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This
Agreement, made and entered into between the Lessor and
the Lessee. Whereas, Lessee hereby desires to rent the
equipment listed on a Rental Agreement and on any attachment
thereto upon the terms and condition hereinafter set
forth.
Now, Therefore, for and in consideration of the mutual promises and covenants
between the parties, and other good valuable consideration, the sufficiency and
receipt of which is hereby acknowledged, it is agreed as follows:
1. EQUIPMENT RENTED, PAYMENT AND INSPECTION.
a. Equipment rented, term. Lessor hereby rents to Lessee, the items of equipment
(hereinafter referred to as the "Equipment") listed on the Rental Agreement
and any attachment thereto. Lessee agrees to pay Lessor the daily or weekly rates
reflected on Lessor's current Schedule of Rental Rates, receipt of a copy of
which is hereby acknowledged by Lessee, for each and every day until the Equipment
is returned to Lessor's premises at the Address shown on the Rental Agreement,
commencing on the Rental Start Date shown on the Rental Agreement and running
to the date of return, including Saturday, Sundays and holidays. If said Equipment
is returned after 10:00 o'clock A.M., a full day's rental will be charged for
that day. Lessee agrees to return the Equipment on the Return Date shown on the
Rental Agreement (hereinafter referred to as the "Return Date"). Rental
Rates are subject to change without notice.
b. Payment. Lessor acknowledges receipt from Lessee of payment in advance of
rental, if any, shown on the Rental Agreement. Lessee agrees to pay the remaining
balance of all the rental, taxes, insurance, and all other charges immediately
upon return of the Equipment or on the Return Date, whichever is earlier. Additionally,
if the Return Date is more than two weeks after the Rental Start Date, then Lessee
agrees to pay rent for every two week period following the Rental Start Date
immediately at the end of every two week period until the return of the Equipment.
Lessee's obligation to pay rental charges, tax, insurance and all other charges
will be unconditional without abatement, deduction or set-off.
c. Suitability and inspection by Lessee. Lessee is responsible for determining
what Equipment it needs for its job and inspecting said Equipment prior to delivery
to Lessee, to determine if it is suitable for its needs and in good condition.
Lessee acknowledges it has inspected all Rental Equipment prior to the execution
of the Agreement and found it to be in good condition and suitable for its needs.
Lessor is in no way responsible for any liability, claims, costs or expenses
arising out of the use or possession of the Equipment by Lessee. THE LESSEE REPRESENTS
THAT THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY AND MANUFACTURE SELECTED BY
THE LESSEE AND SUITABLE FOR LESSEE'S INTENDED USE, AND IS IN SATISFACTORY CONDITION
AND GOOD WORKING ORDER. THE LESSOR, NOT BEING THE MANUFACTURER OF THE LEASED
EQUIPMENT NOR MANUFACTURER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER
EXPRESSED OR IMPLIED, AS TO THE FITNESS, DESIGN OR CONDITION OF, OR AS TO THE
QUALITY OR CAPACITY OF THE LEASED EQUIPMENT, NOR ANY WARRANTY THAT THE LEASED
EQUIPMENT WILL SATISFY THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT
WHICH PROVIDES FOR SPECIFIC EQUIPMENT OR SPECIFIC METHODS, IT BEING AGREED THAT
ALL SUCH RISKS, AS BETWEEN THE LESSOR AND THE LESSEE ARE TO BE BORNE BY THE LESSEE
AT ITS SOLE RISK AND EXPENSE. THE LESSEE FURTHER AGREES THAT THE LESSOR HAS NOT
MADE ANY REPRESENTATION, WARRANTY OR COVENANT WITH RESPECT TO THE CONDITION QUALITY,
DURABILITY, SUITABILITY OR MERCHANTABILITY OF THE EQUIPMENT IN ANY RESPECT OR
ANY OTHER REPRESENTATION, WARRANTY OR COVENANT, EXPRESSED OR IMPLIED. THE LESSOR
SHALL NOT BE LIABLE TO LESSEE FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED
TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF
OR DEFICIENCY OR DEFECT THEREIN OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH.
2. LESSEE'S RESPONSIBILITY AND LIABILITIES.
a. Delivery, Safekeeping and Return. The Equipment is rented at the premises
of Lessor. Lessee hereby assumes full responsibility for selecting the mode of
delivery of the Equipment from Lessor's premises to the Lessee, the safekeeping
of the Equipment and keeping the Equipment in a state of good condition and repair,
free from damage of any kind whatsoever, and the safe return of the Equipment
to Lessor no later than the Return Date. All costs of delivery from Lessor to
Lessee shall be borne by Lessee, and if said Equipment is shipped by Lessor to
Lessee, such shipment may be on a collect basis. Lessee shall also select the
mode of transportation for returning the Equipment to Lessor and shall bear all
expenses in connection therewith, including any reasonable charge imposed by
Lessor for cleaning the Equipment. Lessee agrees to assume full responsibility
and liability for the safekeeping and return to Lessor's premises of all items
of Equipment, from the time the Equipment leaves Lessor's premises until it is
returned.
b. Destroyed, Lost or Stolen Equipment. In the event that all or any of the Equipment
is destroyed as a result of any cause whatsoever, lost or stolen, whether in
transit to or from Lessee or while in the actual or constructive possession of
Lessee hereunder, Lessee shall immediately pay to Lessor the replacement value
of such Equipment as determined by Lessor or the actual cost of replacement.
