TERMS AND CONDITIONS OF RENTAL CONTRACT
For good and valuable consideration, you and Lakes Region Equipment Rental LLC, a New Hampshire limited liability company (also referred to herein as “LRER,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” refers to the first page or “face” of this Contract; “Contract” refers to P.1 together with these Terms and Conditions; “Rented Item(s)” or “Item(s)” means the item(s) provided (rented or if specifically set forth on P.1, sold) to you, as identified on P.1 (including any “Instructions” and/or safety devices provided per Section [or “§”] 5 below); “Site” means the address set forth on P.1 where the Item(s) is/are to be delivered and/or used; and “Customer,” “Lessee,” “you” and “your” mean the “Renter,” “Customer,” “Lessee” and/or “Guarantor” (as applicable) identified on P.1.
2. You agree to rent from LRER the Rented Item(s) for the period(s) specified on P.1 (the “Term”), to pay us our stated rental rate(s) (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff, and to remain liable for all loss, theft, injuries and damages of, to, or associated with such Item(s), until all Rented Item(s) is/are returned to and accepted by LRER in the return condition required under this Contract (including § 10). Unless otherwise specifically agreed by LRER, 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), and in accordance with the terms of this Contract. Additional Rent at our highest incremental rate will be charged for late returns and overuse. You will not be entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder to account for time in transit, Act(s) of God, event(s) of force majeure or any other period(s) of nonuse. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). Unless otherwise agreed by LRER in writing, you agree: (a) to pay us: (i) the Estimated Rent specified on P.1 in advance of the Term (the “Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount(s) you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability to us; and (iv) all Prepayments are NON-REFUNDABLE. Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.
3. If we agree to deliver and/or retrieve any Item(s), you agree to: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for delay(s) caused by any acts or omissions of/by you, your agents, employees or contractors, or any other parties, including providers of other equipment or services (“Other Providers”) for which you agree to indemnify, defend, and hold harmless LRER, its agents, employees, and contractors. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives and/or delivery personnel regarding the same (including status, condition, quality, utility, defects, and quantities of or with respect to the Item(s) and the Site).
4. LRER owns and will retain title to Rented Items at all times. You will have exclusive control over the Rented Item(s) during the Term; subject however, to your obligation to fully and timely comply with this Contract. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); (b) have any title or ownership interest in or with respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any Rented Item(s) or this Contract, without our prior written consent (in our sole discretion). LRER may, from time to time, substitute Rented Item(s) and/or sell or assign all or any part of its interests in one or more 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 LRER.
5. Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(s) unless you thereupon 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 us), carefully examined, counted and tested by you or your agent(s); and (b) you: (i) have carefully reviewed and fully understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all EPA, OSHA,
MSHA, ASME, IBC, IFC, IEEE, UL, ASSP, DOT, FMCSA, IFTA, ANSI and other standards, applicable to the
Item(s) (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust, Ventilation, training and familiarization, cleaning, and site assessment requirements ); (iii) have been made aware of the
need to use all applicable personal protective equipment and safety devices (including RESPIRATORY
PROTECTION); (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 that all underground lines, cables and conduits are clearly and properly
marked before using any Item(s) to disturb the ground surface (call 811 and go to www.Call811.org) at least
3 full business days in advance); (vi) will immediately cease using any Item that is damaged, breaks down,
or proves defective (a “Malfunction”); and (vii) will ensure that all others comply with this Contract. You agree
to notify: (A) the police and LRER in the event of any theft or accident involving any Rented Item(s); and (B)
LRER if any of the above requirements is/are breached or incorrect.
