RENTAL TERMS AND CONDITIONS
1. Agreement. Unless otherwise agreed in a written document signed by a vice president of Empire Southwest, LLC ("Empire"), these Rental Terms and Conditions ("Terms") govern the rental of all equipment from Empire ("Equipment") by any individual or entity that rents such Equipment from Empire ("Client") and are incorporated into each of Client's Rental Orders for Equipment from Empire (each, a "Rental Order"). Empire hereby rejects the terms of any purchase order, rental agreement or other document submitted by Client, unless the document is signed by a vice president of Empire. The placing of a Rental Order with Empire, the issuance of a purchase order for rental of Equipment from Empire, or the receipt, acknowledgement or acceptance of Equipment for rental by Client constitutes Client's acceptance of these Terms exactly as written. Empire reserves the right, in its sole discretion, to modify or replace any of these Terms at any time, and such modifications or replacements shall apply to all rentals of Equipment from Empire after the date of such modification or replacement. It is Client's responsibility to check these Terms each time that Client is renting Equipment from Empire.
2. Title. Empire is and shall remain the owner of the Equipment. Client will not acquire any equity or ownership interest in the Equipment by making rental payments or repairs. Client will not place any liens on the Equipment and will not allow third parties to encumber Empire's title. Rental rates, in compliance with A.R.S. § 44.1799.41, include an amount sufficient to cover personal property tax due in connection with the Equipment.
3. Rental Term and Rental Period. As to each piece of Equipment, the "Rental Term" is the time period for which Client has ordered such Equipment, as specified on the Rental Order. As to each piece of Equipment, the "Rental Period" is the time period that commences on the delivery of the Equipment to Client and ends upon its return to Empire's premises. Client shall pay rent on the Equipment at the rates set forth on the Rental Order for the entire Rental Period (and during repairs to Equipment that is returned in a damaged or excessively worn condition as described in Section 9 below). No allowances will be made for Saturdays, Sundays, holidays, transit time or for any period Equipment is not in actual use.
4. Payment Terms. For Clients with an open credit account with Empire, payments are due Net 30. For Clients who do not have an open credit account with Empire, payment is due upon delivery of Equipment. Empire may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Equipment, until receipt of payment. If Client fails to pay for Equipment as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay Empire all reasonable attorneys' fees and collection costs incurred by Empire. In addition to any other right of set-off or recoupment Empire has under applicable law, Client agrees that, with respect to any amounts due from Client or Client's affiliates to Empire or Empire's affiliates, Empire and its affiliates may set-off such amounts against any amounts owing to Client or Client's affiliates.
5. Excess Usage Charge. Rental rates are based upon maximum Equipment usage of: one shift of 8 hours per day; or upon 40 hours per week; or upon 160 hours per four weeks. If the Equipment is used longer during any specified period, overtime rental will accrue at the hourly rate of 1/8 of the daily charge (daily rental), 1/40 of the week charge (weekly rental) and 1/160 of the 4 week charge (4 week rental).
6. Written Safety Instructions; Training. Operating instructions and safety manuals will be located inside of the Equipment. If Client is unable to locate operating instructions and safety manuals inside of the Equipment or if Client has any questions or concerns regarding the safe operation of the Equipment, Client must contact Empire immediately. It is the Client's obligation to ensure that individuals operating the Equipment or working in proximity to the Equipment fully understand all safety and operating instructions associated with the Equipment.
7. Disclaimer of Warranties. By receiving the Equipment, Client acknowledges the Equipment to be in good, safe and serviceable condition, and Client accepts the Equipment "AS IS" regardless of defects, latent or otherwise. Empire makes no warranty, express or implied, with respect to the Equipment, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Empire and waived by Client. Client's sole remedy shall be the termination of the rental charges at the time of failure or discovery of defect, provided Client returns the Equipment to Empire's premises within 24 hours.
8. Machine Maintenance and Repairs. During the Rental Period, Client, at its own cost, shall perform all daily lube, fuel and daily maintenance on the Equipment as prescribed in the Original Equipment Manufacturer's Operation and Maintenance Manual (the "OEM Manual"). Empire will perform the required preventative maintenance during the Rental Period as prescribed in the OEM Manual. Upon request, Client will make the Equipment available for Empire to perform such preventative maintenance during Empire's regular business hours. Client is not authorized to incur any expense for the account of Empire.
9. Return of Equipment. Upon expiration of the Rental Term set forth in the Rental Order (unless Empire agrees in writing to an extension) or upon demand from Empire prior to expiration of the Rental Term, Client shall return the Equipment to Empire's premises during Empire's regular business hours. Client shall be liable for all damages to, or loss of, the Equipment occurring because it was not returned within Empire's regular business hours. If the Rental Order for the Equipment states that Empire will pick up the Equipment, Client will be responsible for all loss or damage to the Equipment until Empire actually picks up the Equipment.
