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).