This Rental Agreement, together with the EquipmentShare Terms of Use (https://equipmentshare.com/terms), Privacy Policy (https://equipmentshare.com/privacy-policy) and Rental Protection Plan (https://www.equipmentshare.com/rental-protection-plan), and all Rental Confirmation Documents (defined herein) which are hereby incorporated into this Rental Agreement in their entirety (collectively the “Agreement”), is between the renter identified above together with its affiliates and subsidiaries (collectively, “Renter”) and EquipmentShare.com Inc (“EquipmentShare”). This Agreement sets forth the terms and conditions governing Renter’s rental of equipment, including all parts, tools and accessories, from EquipmentShare (collectively the “Equipment”); provided that the Equipment shall not be deemed to include vehicles that will be used by Renter on public highways or byways. Vehicles that will be used on public highways or byways are subject to EquipmentShare’s standard form On-Road Vehicle Rental Agreement. For avoidance of doubt, the parties agree that this Agreement shall govern all future rentals of Equipment by Renter from the date hereof unless it has been superseded or amended by a new rental agreement, or by another writing in accordance with Section 16 below. By entering this Rental Agreement, Renter is representing that Renter has read and agreed to the Terms of Use, Privacy Policy and Rental Protection Plan (if purchased) and understands that their terms are legally binding on Renter.
Rental Period
The Rental Period will begin upon delivery of Equipment to Renter (unless otherwise agreed to) and end at the earlier of when Renter calls or texts EquipmentShare to schedule pickup of the Equipment or 28 days after the beginning of the Rental Period. If Renter has not scheduled the Equipment to be picked up by the end of a given Rental Period, the Rental Period will automatically renew for an additional 28-day Rental Period. Renter may decrease the length of any renewal Rental Period by scheduling pick up of the Equipment prior to the expiration of the Rental Period. EquipmentShare may elect to not renew the Rental Period at any time by notifying Renter prior to the expiration of the current Rental Period. EquipmentShare shall have the right to replace the Equipment with other similar equipment at any time and for any reason.
Billing and Rental Rates
Except for COD customers (as determined by EquipmentShare in its sole discretion), Renter will be billed for all rental and other charges accumulated during the Rental Period at the conclusion of the Rental Period. Payment of the invoice(s) is due by the date indicated on the invoice. This record and the obligations evidenced or secured hereby are subject to the security interest of Wells Fargo Bank, National Association and Citibank, N.A., each as agent for the benefit of certain secured parties and any sale or other disposition violates the rights of Wells Fargo Bank, National Association and Citibank, N.A.
The total charges specified in this Agreement are: (a) estimated based upon Renter’s representation of the estimated Rental Period identified herein (rental rates beyond the estimated Rental Period may change) and other information conveyed by Renter to EquipmentShare; and (b) for the Equipment’s use for One Shift, unless otherwise noted. “One Shift” means not more than 8 hours per day, 40 hours per week and 160 hours every 4-week period. Hours accrued on machines in excess of One Shift will be charged an overage fee assessed at the daily rate of the contract. Rental charges accrue during Saturdays, Sundays and holidays. Rental rates for the Equipment will be set forth in the applicable purchase order confirmation, description of equipment, and/or schedule (each a “Rental Confirmation Document”) issued to Renter in connection with each rental of Equipment pursuant to this Agreement. Renter agrees that it will be bound by and pay the rates set forth in any Rental Confirmation Document unless it notifies EquipmentShare that there is an error in the Rental Confirmation Document within twenty-four (24) hours of such Rental Confirmation Document being sent to Renter’s email address or otherwise delivered to Renter.
Taxes and Other Fees
The rental rates do not include, and Renter is responsible for paying, all sales, use, other applicable taxes, transportation surcharges, any personal property tax surcharges or recovery fees and any other miscellaneous fees and charges that Renter may owe as a consequence of renting the Equipment and using any associated services provided by EquipmentShare including, but not limited to, environmental recovery fees, consumables, licenses, and delivery fees.
