE OF SUCH ACTIONS. LESSEE AGREES IT IS RESPONSIBLE FOR ANY AND ALL INJURY TO A THIRD PERSON OR DAMAGE TO PROPERTY, EVEN IF LESSOR WAS ALSO NEGLIGENT WITH REGARD TO THE EQUIPMENT, AND LESSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LESSOR AND ITS OFFICERS, MANAGERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, AND AFFILIATES IN THOSE CIRCUMSTANCES. LESSEE SHALL NOTIFY LESSOR IMMEDIATELY IF THE EQUIPMENT IS INVOLVED IN, OR A PART OF, AN ACCIDENT AND FURNISH LESSOR WITH A COMPLETE REPORT OF ANY ACCIDENT INVOLVING THE EQUIPMENT, INCLUDING NAMES AND ADDRESSES OF ALL PERSONS INVOLVED AND ALL WITNESSES.
   15. RENTAL PERIOD & CALCULATION OF CHARGES: Rental charges commence when the Equipment leaves the Branch and ends when the Equipment is returned to the Branch, so long as the return is during Lessor’s normal business hours. Rental charges accrue during Saturdays, Sundays, and holidays. Rental rates are for normal usage based on an 8-hour work day, 40 hours per week, and 160 hours per 4 week time frame. On power Equipment, operation in excess of one shift will be at Lessor’s standard premium rental rates. Lessee will truthfully and accurately certify to Lessor the number of shifts the Equipment was operated. Lessee’s right to possess the Equipment terminates on the expiration of the Rental Period and retention or possession after this time is a material breach of this Agreement. The rental cannot be terminated until a call-off number is issued.
   16. LATE RETURN: If Equipment is not returned by Lessor’s close of business on the “Due In” date on the Rental Agreement, Lessee agrees to pay for any damage to or loss of the Equipment occurring between the time the Equipment is returned and the start of Lessor’s next business day in the event that the Equipment is returned any time other than during Lessor’s normal business hours. Lessor will not make a refund on any items out over 30 minutes. Lessor may report the Equipment stolen if held five days beyond the “Due In” date. The completion of the Rental Period is not effective unless a call-off number has been issued by Lessor.
   17. DEPOSIT/PAYMENT: In addition to securing the payment of rental charges hereunder, Lessee agrees that any rental deposit shall be deemed to be a guaranty by Lessee of the full and complete performance of each and every event of all the terms, covenants, conditions, obligations, and agreements to be performed by Lessee hereunder, and in the event of any breach by Lessee, the deposit will be credited against any damages, costs, or expenses resulting from said breach. All amounts due hereunder shall be payable in full at the earliest of the end of the Rental Period, return of the Equipment to Lessor, or 30 days following Lessor’s invoice to Lessee if Lessee has a credit account with Lessor. Lessee acknowledges and agrees it is not entitled to any interest accruing on any rental deposit.
   18. ENVIRONMENTAL FEE: Due to the hazardous nature of some waste and other products to comply with federal and state environmental laws and regulations, and to promote a clean and sustainable environment, Lessor charges an environmental service charge, plus applicable taxes thereon, in connection with certain rentals. This charge is used at Lessor’s discretion but may be used by Lessor to comply with applicable environmental laws and regulations and/or Lessor’s own policies.
   19. USE OF EQUIPMENT; COMPLIANCE WITH LAW. Lessee warrants, covenants and agrees that (i) the Equipment will be in Lessee’s sole care, custody, and control; (ii) the Equipment will be used only in its operational capabilities as per the manufacturer’s specifications; (iii) only qualified operators will use the Equipment; and (iv) Lessee owns or rents all necessary safety devices required for operation of the Equipment.  As Lessor has no control over the use of the Equipment by Lessee, Lessee agrees at its sole expense to comply with all laws and regulations, including Occupational Safety and Health Administration Act of 1970 (OSHA) and all other federal, state, and local laws, regulations, and ordinances, affecting the Equipment or the operation thereof while it is in the possession of Lessee. Lessee shall indemnify, defend, and hold harmless Lessor and its officers, managers, directors, members, employees, shareholders, and affiliates from any liability or expense, including, but not limited to, attorney’s fees, resulting from any actual or asserted violations of such laws, regulations, and/or ordinances.
