For good and valuable consideration, you and First Place Rental, Inc., an Illinois corporation, (also referred to herein as “First Place,” “FPR,” “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 FPR the Rented Item(s) for the period(s) specified on P.1 (the “Term”), to pay us ourstated 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 FPR in the return condition required under this Contract (including § 13). Unless otherwise specifically agreed by FPR, 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 FPR 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 otheramounts 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. Except with respect to Rented Items FPR rents from one or more third parties (each, a “TPO”) and then rerents to you (“Re-Rented Items”), First Place Rental owns and will retain title to all 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 at all times. 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). First Place 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 FPR or any TPO.
4. 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 First Place, 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).
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, AWP/MEWP, 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 and FALL 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 andthe 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 (See § 6); (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 FPR in the event of any theft or accident involving any Rented Item(s); and (B) FPR if any of the above requirements is/are breached or incorrect.
6. Excavating: You agree to 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.com at least 3 full business days in advance).
7. In the event of a Malfunction (as defined in § 5), you will immediately notify FPR, 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, FPR will, at its sole 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. Neither FPR nor any TPO shall have any other obligation(s) regarding Malfunctions, all of which you waive, together with all incidental and consequential damages.
8. NO WARRANTIES. FPR IS NOT THE MANUFACTURER OR DESIGNER of any of the Item(s), all of which are provided “AS-IS”. NEITHER FPR NOR ANY TPO MAKES ANY 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 DEFECTSAND 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 thedirection of FPR or any TPO, nor does FPR or any TPO make any warranty against INTERFERENCE OR INFRINGEMENT, all of which warranties you hereby waive. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY FPR OR ANY TPO. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
9. SAFETY: POWERED TOOLS AND EQUIPMENT, INCLUDING AERIAL EQUIPMENT, SNOWBLOWERS, CHAINSAWS, AND EQUIPMENT USED FOR LOADING, MOWING, TRIMMING, EDGING, TILLING, LIFTING, CUTTING, GRINDING, CHIPPING, DIGGING, SHREDDING, BREAKING, BORING, AND/OR TOWING CAN BEDANGEROUS 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 occupiedsafely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by FPR at the Site; (d) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED AND/ORLICENSED ADULTS; and (e) otherwise in full compliance with this Contract, the Instructions and all applicable warranties and insurance policies, at all times.
10. 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, FPR, EACH TPO, their 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) WAIVEall 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 and every Indemnitee.
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; (c) workers’ compensation insurance; and (d) for all vehicles and trailers included with or in the Rented Item(s): (i) hired auto liability insurance with minimum limits of $1,000,000; (ii) hired auto physical damage insurance for actual cash value; and (iii) replacement cost contents insurance for all contents thereof. Such policies shall, whenever possible: (A) name FPR 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 FPR 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 paid for our OPTIONAL LIMITED DAMAGE WAIVER (“LDW”)(set forth on P.1, if available) in advance of the Term, you will have no liability to us for 90% of the first $5000 ofrepair/replacement costs for physical damage to Item(s) covered by LDW (“Covered Item(s)”); provided however, that you will, 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 during transportation and/or as a result of: (A) your breach of this Contract; (B) theft or other failure to timely return Covered Item(s) to us; (C) negligence, misuse and/or abuse of Rented Item(s) (including submerging, overturning and overloading); (iii) GPS and telematics systems, data, batteries, keys, glass, tires, tubes, tracks, fittings, belts, chains, knobs, outriggers, stump grinder teeth, and hoses; (b) 10% of the first $5000 of repair/ replacement costs for Covered Item(s); and (c) all repair and replacement costs exceeding $5000 in the aggregate across all Covered Item(s). You may decline LDW if you provide the property/physical damage/inland marine insurance referenced in § 11. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
13. 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 FPR 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 First Place: (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 connectionwith 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, CANNABINOIDS, 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). With respect to rented trailers, you hereby agree to: (a) carefully inspect all coupling mechanisms, safety chains, doors, latches, tires, brakes, taillights and turning signals before each use; (c) secure and protect all contents of, and refrain from overloading such trailers; and (d) refrain from placing in any trailer any illegal, hazardous, explosive, toxic or otherwise potentially dangerous materials or substances. Lessor is not liable for damage to, and you waive all claims arising in connection with, your bumpers or motor vehicle caused by detachable hitches or mirrors.
14. You agree to pay (and with respect to Illinois use tax, reimburse us for) all sales, renting occupation, use and other taxes, tolls, fines, fees, assessments, and other charges related to the Item(s) and/or this Contract. If legal action is commenced in connection herewith, we will be entitled to recover our associated costs and expenses (including attorneys’ fees) from you if we prevail. To the maximum extent permitted under applicable law, you grant FPR a lien on all real and personal property placed in or on and/or 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) any Item(s) at any time. You consent thereto and agree that all information thereby obtainedwill be FPR’s property. If any performance required of us is 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, theft, terrorism, power surge or outage, epidemic, pandemic and governmental and regulatory actions) or other facts or circumstancesbeyond 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 18% per annum. You authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide. 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 anyrights or remedies available in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time is of the essence. There are no third-party beneficiaries hereto other than the applicable Indemnitees. 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 theremainder (t)hereof will remain valid and enforceable. This Contract, and any addenda, Instructions, pictures and/or videos we may provide, each of which is incorporated herein, represent(s) the entire agreement between you and FPR, superseding all other agreements and representations (including our website and advertising) and cannot otherwise be amended or extended except in a writing signed by FPR. 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). 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, FPR, the other Indemnitees and their respective insurers, subrogees, successorsand permitted assigns. Digital, electronic, photocopied, and facsimiled signatures and initials on this Contract will be deemed originals.
15. 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 § 11, damaged, you will be in DEFAULT under this Contract, whereupon, First Place 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.
16. ARBITRATION: This Contract shall be governed by and enforceable under the laws of Illinois. Disputes arising in connection herewith, shall, at FPR’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 First Place. 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 and state courts located in or nearest to the state and county of the FPR location from which you rented your Items (unless waived by FPR). 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 FPR; AND (B) YOURRIGHT TO TRIAL BY JURY. 17. WARNING: Wrongfully obtaining property or the use thereof, available only for hire or failing to timely return such property may be deemed THEFT, RESULTING IN CIVIL LIABILITY AND/OR CRIMINAL PROSECUTION. See 720 ILCS 5/16-1.1, 16-3 and 16A-3(h) and its/their successor provision(s) for details.