Delivery fees will be calculated based on the type of Equipment being delivered or picked up, the requested delivery and pickup time, the distance of the delivery or pickup, and other relevant considerations. Delivery and pickup charges will be negotiated with the Renter prior to the pickup or delivery.
EquipmentShare may assess a surcharge for credit card transactions except in states where surcharges are not allowed.
IN CALIFORNIA ONLY: Renter acknowledges that an estimated personal property tax reimbursement charge will be applied to all rented Equipment at a rate of up to 0.75% of the rental amount. By signing this Agreement, Renter agrees to pay this charge.
T3® Advanced Telematics Service
EquipmentShare has created an advanced telematics service (“T3®”) that collects information from telematics devices on equipment and enables the retrieval of that data through an intuitive and user-friendly interface. All remote access to and use of T3®, including the purchase of platform subscriptions, the use of telematics devices to communicate with the platform, and any associated installation, maintenance, or other professional services, is subject to and governed by the T3® Terms Of Service (“TOS”) available at https://t3.tech/subscription-terms-of-service. A paper or emailed copy of the TOS is available upon request. By ordering, accessing, using, or receiving T3® or any associated devices or professional services, Renter confirms that it has read agrees to be legally bound by the TOS, which supplement this Agreement.
Rental Protection Plan and Prepayment Deposit
Renter must comply with the requirements set forth in Section 6 of this Agreement and provide EquipmentShare with proof of insurance meeting the property insurance coverage requirements specified therein and maintain current proof of insurance on file with EquipmentShare while the Equipment is on-rent. EquipmentShare may require Renter to purchase Rental Protection Plan (“RPP”) coverage during any rental term where Renter has not provided EquipmentShare with proof of current property insurance coverage. Subject to the terms and conditions of the RPP (https://www.equipmentshare.com/rental-protection-plan), if RPP coverage has been purchased, Renter will only be responsible for the first $1,000.00 of any loss, damage, or destruction of the Equipment.
Required Insurance Coverage
Renter will maintain and carry, from the time Renter takes possession of the Equipment or the Equipment is delivered to Renter (whichever is earlier) until the time the Equipment is picked up from Renter by EquipmentShare or otherwise returned to EquipmentShare’s care, custody and control, at Renter’s sole cost and expense, the following insurance:
a) Comprehensive or Commercial Form General Liability Insurance including, but not limited to, coverage for any property damage, bodily injury, personal injury, death, and contractual liability with a minimum limit of liability of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; and
b) Automobile Liability Insurance if Renter will be transporting with their own vehicle or trailer the Equipment on any public highways or byways, including underinsured and uninsured motorist coverage, with a minimum combined single limit of liability of $1,000,000.00 per occurrence for bodily injury, personal injury, death and/or property damage.
Renter will also:
a) Carry Property Insurance with a minimum limit of liability of $100,000.00 per occurrence for damage or losses to Equipment; or
b) If Renter fails to satisfy the requirements set forth in this Section 6, EquipmentShare reserves the right to invoice Renter for the RPP, however, RPP is not insurance and Renter remains responsible for pursuing all claims for liability under this Agreement with its insurer even if no Certificate of Insurance has been provided to EquipmentShare.
All insurance policies described above must contain, or be endorsed to contain, the following provisions:
a) EquipmentShare and its officers, directors, employees, agents, representatives, and assigns are to be covered as additional insureds on the general liability and automobile liability insurance policies and as loss payees on the property insurance policy;
b) The equipment owner and his, her or its officers, directors, employees, agents, representatives, and assigns are to be covered as additional insureds on the general liability and automobile liability insurance policies and as loss payees on the property insurance policy;
c) A waiver of rights of recovery against EquipmentShare and the equipment owner, and their insurers, by the Renter and its insurers as well as a waiver of subrogation against EquipmentShare, equipment owner, and their insurers; and
c) A provision that EquipmentShare must receive at least 30 days written notice prior to any cancellation or change in Renter’s coverage.