During the period such Equipment is not available for use by either Lessor or
Lessee because of being so destroyed, lost or stolen, the Rental Rate for such
Equipment shall be paid by Lessee to Lessor until it is again available or replaced.
c. Damaged Equipment. Lessee has inspected each and every item of Equipment and
found each such item to be in good condition, free of defects or damage, and
agrees to maintain the same in good condition and repair during the rental period
and until the Equipment is returned to the Lessor. Lessee shall use the Equipment
as it was designed to be used and shall not misuse it. Lessee shall use the Equipment
in a careful and proper manner and shall comply with and conform to all Federal,
State, municipal and other laws or ordinances and regulations in any way relating
to the possession or use of the Equipment. Lessee shall not in any way alter
or modify the Equipment. In the event any item of Equipment is damaged either
in transit or while in the actual or constructive possession hereunder of Lessee,
or its agents or employees, it is hereby agreed that Lessee shall immediately
return such damaged Equipment to Lessor for repair or restoration to its original,
serviceable condition. Lessee shall pay all costs of such repairs or restorations,
and pay to Lessor the Rental Rate on such Equipment during the entire time such
Equipment is being repaired or restored.
d. Normal Wear and Tear. In the event any item of Equipment should break and
become unserviceable during the rental period, Lessor shall be the sole arbitrator
of whether such break resulted from normal wear and tear, and if it did result
from normal wear and tear, then the Rental Rate shall not apply after the date
such Equipment is returned to Lessor's premise. If, on the other hand, Lessor
determines that such breaks resulted from misuse, improper use or any reason
other than normal wear and tear, the Equipment shall be immediately returned
to Lessor. Lessee shall pay the costs of repairs, and the Rental Rate shall continue
until repairs are completed.
e. Indemnity. Lessee represents that it has the necessary skill and experience
to operate equipment provided by Lessor. Lessee agrees to and does hereby indemnify
and hold harmless Lessor from any and all claims, suits, liability, expense,
damage, causes of action or judgments, including attorney's fees, resulting from
injury to or death sustained by any person or persons, including but not limited
to Lessee, any subleases of Lessee, subcontractors and their respective employees,
or damage to property of any kind, including, but not limited to the Equipment,
which injury, death, or damage arises out of or is in any way connected with
the use, operation or possession of the Equipment by anyone during the term of
the Agreement and until the Equipment is returned to Lessor, including, but not
limited to, the failure to repair, maintain or operate the Equipment as required
herein. This indemnity is meant to and does include any such injury, death or
damage arising from any cause whatsoever, including, but not limited to, any
alleged defect in the manufacture and design of the Equipment, and any acts or
omissions, willful misconduct or negligent conduct, of Lessor, whether active
or passive, except this indemnity shall not be applicable to any injury, death
or damage arising from Lessor's sole negligence or sole willful misconduct.
f. Certificate of Insurance. Lessee shall maintain, at its own expense, liability,
fire and extended coverage insurance on the equipment and insurance for such
additional risks and in such amounts as Lessor shall require with carriers acceptable
to Lessor, shall maintain a loss payable endorsement in favor of Lessor and affording
Lessor such additional protection as Lessor shall require. All such insurance
shall name Lessor as an insured party, and the policy shall provide that the
policy may not be canceled or altered without prior written notice to the Lessor,
and the loss payable endorsement shall provide that all amounts payable by reason
of loss or damage to the equipment shall be payable only to Lessor. The Lessee
shall deliver to the Lessor certificates of all such insurance simultaneous with
the execution of the Rental Agreement.
3. INSPECTION BY LESSOR.
During all times the Equipment is in the actual or constructive possession of
Lessee, Lessor, its agents or employees may inspect the Equipment, enter upon
any premises where the Equipment is being stored or used, and if it is found
that the Equipment is being misused, abused or if the Lessee is in default as
to any of the provisions hereof, repossess the Equipment or any part thereof
prior to the expiration of the Rental Agreement.
4. LOCATION.
The Lessee shall not remove any of the Equipment from the Commonwealth of Massachusetts
(or other state in which the Lessee is to use the equipment, as indicated on
the Rental Agreement), without the prior written consent of Lessor. Lessee shall
inform Lessor as to the exact location where the Equipment is being used or stored
during the term of this Agreement.
