1. Agreement. The Rental Agreement on the reverse side hereof and the Additional Terms and Conditions – Equipment Rentals set forth below collectively constitute a binding agreement between Lessor and Lessee (the “Agreement”) for the lease by Lessee of the equipment owned by Lessor and described on the reverse side hereof (The “Equipment”). This Agreement shall be effective upon the earlier of Lessee’s signature on this agreement or this Agreement or Lessee’s acceptance of delivery of the Equipment.
2. Trade-In Equipment. When trade-in equipment is not delivered to Lessor until the date of delivery of the Equipment, the trade-in equipment may be reappraised at the time and such reappraisal value shall determine the allowances made for such trade-in equipment. If the reappraised value is less than the ordinal trade-in allowance, Lessee may terminate this agreement or proceed and accept the lower trade-in value: however, this right of termination must be exercised prior to delivery of the Equipment and Lessee’s surrender of the trade-in equipment.
3. Changes in Dealer Price. The rent shall be based upon Lessor’s dealer price in effect on the date of delivery of the Equipment. In the event Lessor’s dealer price is changed prior to delivery, the rent shall be adjusted accordingly. If such price change results in an increase, Lessee many cancel this Agreement by written notice to Lessor immediately on being notified thereof.
4. Limitation of Liability. EXCEPT FOR ANY OBLIGATION TO REPAIR EXPRESSLY PROVIDED IN THIS AGREEMENT, LESSEE WAIVES ALL CLAIMES AGAINST LESSOR. INCLUDING WITHOUT LIMITATION ALL CLAIMES FOR SPECIAL CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE RENTAL MAINTENANCE, USE, OPERATION, STORAGE, ERECTION, DISMANTLING, OR TRANSPORTATION OF THE EQUIPMENT. LESSOR HEREBY DISCLAIMS ALL WARRANTIES INCLUDING MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR A PARTICULAR PURPOSE. LESSOR SHALL NOT BE RESPONSIBLE FOR CONTRIBUTIONS CLAIMES BY LESSEE OR BY THIRD PARTIES FOR ANY REASON WHATEVER. This limitation of liability is made in consideration for a commensurate reduction in rent under this Agreement.
5. Condition of Equipment. LESSEE REPRESENTS THAT IT HAS FULLY INSPECTED THE EQUIPMENT AND THAT BY TAKING DELIVERY OF THE EQUIPMENT WITHOUT WRITTEN NOTICE TO LESSOR OF DEFECTS, THAT LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS IN GOOD CONDITION AND REPAIR.
6.Default interest; Returned Checks. If Lessee fails to make any payment due to Lessor under the Agreement by its due date, Lessee shall pay default interest upon all amounts no p aid when due at the rate provided on the other side of this Agreement, from the date the payment is due until paid in full. Lessee agrees to pay Lessor a returned check processing fee established by Lessor for each check of Lessee’s that is returned to Lessor for insufficient funds or any other reason.
7.Force Majeure. Lessor shall be excused if delivery is delayed or rendered impossible by late delivery from the Equipment manufacturer of carrier, difference with workmen, strikes work stoppages, delays in transportation, inability to obtain labor or materials and also by any cause beyond the reasonable control of Lessor, including but not restricted to acts of God, floods, fire, storms, acts of civil and military authorities, war or insurrections.
8.Use of Equipment; Compliance with Law. Lessee represents that the Equipment will be used only in a prudent manner, only for the purpose for which the Equipment is intended and only by qualified and experience operators. Lessee further agrees: (a) to use the Equipment in compliance with all applicable laws and that Lessee shall be solely responsible for all violations of law arising out of Lessee’s use, possession, or operation of the Equipment; (b) the Equipment shall be used only in accordance with the manufacturer’s instructions and within its rated capacity; and (c) to cause to be performed at Lessee’s expense all normal periodic and other basic services, maintenance, and adjustments to the Equipment.
9. Taxes; No Liens. During the term of this Agreement, Lessee shall pay all sales and use tax, personal property taxes or other taxes due upon the Equipment. Lessee shall not, without the prior written consent of the Lessor; (a) permit any liens and encumbrances, except the security interest of Lessor, upon the Equipment; (b) damage, abuse, misuse, abandon or lose said Equipment or otherwise permit its value to become impaired; (c) part with possession of the Equipment, whether voluntarily or involuntarily; (d) repair or alter (or permit anyone else to repair or alter) the Equipment; € permit the Equipment to become an accession of other goods of fixture; or (f) sell, transfer, or assign any interest in the Agreement or the Equipment. Lessee shall give Lessor immediate notice of any levy attempts upon the Equipment, or if the Equipment becomes liable for seizure from any cause. Lessor shall have the right to inspect the Equipment at all reasonable times to confirm Lessee’s compliance with the terms of this Agreement.