6. NO WARRANTIES. LRER IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE ITEM(S),
ALL OF WHICH ARE PROVIDED “AS-IS.” LRER MAKES NO 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 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 LRER, nor does LRER make any warranty against INTERFERENCE OR INFRINGEMENT, all of
which warranties you hereby waive. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS
CONSTITUTE REPRESENTATIONS OR WARRANTIES BY LRER. THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
7. In the event of a Malfunction (as defined in § 5), you will immediately notify, and return the
Malfunctioning Item(s) to, LRER, and provided such Malfunction did not result from or in connection with: (a)
any wrongful or negligent act or omission of/by you or anyone you permit to use or otherwise deal with any
Rented Item; or (b) your breach of any provision of this Contract, LRER will, at its option: (i) repair the
Malfunctioning Item; (ii) provide you with a comparable item; or (iii) solely with respect to the Malfunctioning
Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are
EXCLUSIVE. LRER shall have no other obligation(s) regarding Malfunctions, all of which you waive, together
with all incidental, consequential, special, exemplary, and punitive damages.
8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE SERVICED,
MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR THEIR INTENDED
PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED, AND IF
APPLICABLE, LICENSED, ADULT USERS, OPERATORS AND OCCUPANTS. YOU AGREE TO PROVIDE
ALL APPLICABLE FAMILIARIZATION, TRAINING, INSTRUCTIONS AND WARNINGS TO ALL SUCH
PARTIES, and ensure that each such Item is used, operated and occupied safely and only: (a) for its
intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by LRER at the
Site; (d) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED AND/OR LICENSED ADULTS;
and (e) otherwise in full compliance with this Contract, the Instructions and all applicable warranties and
insurance policies, at all times.
9. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A)
ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS,
THEFT, PROPERTY DAMAGE, 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, INSTALLATION,
CLEANING, 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, LRER, its
respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and
assigns (each, an “Indemnitee”), 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 § 7, (C) WAIVE all rights, remedies and defenses available under the Uniform Commercial
Code, as well as all direct, indirect, incidental, consequential, general, special, exemplary and punitive
damages, against each Indemnitee.
10. You will ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the Item(s),
protect, properly maintain and care for each Item at all times, keep each such Item safely and securely stored
and locked when not in use, and return each such Item to LRER on time at the end of the Term, complete
(with all original batteries, cords, attachments and peripherals), clean and free of contamination (including
asbestos, beryllium, silica and pathogens), and otherwise in good order, condition and repair, properly
serviced and maintained, and if applicable, full of the appropriate fuel, fluids and lubricants. If you fail to do so,
in addition to any other amounts specified on P.1, you will promptly pay to LRER: (a) Rent at our highest
incremental rate(s) 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, WHETHER OR NOT LEGAL) 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 equipment or device(s) in, on or with any
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).
11. You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits
of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full
(new) replacement cost thereof; and (c) workers’ compensation insurance. Such policies shall, whenever
possible: (A) name LRER as an additional insured and loss payee; (B) waive subrogation against us; (C) be
primary and non-contributory; and (D) include a severability of interests clause and such other provisions
(including deductibles) as we may require. You irrevocably appoint LRER as your agent and attorney-in-fact for
purposes of submitting, negotiating, and settling claims on all such policies.
12. If and only if, we have offered and you have purchased and paid for our OPTIONAL LIMITED DAMAGE
WAIVER (“LDW”) (set forth on P.1, if available) prior to commencement of the Term, you will have no liability
to us for 80% of the first $5,000 of repair/replacement costs for Item(s) covered by LDW (“Covered Item(s)”).
You will, however, remain fully liable for: (a) all loss of and damage to: (i) Item(s) not covered by LDW; (ii)
Covered Item(s) lost or damaged as a result of: (A) your breach of this Contract; (B) theft or other failure to
timely return Covered Item(s) to us; (C) gross negligence, misuse and/or abuse of Rented Item(s) (including
without limitation, submerging, overturning and overloading); (D) vandalism and/or malicious mischief; and/or
(E) use of any Item in violation of any law, warranty or insurance policy; (iii) batteries, glass, tires, tubes, wires,
belts, chains, knobs and/or hoses; (b) 20% of the first $5,000 of repair/replacement costs for Covered Item(s);
and (c) all repair and replacement costs exceeding $5,000 in the aggregate across all Covered Item(s). You
may decline LDW if you provide the property damage/inland marine insurance referenced in § 11. LDW IS
NOT INSURANCE, NOR IS IT A WARRANTY.