Renter shall exercise all rights available under its insurance policies required by this Section 6 and take all actions necessary to process and pursue all insurance claims against those policies in force at the time of the rental and/or loss. EquipmentShare reserves the right to require Renter to submit Certificates of Insurance and/or Letters of Endorsement verifying that Renter holds and carries policies meeting the above criteria and containing the specified endorsements.
Inspection of Equipment and Acceptance
Renter represents and warrants that Renter is capable of and qualified to inspect the Equipment to determine its condition, state of repair, whether it is in good working order, safe to use and suitable for Renter’s intended use. RENTER FURTHER REPRESENTS THAT PRIOR TO TAKING POSSESSION OF THE EQUIPMENT AND BEFORE ATTEMPTING TO USE THE EQUIPMENT (EXCEPT TO THE EXTENT NECESSARY TO PERFORM SUCH INSPECTION) THAT IT HAS INSPECTED THE EQUIPMENT AND FOUND IT TO BE IN GOOD WORKING ORDER AND REPAIR AND FIT FOR RENTER’S INTENDED USE. RENTER WILL BE DEEMED TO HAVE ACCEPTED THE EQUIPMENT AT THE TIME IT TAKES POSSESSION THEREOF, EITHER BY PICKING UP THE EQUIPMENT AT AN EQUIPMENTSHARE RENTAL YARD OR BY DELIVERY OF THE EQUIPMENT TO RENTER’S JOBSITE (“DELIVERY ADDRESS”).
Renter’s Representations, Warranties and Covenants
a. Renter represents and warrants that Renter is qualified to operate the Equipment and has obtained all necessary licenses, certifications, credentials, permits and variances required by the jurisdiction(s) in which Renter will operate the Equipment for operation of the Equipment and Renter’s intended use of the Equipment and has met any other requirements or conditions set by such jurisdiction(s).
b. Renter represents and warrants that only Renter or Renter’s qualified agents or employees operating under Renter’s direct supervision will operate the Equipment and that Renter has verified that every employee and agent who will be operating the Equipment has satisfied all requirements and conditions for operation of the Equipment set by the jurisdiction(s) where the Equipment will be operated including, but not limited to, obtaining any required licenses or certifications.
c. Renter represents and warrants that Renter’s use of the Equipment will be for legal purposes only and that Renter’s use of the Equipment will comply with all applicable federal, state, local and other laws, rules, directives, regulations, ordinances, and requirements. RENTER AGREES TO DEFEND, INDEMNIFY AND HOLD EQUIPMENTSHARE HARMLESS FROM ALL FINES, PENALTIES AND COSTS INCURRED BY EQUIPMENTSHARE FOR RENTER’S FAILURE TO COMPLY.
d. Renter represents and warrants that the Equipment will only be used and stored at the Delivery Address identified in the Rental Confirmation Document, and the Equipment may not be driven or operated on public highways or byways. If at any time during the Rental Period, Renter wants to use or store the Equipment at another location(s), Renter may request permission from EquipmentShare to use or store the Equipment at the additional location(s) by sending an email to info@equipmentshare.com. Renter may not use or store the Equipment at the additional location(s) unless and until Renter receives a confirmation email from EquipmentShare approving the additional location(s).