10. Insurance; Notice of Loss. Upon delivery, Lessee shall be responsible for any loss or damage to the Equipment. Lessee shall keep the Equipment insured in not less than the amount of its full replacement value, with an insurer acceptable to Lessor with a policy showing Lessor as sole loss payee and providing that such insurance cannot be canceled or terminated without at least 30 days prior written notice to Lessor. Lessee shall further maintain general liability insurance, naming Lessor as an additional insured, on an occurrence basis insuring against loss, liability or claims made by third parties for property damage, personal injury, or death in a sum not less than $500,000 for any one occurrence. Lessee shall provide Lessor certificates of insurance for such insurance at the time of delivery of the Equipment. Lessee acknowledges that the Equipment is held by Lessee at Lessee’s risk and expense with no abatement in Lessee’s obligation to Lessor under this Agreement on account of loos or damage, from whatever cause. In the event of an accident, loss of or theft of, or damage to the Equipment, Lessee agrees to notify Lessor as soon as possible and to immediately report to Lessor and to the public authorities (where required by law) all necessary information relating to the loss, theft, damage, or accident. Lessee herby assigns (and directs and insurer to pay) to Lessor the proceeds of all such insurance and any premium refund and Lessor may, at its options, apply such proceeds and refunds to any unpaid balance of the obligations.
11. Liability for Damage to Persons and Property; Lessor Indemnified. Lessee assumes the risk of any and all injuries of any kind or nature to persons or property as a result of the use or misuse of the Equipment. LESSEE AGREES TO DEFEND, INDEMNIFY AND HOLD LESSOR, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LOSS, LIABILTY, CLAIM, ACTION OR EXPENSE, INCLUDING REASONABLE ATTORNEYS FEES, BY REASON OF BODILY INJURY, INCLUDING DEATH, AND PROPERTY DAMAGE SUSTAINED BY ANY PERSON OR PERSONS (INCLUDING, BUT NOT LIMITED TO EMPLOYEES OF LESSEE, AS A RESULT OF THE MAINTENANCE, USE POSSESSION, OPERATION, ERECTIONS, DIMANTLING, SERVICE OR TRANSPORTATION OF THE EQUIPMENT, OR LESSEE’S FAILURE TO PAY ALL AMOUNTS DUE OR COMPLY WITH ALL THE TERMS OF THIS AGREEMENT, EVEN IF SUCH LOSS LIABILITY, CLAIM, ACTION OR EXPENSE RESULTS IN ANY PART FROM THE NEGLIENCE OR LESSOR, ITS AGENTS OR EMPLOYEES.
12. Time of Essence; Default. Time is of the essence for payment of all amounts and performance of all obligation due under this Agreement. Lessee shall be in default if any or the following occur (‘Default”) : (a) Lessee fails to pay in full any payment when due; (b) if Lessee breaches any of the other terms of this Agreement; (c) if Lessee becomes insolvent or ceases to do business as a going concern; (d) if a petition in bankruptcy is filed by or against Lessee; (e) if Lessee is in default under any other agreement between Lessee and Lessor; or (f) any representation of Lessee to Lessor was false when made.
13. Remedies. In the event of Lessee’s Default, all payments heretofore made by Lessee shall be retained by Lessor and Lessor may, in Lessor’s sole discretion and without notice or demand to Lessee, exercise one or more of the following remedies; (a) peaceably enter the premises where the Equipment is located and take possession of Equipment, together with any additions to, replacements of, or any proceeds from said Equipment; (b) render the Equipment unusable; (c) require Lessee to assemble the Equipment and make it available at a place designated by Lessor; (d) with or without terminating this Agreement, declare all Lessee’s present and future payments under this Lease to be due and payable (discounted to present value) and recover from Lessee any accrued and unpaid rent, plus default interest, plus the present value of all future rentals and all costs of collection incurred by Lessor, including reasonable attorneys’ fees; € resell the retaken property at public or private sale in accordance with the Uniform Commercial Code or applicable state law; and (f) exercise any other rights and remedies provided by applicable law. Lessee agrees to permit such entry and action by Lessor and hereby waives any right to any hearing or to receive any notice of legal process as a pre-condition for Lessor to recover the Equipment. After deducting reasonable expenses, the remaining proceeds of sales shall be credited upon the amount of indebtedness remaining unpaid hereunder, and Lessee agrees to pay any deficiency upon demand by Lessor, any surplus, however, shall be paid to Lessee. Said retaking or repossession shall not be deemed recission of the contract. The remedies provided for herein are not exclusive but shall be cumulative and in addition to all other remedies provided elsewhere in the Agreement, or existing at law or in equity, one or more of which may be exercised simultaneously or successively.
14. No Other Terms; Modifications and Waivers. Lessee and Lessor agree that this Agreement expresses the sole terms and conditions of Lessee’s purchase of Equipment and supersedes and prior discussion or representations by either party concerning the Equipment. This Agreement may only be modified or waived by a written amendment, signed by Lessor and Lessee. Waiver of any breach or default hereunder shall not constitute a waiver of any other subsequent breach or default. All payments received by Lessor shall be applied at Lessor’s discretion, first to delinquent and accrued interest and then to principal.
15. Title to Equipment; UCC Filings. Lessee acknowledges that title to the Equipment is and at all times shall remain with Lessor. Notwithstanding the foregoing, Lessee agrees to execute and deliver to Lessor to provide public notice or Lessor’s interest in the Equipment on or more Uniform Commercial Code Financing statement and their protective filings upon Lessor’s request and to pay and expenses for such filings.
16. Governing Law; Dispute Resolution. This Agreement shall be governed and construed in accordance with the laws of the State of Wisconsin without regard to its choice of law principles Lessee and lessor agree that all disputes (except for disputes relating solely to Lessee’s failure to make payment to Lessor) shall be arbitrated in Madison, Wisconsin, before the American Arbitration Association, pursuant to it Commercial Arbitration Rules. Lessor and Lessee agree that disputes relating solely to Lessee’s failure to make payment to Lessor shall be heard in the state or federal courts located in the State in which Lessor’s sales office is located. Lessee hereby consents and submits to the personal jurisdiction or such courts for such payment disputes.
17. Severability. Any provision of the contract prohibited by the laws of Wisconsin or the United States, shall be ineffective only to the extent necessary to avoid violating such prohibition without invalidating the remaining portions of the contract.
18. Waiver of Defenses to Payment. Each person comprising Lessee severally waives presentment, demand protest, and notice of nonpayment and all defenses of want of diligence in collection and bringing suit. This contract shall be binding upon and shall insure to the benefit of the parties here to and their respective heirs, personal representatives, successors, and assigns.
19. Equipment Identification; Assignment by Lessor. Lessee agrees to identify that Equipment as Lessor’s property. Lessee further authorizes Lessor to insert the Serial and/or model numbers of the goods set forth on the reverse side hereof for the purposes of identifying said goods. The Lessor may correct patent errors herein. Lessor may assign, mortgage, or transfer any or all of its rights in this Agreement or the Equipment at any time.
20. Representations and Warranties. Lessee represents and warrants that; (a) the persons signing this Agreement as its representatives or agents are authorized to do so; and (b) the Equipment is being rented solely for business or commercial purposes and being rented by Lessee for personal family or household purposes.
21. Notices. All notices required under this Agreement shall be in writing and addressed as shown on the other side of this Agreement. Such notices shall be effective upon personal delivery, or three days placed in the US Certified mail (return receipt requested), postage prepaid and addressed as provided in the Agreement.
22. Rent. Lessee agrees to make all payments due under this Agreement in full, without any set-off deduction, counterclaim whatsoever; provided, however, that such payment shall not prevent Lessee from resolving any dispute it may have with Lessor, in accordance with the dispute resolution provisions of this Agreement. If Lessee continues to use the Equipment beyond the expiration of the end of the term of this Agreement, Lessee shall pay Lessor rent at the daily rental amount for the Equipment until the Equipment is returned to Lessor.
23. Returns of Equipment; Damaged Equipment. Upon termination of this Agreement, Lessee will immediately return the Equipment to Lessor at the location designated, then at Lessor’s rental office or other locations reasonably designated by Lessor, with the returned Equipment in the same good and clean condition it is in when Lessee receives it, ordinary wear expected. Lessee shall pay all costs of such returns. If Lessee returns the Equipment in a damaged or excessively worn conditions, Lessee shall pay to Lessor the greater of the reasonable cost of repair or the loss in value of the Equipment due to such damage or excessive wear.
BUYER ACKNOWLEDGES THAT IT HAS READ AND AGREES TO ALL OF THE FORGOING TERMS OF THIS AGREEMENT.