5. LESSEE'S DEFAULT.
If Lessee shall be in default under any of the terms, covenants and conditions
herein or fail punctually to make any of the payments hereunder, or if any execution
or other writ or process shall be issued in any action or proceeding against
the Lessee whereby the Equipment might become or appear to become in danger of
being seized, taken, or distrained, or if proceedings in bankruptcy, receivership
or insolvency shall be instituted by or against Lessee or his property, or if
Lessee shall enter into any arrangement or composition with his creditors, or
in the event that any judgment is obtained against the Lessee, or in the event
of any dissolution or cessation of business by the Lessee, or if for any other
reason Lessor feels it is insecure, then and in any such event, Lessor shall
have the option of declaring this Agreement terminated, and the Lessor may, without
notice or demand, by process of law or otherwise retake possession of the Equipment
at the expense of Lessee, with or without force, and with or without notice of
intention to retake the same, without being liable to Lessee or any third person,
and Lessee shall hold Lessor harmless and indemnify Lessor against any such claims
or alleged liability to third parties. All of the foregoing remedies are expressly
permitted, consented to and authorized by the Lessee and are in addition to any
other remedies Lessor may have at law or in equity.
6. VALUE OF EQUIPMENT.
Lessee agrees that the value of the Equipment in the event of any loss or damage
during the rental period shall be the replacement cost of the Equipment, or cost
of comparable Equipment in the event such lost or damaged Equipment cannot be
replaced in kind, plus applicable sales or use taxes, and plus applicable freight
charges.
7. SUBLEASES OR ASSIGNMENT.
Lessee shall not sublease the Equipment or assign its interest herein to any
third person or entity, without prior written consent of Lessor, and agrees at
all times during the term of this Agreement to retain the Equipment in Lessee's
exclusive possession, under Lessee's direct control and supervision. This Agreement
is personal to Lessee.
8. TAG OR NAMEPLATE.
Lessee agrees not to permit defacement, obliteration, removal or otherwise cover
or obscure the tag or nameplate or any item of Equipment showing the ownership
of the Equipment or displaying safety instruction. Lessee acknowledges that it
only has right of possession and use of the Equipment pursuant to the terms of
the Rental Agreement and has no option to purchases the equipment or any option
to renew or extend the terms of the Rental Agreement without the written consent
of Lessor. It is further agreed that at all times the title and ownership of
the Equipment shall remain Lessor.
9. TERMINATION BY LESSOR.
Lessor may terminate this Agreement on twenty-four (24) hour notice, either by
mail, personal service, telephone or telegram. Upon such termination, Lessee
shall forthwith return to Lessor's premises at Lessee's risk and expense, the
Equipment in the same condition as it was when first delivered to Lessee.
10. ATTORNEY'S FEES AND JURISDICTION.
In the event any of the payments hereunder become in default, or if Lessee shall
fail to perform any other provision of this Agreement, then it is hereby stipulated
and agreed that Lessor may file legal proceedings in the Superior Court, Suffolk
County, Massachusetts, and serve summons and/or pleadings upon Lessee by US Mail
at the address shown on the Rental Agreement and Lessee hereby consents to said
jurisdiction and submits to said venue. This Agreement shall be governed by the
law of the Commonwealth of Massachusetts. If any provision of this agreement
shall be found to be invalid or unenforceable, the remainder of the provisions
of this agreement shall not be affected thereby, and this agreement shall be
enforced to the maximum extent permitted by law. In the event that Lessor shall
be required to commence any action to enforce any provision of the Rental Agreement,
Lessor shall be entitled to recover its attorney's fees and all other costs and
expenses incurred by Lessor in enforcing the provisions of this Rental Agreement.
11. TAXES
Lessee agrees to reimburse Lessor for any state or local personal property taxes
which might be levied upon the Equipment or use of the Equipment while in the
possession of Lessee.
12. MISCELLANEOUS.
The acceptance of the return of the Equipment shall not constitute a waiver by
Lessor of any claims that it may have against the Lessee, nor a waiver of claims
for latent or patent damage to the Equipment. This Agreement comprises and contains
the entire Agreement and understanding between the parties hereto, including
warranties and representation, if any, and may not be amended or modified except
in writing, signed by both parties. Time is of the essence of this Agreement.
This Agreement and the contents hereof represents the only warranties, express
or implied between the parties, including any implied warranty of merchantability
or fitness for the particular purpose and for any other obligation or liability
on the part of the Lessor. Lessor shall not be liable for any injury, loss or
damage directly or consequently arising out of the use or inability to use the
Equipment, whether used alone or in conjunction with any other equipment. This
agreement shall be binding upon the Lessee and its successors and permitted assigns,
and this agreement shall inure to the benefit of the Lessor and its successors
and assigns.
13. APPLICABILITY.
This Rental Agreement shall not be applicable to Lessor and Lessee where a separate
Lease, other than this Rental Agreement, has been executed by them. |
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