e. Renter represents and warrants that Renter is familiar with the manufacturer’s specifications for the Equipment as contained in the manufacturer’s operation and maintenance manual or other similar guide or manual, is qualified and able to perform any routine maintenance required or recommended by the manufacturer for the Equipment, and will perform, at Renter’s expenses, any such required or recommended maintenance in the manner and at the intervals specified or recommended by the manufacturer; provided that if Renter’s use of the Equipment exposes the Equipment to environmental factors such as excess dust, cold, heat, etc. that would require more frequent maintenance than is specified or recommended by the manufacturer, Renter shall perform such maintenance at increased intervals necessitated by such use at its sole cost and expense. For the avoidance of doubt, routine maintenance shall not include oil changes, hands-on inspections, or repairs to the Equipment, and those functions shall be performed by a qualified EquipmentShare technician. Renter shall immediately notify EquipmentShare if any such actions are required. Routine maintenance that is the responsibility of Renter shall include, without limitation, daily walk around safety inspections and visible inspections for damages or loose components, greasing all grease points, using proper fuel and DEF fluids, changing air filters and maintaining oil, coolant, and tire pressure levels in accordance with manufacturer recommendations. Renter further represents and warrants that Renter will not (i) make any changes, adjustments or alterations to the Equipment (other than in connection with the performance of Renter’s maintenance requirements set forth above) or (ii) use the Equipment in a manner that is likely to result in anything other than ordinary wear and tear of the Equipment and Renter acknowledges that, except as otherwise provided in this Agreement, Renter will be solely responsible for any damages to the Equipment beyond ordinary wear and tear. Ordinary wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a One Shift basis, unless otherwise agreed. The following shall not be deemed ordinary wear and tear: (1) damage resulting from lack of lubrication, insertion of improper or dyed fuel, or maintenance of necessary oil, water and air pressure levels; (2) any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer's operation and maintenance manual; (3) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rated capacity of the Equipment; (4) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (5) wear resulting from use in excess of shifts for which rented; and (6) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry. Notwithstanding the foregoing, Renter agrees that EquipmentShare will be permitted during the Rental Period to perform inspections, tests, and any necessary repairs or alterations to the Equipment as necessary for EquipmentShare to comply with applicable laws and regulations, and Renter hereby grants to EquipmentShare an irrevocable right to enter the premises where the Equipment is located to perform such inspections, tests, repairs, and/or alterations. Renter shall be liable to EquipmentShare for any losses, damages, costs or expenses, including but not limited to repair costs, related to or arising out of Renter’s failure to perform its maintenance obligations.
f. Renter represents and warrants that if at any time the Equipment is involved in an accident, suffers a malfunction, becomes unsafe, or is damaged Renter shall immediately (i) cease using the Equipment and (ii) notify EquipmentShare. If such condition is the result of a defect in the Equipment, EquipmentShare will, if possible, repair the Equipment or replace the Equipment with similar equipment. Renter’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accrued during the time the Renter was not able to use the Equipment due to the failure or defect. EquipmentShare has no obligation to repair or replace Equipment that was damaged due to negligence, misuse, abuse, or neglect.
g. Renter understands and agrees that Renter is solely responsible for providing, installing and maintaining all grounding and bonding necessary for the safe operation of the Equipment. Renter shall complete all grounding prior to energizing or operating the Equipment and shall ensure compliance with all applicable laws, codes and regulations, including NEC, NFPA 70E, OSHA, and any other requirements of any relevant authority having jurisdiction over Renter in connection with this Agreement.
h. Renter shall not sub-rent the Equipment to any third party without EquipmentShare’s prior written consent (email being sufficient), which EquipmentShare may grant or withhold in its sole discretion. Any such consent shall apply only to the Equipment and the third party identified therein (such third party, “Subrenter”). The following terms shall apply to each subrental consented to by EquipmentShare hereunder:
(i) Notwithstanding EquipmentShare’s consent to a sub-rental, Renter shall remain primarily, fully and unconditionally responsible for the payment and performance of all of its obligations and liabilities under this Agreement, including, without limitation, payment of all rental charges, fees and taxes and responsibility for any Loss (as defined below). EquipmentShare’s consent to a sub-rental shall not release, waive or diminish any such obligation or liability and Renter’s responsibility therefor. Any act or omission of Subrenter or its employees, agents, contractors or invitees shall be deemed an act or omission of Renter for all purposes of this Agreement.
