CONSTRUCTION SUPPLIES RENTAL AGREEMENT TERMS AND CONDITIONS

 

1. Terms. Customer’s execution of this Construction Supplies Rental Agreement (the “Agreement”) or taking possession of the Supplies shall bedeemed acceptance of the terms herein. All of the terms herein are incorporated into this and all past and future contracts between Company and Customerupon Customer’s receipt of Company’s Supplies under those contracts. Any reference in Customer’s purchase order or other Customer document to otherterms that shall control this transaction shall be void. Customer rents the Supplies from Company pursuant to this Agreement. This Agreement is a truelease. The Supplies (a) are and shall remain the personal property of Company and (b) shall not be affixed to any other property.

 

2. Definitions. “Authorized Individuals” are those individuals that Customer directly or indirectly allows to use the Supplies, who are properly trainedto use the Supplies and are not under the influence of any drugs, alcohol, substances or otherwise impaired. “Company” is W.D. Wright Contracting, Inc.“Company Entities” is Company and its affiliated companies, their respective officers, directors, shareholders, employees and agents. “Customer” is identified on the first page of this Agreement and includes any of its representatives, agents, officers, employees or anyone signing this Agreement on its behalf.“Supplies” are the construction materials identified on the first page of this Agreement, together with all replacements, repairs, additions, attachments aand accessoriesand all future Supplies rented. “Incident” is any fine, citation, theft, accident, casualty, loss, vandalism, injury, death or damage to person or property claimed by any person or entity that appears to have occurred in connection with the Supplies. Supplies are considered “Lost” when they are eitherstolen, their location is unknown or Customer is unable to recover them for a period of three (3) days. “MSLPs” are the Supplies manufacturer’s suggestedlist price on or about the date of the Incident relating to the Supplies. “One Shift” means not more than eight (8) hours per day and forty (40) hours per week.“Ordinary Wear and Tear” means normal deterioration considered reasonable in the equipment rental industry for One Shift use. “Pick-Up Number” is thenumber Customer obtains from Company evidencing the Customer’s call to pick up Supplies. “Rental Period” commences when the Supplies are deliveredto Customer or the Site Address and continues until the Supplies are returned to the Store or picked up by Company during normal business hours, providedCustomer has otherwise complied with this Agreement. “Site Address” is the location that Customer represents the Supplies will be located during the RentalPeriod identified earlier. “Store” is the Company location identified earlier.

 

3. Permitted Use. Customer agrees that Company has no control over the manner in which the Supplies are utilized during the Rental Period byCustomer or any third party that Customer implicitly or explicitly permits. Customer shall at all times utilize the Supplies in a safe and conscientious mannerand not use such Supplies to destroy or damage any unauthorized third party property and not to injure any individual. Customer warrants that: (a) prior toeach use, Customer shall inspect the Supplies to confirm that they are in good condition, without defects, includes readable decals and operating and safetyequipment or instructions and is suitable for Customer’s intended use; (b) any apparent agent at the Site Address is authorized to accept delivery of theSupplies (and if Customer requests, Customer authorizes Company to leave the Supplies at the Site Address without requirement of written receipt); (c)Customer shall immediately notify Company if the Supplies are Lost, damaged, unsafe, disabled, malfunctioning, levied upon, threatened with seizure, or ifany Incident occurs; (d) Customer has received from Company all information needed or requested regarding the use of the Supplies; (e) Company is notresponsible for providing training unless Customer specifically requests in writing and Company agrees to provide such training (Customer being responsibleto obtain all training that Customer desires prior to the Supplies’ use); (f) only Authorized Individuals shall use the Supplies; (g) the Supplies’ use shall be in acareful manner, in compliance with all operating and safety instructions provided on, in or with the Supplies and all applicable federal, state and local laws,permits and licenses, including but not limited to, OSHA, as revised; and (h) the Supplies shall be kept in a secure location and to the extent possible safefrom the elements.

 

4. Prohibited Use. Customer shall not (a) alter or cover up any decals or insignia on the Supplies or remove any operating or safety equipment orinstructions; (b) assign its rights under this Agreement; (c) move the Supplies from the Site Address without Company’s written consent; (d) use the Suppliesin a negligent, illegal, unauthorized or abusive manner, or in any publication (print, audiovisual or electronic); or (e) allow the use of the Supplies by anyunauthorized individual (Customer is acknowledging that the Supplies may be dangerous if used improperly or by untrained parties).

 

5. Customer Liability. DURING THE RENTAL PERIOD, CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE POSSESSION, CONTROL OR USE OF THESUPPLIES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, RENTAL CHARGES, THEFT, LOSSES, DAMAGES AND DESTRUCTION, INCLUDINGCUSTOMER TRANSPORTATION, LOADING AND UNLOADING, WHETHER OR NOT THE CUSTOMER IS AT FAULT. After an Incident, Customer shall (a)immediately notify Company, the police, if necessary and Customer’s insurance carriers; (b) secure and maintain the Supplies and the surrounding premisesin the condition existing at the time of such Incident, until Company or its agents investigate; (c) immediately submit copies of all police or other third partyreports to Company; and (d) as applicable, pay Company, in addition to other sums due herein, the rental rate for Supplies until the repairs are completedor Supplies replaced plus either (i) the MSLPS or (ii) the full charges of repairs of damaged Supplies. Accrued rental charges shall not be applied against theseamounts. Company shall have the immediate right, but not obligation, to reclaim any Supplies involved in any Incident.

 

6. No Warranties. Company does not design or manufacture the Supplies and is not the agent of those that do. COMPANY DISCLAIMS ALLREPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPLIES, THEIR DURABILITY, CONDITION, MERCHANTABILITY, ORFITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THE SUPPLIES ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS”AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST COMPANY ENTITIES. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE SUPPLIES AND RELEASESCOMPANY ENTITIES FROM ALL LIABILITIES AND DAMAGES (INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIALDAMAGES) IN ANY WAY CONNECTED WITH THE SUPPLIES, THEIR OPERATION OR USE OR ANY DEFECT OR FAILURE THEREOF OR A BREACH OF COMPANY’SOBLIGATIONS HEREIN.

 

7. Release and Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, HOLDS COMPANY ENTITIESHARMLESS AND AT COMPANY’S REQUEST, DEFENDS COMPANY ENTITIES (WITH COUNSEL APPROVED BY COMPANY), FROM AND AGAINST ALL LIABILITIES,CLAIMS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING ATTORNEY’S AND/OR LEGAL FEES AND EXPENSES) HOWEVER ARISING OR INCURRED, RELATED TOANY INCIDENT, DAMAGE TO PROPERTY, INJURY OR DEATH OF, ANY PERSON, CONTAMINATION OR ALLEGED CONTAMINATION, OR VIOLATION OF LAW ORREGULATION CAUSED BY OR CONNECTED WITH THE (a) USE, POSSESSION OR CONTROL OF THE SUPPLIES DURING THE RENTAL PERIOD OR (b) BREACH OFTHIS AGREEMENT, WHETHER OR NOT CAUSED IN PART BY THE ACTIVE OR PASSIVE NEGLIGENCE OR OTHER FAULT OF ANY PARTY INDEMNIFIED HEREIN ANDANY OF THE FOREGOING ARISING OR IMPOSED IN ACCORDANCE WITH THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY. CUSTOMER ALSO AGREES TOWAIVE ITS WORKERS’ COMPENSATION IMMUNITY, TO THE EXTENT APPLICABLE. CUSTOMER’S INDEMNITY OBLIGATIONS SHALL SURVIVE THE EXPIRATIONOR TERMINATION OF THIS AGREEMENT. All of Customer’s indemnification obligations under this paragraph shall be joint and several.

 

8. LIMITATION OF COMPANY’S LIABILITY. IN CONSIDERATION OF THE RENTAL OF THE SUPPLIES, CUSTOMER AGREES THAT COMPANY’S LIABILITYUNDER THIS AGREEMENT, INCLUDING ANY LIABILITY ARISING FROM COMPANY’S, COMPANY ENTITIES, OR ANY THIRD PARTY’S COMPARATIVE,CONCURRENT, CONTRIBUTORY, PASSIVE OR ACTIVE NEGLIGENCE OR THAT ARISES AS A RESULT OF ANY STRICT OR ABSOLUTE LIABILITY, SHALL NOT EXCEEDTHE TOTAL RENTAL CHARGES PAID BY CUSTOMER UNDER THIS AGREEMENT.

 

9. Insurance. During the Rental Period, Customer shall maintain, at its own expense, the following minimum insurance coverage: (a) general liabilityinsurance of not less than $1,000,000 per occurrence, including coverage for Customer’s contractual liabilities herein such as the release and indemnification clause contained in Section 7; (b) property insurance against loss by all risks to the Supplies, in an amount at least equal to the MSLPs thereof; and (c) worker’scompensation insurance as required by law. Such policies shall be primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, nameCompany and its agents as an additional insured (including an additional insured endorsement) and loss payee, and provide for Company to receive at leastthirty (30) days prior written notice of any cancellation or material change. Any insurance that excludes boom damage or overturns is a breach. Customershall provide Company with certificates of insurance evidencing the coverages required above prior to any rental and any time upon Company’s request. Tothe extent Company Entities carry any insurance, Company Entities’ insurance will be considered excess insurance. The insurance required herein does notrelieve Customer of its responsibilities, indemnification, or other obligations provided herein, or for which Customer may be liable by law or otherwise.

 

10. Rental Rates. The total charges specified in this Agreement are: (a) estimated based upon Customer’s representation of the estimated Rental Periodidentified herein (rental rates beyond the estimated Rental Period may change) and other information conveyed by Customer to Company; and (b) for theSupplies’ use for One Shift, unless otherwise noted. Weekly and four (4) week rental rates shall not be prorated. Rental charges accrue during Saturdays,Sundays and holidays. The rental rates do not include and Customer is responsible for, (i) all consumables, fees, licenses, present and future taxes and anyother governmental charges based on Customer’s possession and/or use of the Supplies, including additional fees for more than One Shift use; (ii) deliveryand pickup charges to and from the Store, including but not limited to any freight, transportation, delivery, pickup and surcharge fees listed in this Agreement;(iii) a cleaning fee if required; and (iv) miscellaneous charges.

 

11. Payment. Customer shall pay amounts due, without any offsets, in full at the time of rental. Customer must notify Company in writing of anydisputed amounts, including credit card charges, within fifteen (15) days after the receipt of the invoice/contract or Customer shall be deemed to haveirrevocably waived its right to dispute such amounts. At Company’s discretion, any credit account with a delinquent balance may be placed on a cash basis,deposits may be required and the Supplies may be picked up without notice. Due to the difficulty in fixing actual damages caused by late payment, Customeragrees that a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law shall be assessed on all delinquent accounts, untilpaid in full. Customer shall pay a fee of seventy-five dollars ($75.00) for each check returned for lack of sufficient funds to compensate Company for itsoverhead for processing missed payment. Deposits will only be returned after all amounts are paid in full. Customer agrees that if a credit card is presentedto pay for charges or to guarantee payment, Customer authorizes Company to charge the credit card all amounts shown on this Agreement and chargessubsequently incurred by Customer, including but not limited to, loss of or damage to the Supplies and extension of the Rental Period. If Customers requirethe Company to return to the site for maintenance or additional supplies outside of the original scope of work, the Company will charge $75/hr. per personand will be portal to portal. A 4-hour minimum will be charged in each case.

 

12. Return of Supplies. Company may terminate this Agreement at any time, for any reason. At the end of the Rental Period, the Supplies shall bereturned to Company in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. Customerwill continue to be responsible for rental and other charges after the Rental Period if the Supplies are not returned in the condition required herein. IfCompany delivered the Supplies to Customer, Customer shall notify Company that the Supplies are ready to be picked up at the Site Address and obtain aPick-Up Number, which Pick-Up Number Customer should keep as proof of the call; provided Customer remains liable for any loss, theft, damage to, ordestruction of the Supplies until Company confirms that the Supplies are returned. In the event of lost, theft, damage to, or destruction of Supplies, Companycan charge up to full replacement cost of any Supplies that are lost or damaged during use. Customer will not be charged the rental charges after the datethe Pick-Up Number is given, provided Customer has otherwise complied with this Agreement. No pickups occur on Sundays or statutory holidays andSaturday pickups are dependent on specific Store hours. If Customer picked up Supplies, Customer shall return Supplies to the same Store during that Store’snormal business hours. If the Supplies are not returned by the estimated end of the Rental Period specified earlier, Customer agrees to pay the applicablerental rate for the Supplies until the end of the Rental Period.

 

13. Purchases. If this Agreement identifies any Supplies, materials or other items that is to be purchased by Customer, Company sells and delivers suchitems to Customer on an “AS IS, WHERE IS” basis, with all faults and without any warranties (other than manufacturer warranties, if any) in consideration forCustomer’s payment to Company of the full purchase price of the item, Company retains title to the item until Customer has paid in full.

 

14. Default. Customer shall be in default if Company deems itself insecure or if Customer: (a) fails to pay sums when due; (b) breaches any Section ofthis Agreement; (c) becomes a debtor in a bankruptcy proceeding, goes into receivership, takes protection from its creditors under any insolvency legislation,ceases to carry on business, or has its assets seized by any creditor; (d) fails to insure the Supplies as required, or otherwise places the Supplies at risk; (e)fails to return Supplies immediately upon Company’s demand; or (f) is in default under any other contract with Company. If a Customer default occurs,Company shall have, in addition to all rights and remedies at law or in equity, the right to repossess the Supplies without judicial process or prior notice.Customer shall pay all of Company’s costs, including reasonable costs of collection, court costs, attorneys and legal fees, incurred in exercising any of its rightsor remedies herein. The use of false identification to obtain Supplies or the failure to return Supplies by the end of the Rental Period may be consideredtheft, subject to criminal prosecution and civil liability where permitted, pursuant to applicable laws. Company shall not be liable due to seizure of Suppliesby order of governmental authority. CUSTOMER WAIVES ANY RIGHT OF ACTION AGAINST COMPANY ENTITIES FOR SUCH REPOSSESSION.

 

15. JURY TRIAL WAIVER. IN ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO THIS AGREEMENT, CUSTOMER ANDCOMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENTTO ENTERING INTO THIS AGREEMENT.

 

16. Governing Law; Jurisdiction. The parties expressly and irrevocably agree: (a) this Agreement, including any related tort claims, shall be governedby the laws of Pennsylvania, without regard to any conflicts of law principles and (b) if any Section of this Agreement is prohibited by any law, such Sectionshall be ineffective to the extent of such prohibition without invalidating the remaining Sections. The parties irrevocably agree that any dispute broughtunder this Agreement shall have jurisdiction in the state and federal courts in Beaver or Allegheny County, Pennsylvania, and\or the United States DistrictCourt of the Western District of Pennsylvania and hereby specifically consents to the venue of such courts.

 

17. Miscellaneous. This Agreement constitutes the entire agreement of the parties regarding the Supplies and may not be modified except by writtenamendment signed by the parties. Customer’s obligations hereunder shall survive the termination of this Agreement. This Agreement and all of Customer’srights in and to the Supplies are subordinate to all rights, title and interest of all persons (including Company’s lenders) who have rights in the Supplies.Headings are for convenience only. To the extent that any terms in this Agreement conflict, the parties agree that the more specific terms control. A copyof this Agreement shall be valid as the original. Any failure by Company to insist upon strict performance of any Section of this Agreement shall not beconstrued as a waiver of the right to demand strict performance in the future. Customer and the person signing this Agreement represent that: (a) they bothhave full authority to execute, deliver and perform this Agreement and (b) this Agreement constitutes a legal, valid and binding obligation of Customer,enforceable in accordance with its terms.