   20. DEFAULT: Lessee shall be deemed to be in default should Lessee provide Lessor with incorrect or misleading information, fail to pay any amount when due, fail to perform, observe or keep any provision of the Rental Agreement, become “insolvent” as defined herein, relocate the Equipment to any other address other than the address designated in the Rental Agreement without the prior written consent of Lessor, or otherwise become in default. If Lessee is in default, Lessor may do any one or more of the following: (a) terminate the Rental Agreement, ending the Rental Period, (b) declare the entire amount owed due and payable immediately and commence legal action, (c) cause Lessor’s employees or agents without notice or legal process to enter upon Lessee’s property and take all actions necessary to retake and repossess the Equipment, in which event Lessee waives all claims for damages and losses, physical and pecuniary, and (d) pursue any other remedies available at law or in equity. Lessee shall be considered “insolvent” if Lessee (i) does not pay, is unable to pay, or admits its inability or anticipated inability to pay its debts; (ii) makes an assignment for the benefit of creditors or petitions or applies to any tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; or (iii) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any one jurisdiction whether now or hereafter in effect.
   21. LESSEE’S INSURANCE COVERAGE: Lessee agrees to maintain and carry, at its sole cost and expense, the following minimum insurance coverages: adequate liability, physical damage, public liability, property damage, and casualty insurance for the full replacement cost of the Equipment, 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 during the entire Rental Period. All insurance required hereunder is primary and non-contributory to any other insurance maintained by Lessor. Any deductibles or self-insured retentions shall be the sole responsibility of Lessee. All insurance required hereunder shall include a waiver of rights of recovery against Lessor or its insurers by Lessee and its insurers, as well as a waiver of subrogation against Lessor or its insurers. When requested, Lessee shall supply proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Lessor as loss payee and named insured, such insurance and evidence thereof to be in amounts and form satisfactory to Lessor. The Certificate of Insurance and policy shall provide that Lessor shall receive not less than 30 days’ prior written notice to any cancellation of the insurance required hereunder.
   22. RENTAL PROTECTION PLAN (“RPP”): The terms of Sections 8 and 9 of these Terms and Conditions are modified by the RPP, and Lessor will limit the amount Lessor collects from Lessee for loss, theft, damage, or destruction of or to the Equipment to the following amounts: (a) for lost or stolen Equipment, Lessee will be responsible for 10% of the replacement cost; (b) for repairs for incidental or accidental damage to the Equipment, the RPP will cover 100% of the cost of repair after a $1,000 deductible paid by Lessee; and (c) nothing for the rental charges that would otherwise accrue during the period when damaged or destroyed Equipment is being repaired or replaced by Lessor or, for lost or stolen Equipment; provided however, the foregoing RPP coverage only applies if the Conditions are satisfied and Exclusions do not apply. THE RPP IS NOT INSURANCE AND DOES NOT PROTECT LESSOR FROM LIABILITY TO LESSOR OR OTHERS ARISING OUT OF POSSESSION OR OPERATION OF THE EQUIPMENT, INCLUDING INJURY OR DAMAGE TO PERSONS OR PROPERTY.
       i. RPP Conditions. All of the following “Conditions” must be satisfied for the RPP to apply: (A) Lessee accepts the RPP in advance of the rental: (B) Lessee pays 15% of the gross rental charges as the fee for the RPP, (C) Lessee fully complies with the terms of the Rental Agreement and these Terms and Conditions: (D) Lessee’s account is current at the time of the loss, theft, damage, or destruction of the Equipment; and (E) none of the Exclusions apply.
       ii. Exclusions. Lessee assumes the Exclusion risks, meaning that if any Exclusion occurs, the RPP does NOT cover the loss, theft, damage, or destruction resulting from such Exclusion. “Exclusions” means loss, theft, damage, or destruction of the Equipment (A) due to misuse or negligence, (B) caused by loss or theft of the Equipment not reported by Lessee to police within 24 hours of discovery and substantiated by a written police report promptly delivered to Lessor, (C) caused by loss or theft of the Equipment that has been improperly secured; and (D) due to Acts of God, such as floods, wind, storms, or earthquakes. THE EXCLUSIONS ARE RISKS ASSUMED BY LESSEE AND ARE NOT COVERED BY THE RPP.
       iii. Recovery of Equipment. Notwithstanding anything to the contrary in the Rental Agreement or these Terms and Conditions, if lost or stolen Equipment is recovered, Lessor retains ownership of the Equipment regardless of any payments made by Lessee or Lessee’s insurance company with respect to such Equipment, all of which payments are non-refundable. Lessee agrees to promptly return any Equipment that is recovered.
       iv. Subrogation. Lessor shall be subrogated to Lessee’s rights to recover against any person or entity relating to any loss, theft, damage, or destruction of or to the Equipment. Lessee shall cooperate with Lessor, assign to Lessor any claims or proceeds arising from such loss, theft, damage, or destruction, execute and deliver to Lessor whatever documents are required, and take all other necessary steps to secure in Lessor such rights.
   23. ENTIRE AGREEMENT: The Rental Agreement, including these Terms and Conditions, constitutes the entire agreement between Lessee and Lessor regarding the rental of the Equipment. There are no oral or other representations or agreements not included herein. Neither party’s rights may be changed, and no extension of the Rental Period may be made except in a writing signed by both parties. Use of Lessee’s Purchase Order Number is for Lessee’s convenience only. The Rental Agreement and these Terms and Conditions supersede any provisions or terms whether sent to or received prior or subsequent to the date of the Rental Agreement.
   24. ORDER OF PRECEDENCE: The terms and conditions of the Rental Agreement and these Terms and Conditions shall control over any conflicting preprinted terms and conditions contained in Lessee’s purchase order or similar documents.
   25. OTHER PROVISIONS:
       A. Failure of Lessor to insist upon strict performance on the Rental Agreement or these Terms and Conditions is not a waiver of Lessor’s right to demand strict compliance.
       B. Lessee has carefully reviewed the Rental Agreement and these Terms and Conditions and waives any principle of law that would construe any provision hereof against Lessor as the draftsperson of the Rental Agreement or these Terms and Conditions.
       C. Lessee agrees to pay Lessor’s reasonable costs of collection, including, but not limited to, court costs, reasonable attorney’s fees, and other expenses incurred by Lessor in the collection of any charges due under the Rental Agreement or in connection with the enforcement of its terms and agrees to pay a service charge in the lesser amount of 1.5% per month (18% APR) and the maximum rate allowable by law on all amounts not paid within 30 days of their due date. Any cause of action Lessor has against Lessee may be assigned without Lessee’s consent to any affiliate, parent, or subsidiary of Lessor.
       D. The Rental Agreement, these Terms and Conditions, and the business relationship between Lessor and Lessee shall be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflicts of laws rules, and specifically excluding the UN Convention on Contracts for the International Sale of Goods. The parties agree that any legal action arising under or related to this Agreement will be brought in Cobb County, Georgia, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived. THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL.
       E. The invalidity or unenforceability of all or part of the Rental Agreement or these Terms and Conditions will not affect the validity or enforceability of the other terms. The parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
       F. WARNING: The use of false identification to obtain the Equipment or the failure to return the Equipment by the end of the Rental Period without notice to Lessor may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provision.
       G. Lessee consents to the collection, use, and disclosure of the data and information Lessee provides to Lessor, including, but not limited to, personal identifiable information and financial information.  Further, Lessee consents to the collection and monitoring of electronic information, including Global Positioning System (“GPS”) data, generated by or in connection with Lessee’s use of or the location of the Equipment.  Lessee agrees that Lessor owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes.  Lessee shall obtain all consents as may be required under any applicable laws from its employees, agents, or contractors to permit Lessor’s collection and use of such data.  Lessor’s Privacy Policy is published at https://www.whitecap.com/terms/privacy and is incorporated herein by this reference. 
       H. TIME IS OF THE ESSENCE WITH RESPECT TO LESSEE’S OBLIGATIONS UNDER THE RENTAL AGREEMENT AND THESE TERMS AND CONDITIONS.