(ii) Subrenter’s right to possession and use of the Equipment is derived from, and is subject and subordinate to, Renter’s right of possession and use of the Equipment under this Agreement, all rights of EquipmentShare hereunder, and the rights of any bank, lender or other secured party holding a lien or other security interest against the Equipment. If the Rental Period expires or is terminated by Renter or EquipmentShare in accordance with the terms of this Agreement, Subrenter’s right to possession and use of the Equipment shall automatically terminate at the same time as Renter’s right of possession and use, without any notice to or action by Subrenter, and Renter shall cause Subrenter to immediately cease using the Equipment and make it available for pickup by EquipmentShare.
(iii) Renter represents and warrants that only qualified agents or employees of Subrenter operating under Subrenter’s direct supervision will operate the Equipment and that Renter has verified that each person who will operate the Equipment has satisfied all requirements and conditions for operation of the Equipment set forth in this Agreement and by the jurisdiction where the Equipment will be operated including, without limitation, obtaining any required licenses or certifications.
(iv) Renter shall use commercially reasonable efforts to cause Subrenter to deliver to EquipmentShare Certificates of Insurance (and, upon EquipmentShare’s request, Letters of Endorsement) evidencing that Subrenter carries insurance that complies with all of the insurance requirements applicable to Renter under this Agreement, including the required coverages, minimum limits and policy provisions and endorsements, with references to Renter in Section 6 of this Agreement read as references to Subrenter. Renter shall cause each Subrenter to maintain such insurance from the time Subrenter takes possession of the Equipment until the time the Equipment is returned to Renter’s or EquipmentShare’s care, custody and control. Subrenter’s insurance coverage shall be in addition to, and not in lieu of, the insurance coverage Renter is required to maintain under this Agreement.
(v) TO THE FULLEST EXTENT PERMITTED BY LAW, RENTER AGREES TO INDEMNIFY, DEFEND AND HOLD EQUIPMENTSHARE AND ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGES OR COSTS (INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY, OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO ANY SUB-RENTAL OF THE EQUIPMENT INCLUDING, WITHOUT LIMITATION: (1) SUBRENTER’S POSSESSION, OPERATION, USE OF THE EQUIPMENT; (2) ANY ACT OR OMISSION OF SUBRENTER OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES; (3) ANY FAILURE BY SUBRENTER TO COMPLY WITH THE TERMS OF THIS AGREEMENT OR TO SURRENDER THE EQUIPMENT; AND (4) ANY CLAIM BY SUBRENTER AGAINST EQUIPMENTSHARE ARISING OUT OF OR RELATED TO THE SUB-RENTAL OR THE TERMINATION OF SUBRENTER’S RIGHTS OF POSSESSION AND USE; PROVIDED, HOWEVER, THAT RENTER SHALL NOT BE OBLIGATED TO INDEMNIFY EQUIPMENTSHARE TO THE EXTENT ANY LOSS, DAMAGE OR LIABILITY IS CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF EQUIPMENTSHARE. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIMITATION OF, RENTER’S OBLIGATIONS UNDER SECTION 9 AND SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THIS AGREEMENT.
(vi) Nothing in this Agreement or EquipmentShare’s consent to a sub-rental shall create any contractual relationship between EquipmentShare and Subrenter or make Subrenter a third-party beneficiary of this Agreement, and EquipmentShare shall have no obligation or liability to Subrenter. Subrenter may not further sub-rent, assign, loan or otherwise transfer the Equipment or any interest therein. All rights of EquipmentShare under this Agreement to inspect, repair, replace and repossess the Equipment may be exercised while the Equipment is in Subrenter’s possession.
(vii) Renter shall ensure that any agreement between Renter and Subrenter is consistent with this Section 8(h) and the rest of the terms and conditions of this Agreement. Renter agrees to furnish a copy of its agreement with Subrenter governing Subrenter’s rental of the Equipment promptly upon EquipmentShare’s request.