13. There are no third-party beneficiaries hereto other than the applicable Indemnitees. These Terms and
Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us (except only as we
may otherwise agree). The terms of this Contract are severable. If any provision (t)hereof is deemed invalid or
unenforceable by any court or arbitrator of competent jurisdiction, such provision will be deleted, and the
remainder will be valid and enforceable. This Contract, and any addenda we provide, each of which is
incorporated herein, represent(s) the entire agreement between you and LRER, superseding all other
agreements and representations (including our website and advertising) and cannot otherwise be amended or
extended except in a writing signed by LRER. You agree to pay all taxes (including without limitation, all sales,
use, property, privilege, “Certain Machinery and Equipment,” “Alternate Highway Use,” “Heavy Equipment” and
other taxes), fines, fees, tolls, and other charges related to each Item. If legal action is commenced in
connection herewith, we will be entitled to recover our associated costs and expenses (including without
limitation, attorneys’ fees) from you if we prevail. To the maximum extent permitted under applicable law, you
grant to LRER a lien on all real and personal property: (a) placed in or on; and/or (b) improved with, any
Rented Item(s). We may, without notice or liability to you, monitor and/or inspect, in person and/or
electronically (including via Telematics/GPS systems) Rented Item(s) at any time. You consent thereto and
agree that all information thereby obtained will be LRER’s property. If any performance required of LRER shall
be delayed, impaired or made 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,
subsidence, collapse, riot, war, violence or threat thereof, theft, terrorism, cyber-attack, supplier delay, strike,
shutdown, 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.
You waive all statutes of limitations regarding our rights and remedies. All amounts due 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 authorize us to charge all amounts coming due hereunder to any debit and/or
credit card(s) you provide (up to 150% of the new replacement cost of the Item(s)). You agree to pay us the
maximum lawful charge for any check you write which is returned unpaid. Our maximum liability in connection
with this Contract is limited to the amount(s) actually paid by you and received by us hereunder for the Item(s)
identified on P.1. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies
available herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time is
of the essence. This Contract: (i) is a true operating lease, and not a financing; (ii) is fair and reasonable; and
(iii) shall bind and be enforceable by you, LRER, the other Indemnitees and their respective insurers,
subrogees, successors and permitted assigns. Digital, electronic, photocopied, and facsimiled signatures and
initials appearing on this Contract will be deemed originals.
14. This is a “net” rental. Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to
fully and timely honor, pay, perform or comply with this Contract and/or any of your obligations arising
hereunder or in connection herewith; (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, except to the extent
covered by LDW per §12, damaged, you will be in DEFAULT under this Contract, whereupon, LRER 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 and/or disable any
Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property
damage, including without limitation, any and all damage to crops, flora and/or fauna (for which you will
indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations 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 one or more other rights and/or remedies available in connection (t)herewith, all
of which shall be cumulative.
15. This Contract shall be governed by and enforceable under the laws of New Hampshire. Disputes arising
in connection with this Contract shall, at LRER’s 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
LRER. 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 shall lie
solely and exclusively in the federal, state, and local courts located in or nearest to, Strafford County, NH
(unless waived by LRER). You consent and submit thereto and waive all claims that such venue lies in an
inconvenient forum. YOU HEREBY WAIVE: (A) YOUR RIGHT(S), IF ANY, TO PARTICIPATE IN ANY
CLASS, COLLECTIVE OR OTHER JOINT ACTION AGAINST LRER; AND (B) YOUR RIGHT TO TRIAL BY
JURY.
16. WARNING: Misappropriating, failing to return, concealing, selling, encumbering and/or failing to pay
rent for property of another may subject the offender to CIVIL PENALTIES and/or CRIMINAL PROSECUTION. See New Hampshire Statutes § 637:8, et seq and its/their successor provision(s) for details.