10. Damaged Equipment; Reasonable Wear and Tear: If the Equipment is returned in a damaged or excessively worn condition, Client shall pay Empire the reasonable cost of repair and also shall pay rental on the Equipment at the regular rental rate until repairs have been completed. Reasonable wear and tear means only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift (eight hours per day, five days per week) basis. Without limiting the generality of the foregoing statement, the following shall not be deemed reasonable wear and tear: damage resulting from lack of lubrication or failing to maintain necessary oil, water, and air pressure levels; damage resulting from lack of daily inspection and maintenance; and damage resulting from exposure to leach pads, scrap metal operations or other corrosive or harsh environments. Repairs to the Equipment shall be made to the reasonable satisfaction of Empire, and in a manner that will not adversely affect the operation or value of the Equipment as determined by Empire (for example, welding repairs rather than replacing a part will be at Empire's discretion).
11. Tires. Repair and replacement of tires are not included in the rental rate. Client shall pay for any tire damage, regardless of the cause. All tires substituted by Client shall become Empire's property.
A. During the Rental Period, Client must maintain the following insurance:
(i) General Liability Insurance: $1,000,000 per occurrence, $2,000,000 general aggregate.
(ii) Physical Damage Insurance: full value of the Equipment.
(iii) Auto Liability Insurance: if renting a truck licensed for use on public highways, primary business auto liability insurance covering owned, non-owned and hired vehicles with a combined single limit of $1,000,000.
B. Prior to commencement of the Rental Term Client must provide Empire with a certificate of insurance confirming:
(i) Coverage applies to rented Equipment (and, if applicable, to rented on-highway trucks).
(ii) Empire is named as an "additional insured" with respect to general liability insurance and auto liability insurance, if applicable.
(iii) Empire is named as the "loss payee" with respect to physical damage insurance.
(iv) Client's insurance shall be primary, and any insurance coverage maintained by Empire shall be excess and non-contributory.
C. Client agrees to pay for Fire, Theft and Vandalism Protection (described below) until Client submits a compliant insurance certificate. The physical damage insurance requirement shall not apply when Client elects and pays for the Fire, Theft and Vandalism Protection prior to the beginning of the Rental Term, but Fire, Theft and Vandalism Protection is not available for on-highway trucks.
13. Fire, Theft and Vandalism Protection.
A. Fire, Theft and Vandalism Protection ("FTVP") will provide some limited protection from accidental, direct physical loss or damage to rented Equipment if Client elects and pays for FTVP prior to the beginning of the Rental Term. Depending on the type of Equipment, FTVP is available to cover losses of up to $500,000 per accident or occurrence for off-highway construction equipment, with a maximum of $1,000,000 off-highway construction equipment per client. FTVP is not insurance and is not a substitute for any type of insurance. FTVP will not be in effect if Client fails to elect and pay for FTVP prior to the beginning of the Rental Term and to continue to pay the applicable FTVP fees when due.
B. FTVP will not apply to the following, all of which will remain the responsibility of Client:
(i) The first $5,000 or an amount equal to one month's rent, whichever is less (applies to each accident and to each separate piece of Equipment stolen or damaged); (ii) Any amount over $500,000 resulting from a single occurrence or accident, regardless of the number of pieces of Equipment involved; (iii) Damage to motors or other electrical devices caused by a surge in electric current; (iv) Damage to tires and tubes caused by blowouts, bruises, cuts, road hazards, or other causes inherent in the use of the Equipment; (v) Wrongful conversion or infidelity by Client, Client's employees or persons to whom the Equipment is entrusted; (vi) Voluntarily parting with the Equipment by Client or by others to whom the Equipment is entrusted, if induced to do so by any fraudulent scheme, trick or false pretense; (vii) Failure to file a police report immediately following the theft, disappearance or vandalism of the Equipment; (viii) Loss or damage caused by failure to keep the Equipment in a locked enclosure or otherwise secured when not in use; (ix) Loss or damage caused by intentional acts of Client or Client's employees; (x) Loss or damage that was, or should have been, expected due to an extraordinary application or use of the Equipment; (xi) Loss or damage caused by failure to operate and maintain the Equipment in accordance with the OEM Manual, including but not limited to, damage caused by overloading or exceeding the rated capacity of the Equipment; damage resulting from lack of lubrication or other normal servicing of Equipment; damage caused by using inappropriate fuel; (xii) Loss or damage caused by use of the Equipment in violation of these Terms or the Rental Order; or (xiii) Delay, loss of market, loss of use, loss of profit, business interruption or indirect or consequential damages of any kind.
14. Limitation of Liability; Indemnification. In no event shall Empire be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity for any special, incidental, indirect, punitive, exemplary or consequential damages, including but not limited to lost profits, downtime or loss of third party contracts, regardless of whether or not Empire is advised of the possibility of such damages. In addition, Empire's maximum aggregate liability for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to Empire for rental of the Equipment to which such liability relates. Client shall indemnify, defend and hold harmless Empire, its affiliated companies, and their respective owners, officers and employees, for, from and against any and all threatened or actual claims, losses, liabilities, damages, costs or expenses (including attorneys' fees, expert witness fees, costs and expenses) of any nature whatsoever arising out of or related to: the operation, possession, use, failure or maintenance of the Equipment while on rent to the Client; the breach of any provision of these Terms by Client; personal injury, death or property damage or loss of any nature whatsoever arising from or related to the Equipment while on rent to the Client; the negligence or willful misconduct of the Client; any violation by the Client of applicable laws; and claims by Client's employees related to the Equipment.
15. Default. Client is in default if (a) Client fails to pay any installment of rent or other payment to Empire when due; (b) Client fails to return the Equipment at the end of the Rental Term or upon demand; (c) Client fails to perform or observe any condition of this or any other agreement with Empire; (d) Client ceases doing business as a going concern, makes an assignment for the benefit of creditors, files a petition in bankruptcy or consents to or acquiesces in the appointment of a trustee, receiver or liquidator of all or any substantial part of its assets or properties; (e) Client abuses, neglects or attempts to remove, sell, transfer, encumber, part with possession of or sublease the Equipment or any item thereof; or (f) Empire in good faith deems itself insecure.
16. Remedies; Retaking of Equipment. Upon Client's default, Empire reserves all rights and remedies available at law or under contract and may, at its option, demand that Client immediately deliver the Equipment to Empire's premises at Client's expense. If the Equipment is not returned at the end of the Rental Term or for any reason it becomes necessary for Empire to retake the Equipment to protect it from loss or damage, Empire and its agents may, without notice or legal process, enter into any job, building, or place where the Equipment may be and repossess same by using all force necessary to do so. In the event of default, Client waives all rights to a prior judicial hearing, any further right to possession of the Equipment and all claims for injuries, damages or loss arising out of the repossession of the Equipment. Client shall pay all costs and expenses incurred by Empire in retaking the Equipment.
17. Compliance with Laws and Regulations; Hazardous Materials. Client shall not abuse, harm or improperly operate the Equipment. Client, at its sole expense, shall comply with all laws and regulations applying to the use, operation or possession of the Equipment. Client warrants and represents that it shall return the Equipment free from all toxic, hazardous or regulated materials, as those terms may be defined in applicable federal, state and local regulations and laws. Client shall indemnify, defend and hold Empire harmless from any loss, claim or damage which may arise out of Client's breach of these representations and warranties.
18. Additional Client Obligations. At all times, Client shall advise Empire of the exact location and condition of the Equipment and shall give Empire immediate written notice of any lien or judicial process affecting the Equipment. Empire may enter any job, building or place to inspect the Equipment. Client shall furnish Empire with a complete written report of any accident involving the Equipment, including names and addresses of all witnesses and persons involved.
19. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict of law provisions. The parties agree that the exclusive jurisdiction and venue for any proceedings at law or in equity will be in the State or Federal courts located in Maricopa County, Arizona.
20. Privacy Statement. Client consents to the collection, use, retention and disclosure of information by Empire and its parent, subsidiary and affiliated entities (collectively, "Empire Entities") in accordance with Empire's Privacy Statement, which is posted at http://www.empire-cat.com/privacy_policy.aspx (as such statement may be revised from time to time), and agrees that such information may be accessed by the Empire Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
21. Equipment Information. Caterpillar Equipment that is rented by Client may be equipped with Product Link or other equipment monitoring technology, which transmits data concerning the Equipment, its condition and its operation ("Telematics Information") to Caterpillar and its affiliates, Empire and its affiliates, and/or other Caterpillar dealers to better serve Client and to improve Caterpillar products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with the Caterpillar Data Governance Statement, which is posted at http://www.cat.com/en_US/legal-notices/data-governance.html (as such statement may be revised from time to time) ("Statement"). As set forth in the Statement, Caterpillar may use Telematics Information in combination with information about Client. Notwithstanding anything herein to the contrary, transmission of Telematics Information shall not impose upon Empire any obligation to monitor the Equipment while on rent to Client and/or to notify Client of any operational, performance or other issues associated with the Equipment.
22. Miscellaneous. Client may not assign Client's rights or obligations hereunder without Empire's prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party's waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and Empire. Empire is an EEO/Affirmative Action Employer. Client warrants that the Equipment will be used for business or agricultural purposes and not for personal, family or household purposes. Any on-road heavy-duty diesel, alternative-diesel, or off-road diesel vehicle, operated in California, may be subject to the California Air Resources Board In-Use On-Road (Truck and Bus) or In-Use Off-Road Diesel Vehicle Regulations. It therefore could be subject to exhaust retrofit or accelerated turnover requirements to reduce emissions of air pollutants. For more information, please visit the California Air Resources Board websites at http://www.arb.ca.gov/dieseltruck for the Truck and Bus Regulation or http://www.arb.ca.gov/msprog/ordiesel/ordiesel.htm for the Off-Road Regulation.