Risk of Loss and Indemnification
RENTER SHALL BE RESPONSIBLE FOR ALL LOSSES TO THE EQUIPMENT, UP TO THE FULL REPLACEMENT VALUE OF THE EQUIPMENT, DAMAGE OR INJURY CAUSED BY, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION, POSSESSION OR USE, FROM THE TIME RENTER TAKES POSSESSION OF THE EQUIPMENT OR THE EQUIPMENT IS DELIVERED TO RENTER (WHICHEVER IS EARLIER) UNTIL THE TIME EQUIPMENT IS PICKED UP FROM RENTER BY EQUIPMENTSHARE OR OTHERWISE RETURNED TO EQUIPMENTSHARE’S CARE, CUSTODY, AND CONTROL. RENTER IS RESPONSIBLE FOR ALL DAMAGE INCLUDING TIRES. A CLEANING CHARGE WILL APPLY TO EQUIPMENT RETURNED WITH EXCESSIVE DIRT, CONCRETE, AND/OR PAINT. A FUEL CHARGE WILL BE APPLIED TO ALL UNITS NOT RETURNED FULL OF FUEL. IN NO EVENT SHALL EQUIPMENTSHARE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
A “Loss” is any loss to the Equipment including, but not limited to losses caused by theft, accident, misuse, damage (other than ordinary wear and tear) or destruction of the Equipment. After a Loss occurs, Renter shall immediately: (a) notify EquipmentShare of the Loss; (b) notify the police of the Loss if the Loss is due to theft or other applicable cause(s); (c) secure and maintain the Equipment unless it is not safe to do so; (d) cooperate with EquipmentShare and/or its agents and local law enforcement in investigating the Loss; and (e) in addition to all sums otherwise owed under this Rental Agreement and, except as modified by Renter’s purchase of the Rental Protection Plan, pay EquipmentShare the full cost of repairs for any damages to the Equipment or, if the Equipment is lost, stolen or destroyed, pay to EquipmentShare the full replacement cost of the Equipment.
TO THE FULLEST EXTENT PERMITTED BY LAW, RENTER AGREES TO INDEMNIFY, DEFEND AND HOLD EQUIPMENTSHARE, AND ANY OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY, OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO THE OPERATION, USE, POSSESSION OR RENTAL OF THE EQUIPMENT. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST EQUIPMENTSHARE BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, RENTER SHALL NOT BE OBLIGATED TO INDEMNIFY EQUIPMENTSHARE FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF EQUIPMENTSHARE. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS AGREEMENT, RENTER EXPRESSLY AND SPECIFICALLY AGREES THAT THE FOREGOING OBLIGATION TO INDEMNIFY SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL LIMITATION OF LIABILITY OR IMMUNITY RENTER ENJOYS FROM SUITS BY ITS OWN EMPLOYEES. THE DUTY TO INDEMNIFY WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE AGREEMENT.
Nothing in this Section shall be construed to waive, limit, or otherwise reduce Renter’s liability for any loss, damage, or injury arising out of Renter’s possession, custody, operation and use of the Equipment, including liability to third parties.
Disclaimer of Warranties
EQUIPMENTSHARE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR RENTER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS RENTAL AGREEMENT, EQUIPMENTSHARE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL AGREEMENT.
Default; Governing Law; Venue
Renter shall be in default of this Agreement if Renter fails to pay any rent charges or other charges or fees when due or if Renter breaches any other terms of this Agreement, or if Renter becomes insolvent or ceases to do business as a going concern, or if a petition of bankruptcy is filed by or against Renter. In the event that the Renter is considered in default of this Agreement, EquipmentShare reserves the right to file Mechanic liens and/or claim on any bond, on any and or all Equipment leased, subject to all state and local ordinances in relations to the filing and claim on any lien/bond. All notifications will be sent via certified mail to any applicable party including, but not limited to, a general contractor, property owner, and subcontractors. