TERMS AND CONDITIONS OF RENTAL CONTRACT - BIG ORANGE RENTAL, INC.
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For good and valuable consideration, you and Big Orange Rental, Inc., a Florida corporation (also referred to herein as “Big Orange,” “BOR,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” means the first page of this Contract; “Contract” means P.1 together with these Terms and Conditions; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” provided per Section [or “§”] 4 below); “Site” means the location where the Item(s) is/are to be delivered and/or used, as set forth on P.1; and “Customer,” “Lessee,” “you” and “your” mean the customer, renter or lessee identified on P.1.
2. You agree to rent from Big Orange the Rented Item(s) for the period(s) specified on P.1 (the “Term”), at the end of which, your right to use and possess the Rented Item(s) shall expire and terminate. You agree to pay BOR all rent and other amounts set forth on P.1 (the “Rent”), together with all other charges accruing hereunder, without proration, reduction, or setoff and remain liable for any and all losses, injuries, damages, and theft of, to or arising in connection with such Item(s), until all such Item(s) is/are returned to and accepted by BOR in the return condition required under § 6.
3. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). Unless otherwise agreed by Big Orange: (a) you: (i) will pay us: (A) the Estimated Rent and any deposit specified on P.1 in advance of the Term (the “Prepayment”); and (B) all other amounts coming due hereunder upon demand; and (ii) agree that: (A) we may deduct any amount you owe us from any Prepayment; (B) no interest will accrue on any Prepayment; (C) no Prepayment will be deemed a limit of your liability to us; and (D) all Prepayments are NON-REFUNDABLE; (b) all rental rates are for normal use of the Rented Item(s) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which Rent is charged hereunder (each, a “Rental Day”), 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day period (zero hours for any and all uncharged-for periods), in accordance with the terms of this Contract and the “Instructions” described in § 4; (c) additional Rent as provided in § 6 will be due for overuse and late returns; (d) you will not be entitled to any cancellation right or reduction of Rent or other amounts due and/or coming due under this Contract in order to account for weekends, holidays, Act(s) of God, events of force majeure, time in transit, or any other period(s) of nonuse; and (e) anything remaining with, in or on any Item(s) upon return to us will be deemed abandoned.
4. Upon the earlier of your receipt, or our delivery to the Site, of the Rented Item(s) unless you immediately reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by BOR), carefully examined and inspected by you or your agent(s); and (b) you: (i) have carefully reviewed and understand all training, instructions, warnings, manuals, requirements, and other information, if any, including all laws, rules and regulations and standards (including EPA, OSHA, ASME, IBC, NFPA, IFC, ASSP, IEEE, MSHA, DOT, FMCSA, IFTA, ANSI and other standards) pertaining to any one or more of such Item(s) (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust, Cleaning, PPE, PFP and Electronic Logging Device requirements); (iii) have been made aware of the need to use FALL AND RESPIRATORY PROTECTION AND OTHER SAFETY DEVICES; (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all applicable notice(s) to, and obtain all applicable licenses, authorizations, permits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure all underground lines, cables and conduits are clearly and properly marked before using any Item(s) to dig or disturb the ground surface (see below); (vi) will immediately cease using any Item that is damaged, breaks down, malfunctions or proves defective (a “Malfunction”); and (vii) will ensure that all others of any Item(s) comply herewith. You agree to notify: (A) the police and BOR in the event of any theft or accident involving any Rented Item(s); and (B) BOR if any of the other requirements of this § 4 shall be breached or prove incorrect or misleading. For the avoidance of doubt, locating and marking underground utility lines prior to installation is your responsibility. For line locations, call Sunshine at 1-800-432- 4770 or 800-638-4097, and go to www.sunshine811.com, at least 3 full business days in advance.
5. In the event of a Malfunction, as defined in § 4, you will immediately notify, and return the Malfunctioning Item to, us, and provided such Malfunction did not result from or in connection with any wrongful or negligent act or omission of, or any breach of any provision of this Contract by, you or anyone you permit to use or deal with such Item(s), we may, at our option: (a) repair the subject Item; (b) provide you with a comparable Item; or (c) with respect only to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. BOR will have no other obligation(s) with respect to Malfunctions, all of which you waive, together with all incidental and consequential damages.
6. You will ensure the Site is reasonably clean, safe, secure, and fit for delivery and use of the Rented Item(s), to protect, properly maintain and care for each such Item at all times, to keep each such Item safely and securely stored and locked when not in use, and return each such Item to BOR on time at the end of the Term, complete, clean and free of contamination (including asbestos, beryllium, silica, and pathogens), and otherwise in good order, condition, and repair, properly cleaned, disinfected, serviced and maintained, and if applicable, full of the proper fuel, fluids and lubricants. If you fail to do so, in addition to any other amounts specified on P.1, you will promptly pay us: (a) Rent at our highest incremental rate until all such Item(s) have been returned or replaced as required, and (b) all costs and expenses we may incur in connection with such failure. You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS AND ALCOHOL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented Item(s); (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety device(s) in, on or with any Rented Item(s); or (v) take possession of or exercise control over any Rented Item(s), without our prior consent (in our sole and absolute discretion).
7. Except with respect to Rented Items BOR rents from third parties (each, a “TPO”) and then re-rents to you (“Re-Rented Items”), BOR owns and will retain title to all Rented Items at all times. You will have exclusive control over all Rented Item(s) during the Term, subject to your obligation to fully comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item; (b) have any title or ownership interest of, in or with respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any such Item or this Contract without our prior written consent. BOR may substitute one or more Item(s) at any time, and/or sell or assign all or any part of its interests in the Rented Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of BOR.
8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS. YOU AGREE TO: (A) EXERCISE EXTREME CARE; (B) ENSURE THAT ALL RENTED ITEMS ARE USED ONLY FOR ITS/THEIR INTENDED PURPOSE(S), BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED, INSTRUCTED, AND IF APPLICABLE, LICENSED, ADULTS; (C) PROVIDE ALL APPLICABLE TRAINING, FAMILIARIZATION, INSTRUCTIONS AND WARNINGS TO ALL USERS, OPERATORS, AND OCCUPANTS OF THE RENTED ITEM(S); and (D) ensure that each Item is used reasonably, safely and only: (i) for its intended purpose; (ii) within its rated capacity; (iii) unless otherwise agreed by BOR (on a case-by-case basis) at the Site; and (iv) otherwise in compliance with this Contract at all times.
9. You agree to maintain all insurance BOR may require, including (a) liability insurance with minimum limits of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Rented Items for the full (new) replacement cost thereof; (c) workers’ compensation and employer’s liability insurance; and (d) for all trailers included with or in the Rented Item(s), hired auto physical damage (for actual cash value) and hired auto liability insurance with minimum limits of $1,000,000, and as applicable: (i) naming BOR as an additional insured and loss payee; (ii) waiving subrogation against BOR; (iii) being primary and non-contributory, and (iv) including a severability of interests clause and such other provisions as BOR may require. You irrevocably appoint BOR as your agent and attorney-in-fact to submit, negotiate and settle claims and payments on all such policies.
10. With respect to all trailers and towable Items, you shall: (A) carefully inspect the coupling mechanism(s), safety chain(s), tongue jack(s), door(s), latch(es), tires, brakes, taillights, turn signals, pins, and tie-downs before each use; (B) secure, protect and periodically inspect all contents of, and refrain from overloading, such towable(s); (C) connect all taillights and turn signals; (D) fully and timely pay all tolls, taxes, fees, fines, duties, and other applicable charges; (E) maintain them in roadworthy condition; and (F) waive all claims against BOR for associated damage to the motor vehicle(s) (including without limitation, bumpers, brakes, beds, lights, hitches and mirrors).
11. If and only if, we have offered, and you have elected to purchase our OPTIONAL RENTAL EQUIPMENT PROTECTION PLAN (“REP”) and paid the non-refundable REP Fee set forth on P.1 before the Term commences, then solely with respect to Item(s) covered by REP (“Covered Items”), your liability for the cost to repair or replace such Covered Items will be limited as set forth in our RENTAL EQUIPMENT PROTECTION PLAN GUIDE AND ADDENDUM (included herewith and incorporated herein), the terms of which you have carefully reviewed and hereby agree to. You may decline REP if you provide the property damage/inland marine insurance referenced in § 9. REP IS NOT INSURANCE, NOR IS IT A WARRANTY.
12. NO WARRANTIES. BOR IS NOT THE MANUFACTURER OR DESIGNER of any of the Item(s), all of which are provided “AS-IS”. NEITHER BIG ORANGE RENTAL, INC. NOR ANY TPO MAKES ANY WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND GOOD AND WORKMANLIKE PERFORMANCE, as well as any warranty(ies) arising from any course of dealing, course of performance and/or usage of trade) regarding any Item(s) or Service(s) provided by or at the direction of BOR, nor does BOR or any TPO make any warranty(ies) against INTERFERENCE OR INFRINGEMENT, all of which warranties you waive. NO DESCRIPTIONS, DEPICTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY BOR OR ANY TPO. There are no warranties that extend beyond the description on the face hereof.
13. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS, PROPERTY DAMAGE, THEFT, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLA TION, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, BIG ORANGE RENTAL, INC., EACH TPO, their respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (the “Indemnitees”), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from and/or in connection with the Item(s), this Contract, our negligence, and/or your breach of any one or more of the terms hereof; and except only as provided in § 5, (C) WAIVE all rights, remedies and defenses available under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general and special damages, against each of the Indemnitees.
14. If any performance required of Big Orange shall be delayed, impaired or rendered more costly as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God,” event of force majeure (including fire, flood, storm, earthquake, tsunami, slide, collapse, subsidence, war, riot, terrorism, power surge or outage, epidemic, pandemic and governmental and regulatory actions) or other events, facts or circumstances beyond our reasonable control, we will be excused from such performance.
15. Your rental shall be deemed a “net” rental. Accordingly, your duties hereunder are unconditional and shall not be subject to any reduction, setoff or counterclaim. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract, any other contract(s) with BOR, and/or any of your obligations (t)hereunder; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or cease conducting business, or if any Rented Item(s) shall be lost or, unless covered by REP per § 11, damaged, you will be in DEFAULT hereunder and thereunder, whereupon, BOR may with or without legal process or notice (and without liability to you or any guarantor), to the maximum extent permitted under applicable law: (i) cancel the Term and/or the subject contract(s) (and/or your rights to use and possess the Rented Item(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict, disassemble and/or disable any Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage (for which you will indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations (t)hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor our associated damages, losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, overtime, loss of use, interest, attorneys’ fees, repossession costs, and collection costs); and/or (vii) pursue any other rights and/or remedies available in connection (t)herewith, all of which shall be cumulative.
16. This Contract shall be governed by and enforceable under the laws of Florida. Disputes arising in connection with this Contract and/or its subject matter, shall, at our option, be submitted to binding ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator and in a location selected by BOR. Judgment on the arbitrator’s award shall be final and binding and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith but not made subject to arbitration shall lie solely and exclusively in the federal, state and local courts located in or nearest Palm Beach County, Florida (unless waived by BOR). You consent and submit thereto and waive all claims that such venue lies in an inconvenient forum. YOU WAIVE YOUR RIGHTS TO: (A) PARTICIPATE IN ANY JOINT, COLLECTIVE OR CLASS ACTION AGAINST BIG ORANGE RENTAL, INC.; AND (B) TRIAL BY JURY.
17. Any item(s) sold to you (“Sale Items”), as provided on Page 1 are provided “AS-IS” and “WITH ALL FAULTS,” and are subject to the terms of this Contract (modified to address sales); provided that we will have no obligation under § 5 to accept returns of, or to replace, any Sale Items. All item(s) not specifically identified as Sale Items on P.1 will be deemed “Rented Item(s)”.
18. This Contract, together with any addenda we provide, each of which is incorporated herein, represent the entire agreement between you and BOR, superseding all other agreements and representations, including our website and advertising. The terms of this Contract are severable. If any of the term(s) hereof shall be deemed invalid or unenforceable by any court of competent jurisdiction, such term(s) will be deleted, and the remainder of this Contract will remain valid and enforceable. This Contract cannot be further amended or extended except in a writing signed by Big Orange Rental. You authorize BOR to charge all amounts coming due under this Contract to any debit or credit card(s) you provide, and you waive all associated setoffs and chargebacks. All amounts due from you hereunder but not timely paid will bear interest at the lesser of: (a) 18% per annum; or (b) the highest rate permitted under applicable law until paid. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. You agree to fully and timely pay all taxes (including all sales, use, equipment, fuel, excise, and other taxes), fines, fees, tolls, duties, assessments and other charges related to each Item and/or the transactions referenced herein. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies will constitute an election of remedies or a waiver of any right or remedy we may have. If any legal action is commenced in connection with this Contract, BOR will be entitled to recover its costs and expenses associated therewith (including its attorneys’ fees and expenses) from you if BOR prevails. Time is of the essence. To the maximum extent permitted by applicable law, you hereby grant to BOR a lien on any and all real property improved with any Rented Item(s), or on which any Rented Item(s) may be located or used. We may, without notice or liability to you, monitor and/or inspect any Rented Item(s) at any time (Note: We may use GPS or telematics to monitor the Rented Item(s). You consent thereto and agree that all data generated thereby will be the sole property of Big Orange Rental). You waive the benefits of all statutes of limitations regarding our rights and remedies. Our maximum liability to you in connection with this Contract is limited to the Rent actually paid by you to, and received by BOR hereunder for the Item(s). These Terms and Conditions apply to all Rented Item(s) identified on P.1 and to all other Items you obtain from BOR at any time (except only as we may otherwise agree). You agree that: (a) this Contract: (i) is fair and reasonable; and (ii) shall bind and be enforceable by you, Big Orange Rental, the other Indemnitees, and their respective permitted successors and assigns (there being no other third-party beneficiaries hereto). You consent and submit thereto and waive all claims that such venue lies in an inconvenient forum. Digital, electronic, photocopied and facsimiled signatures and initials appearing hereon will be deemed originals.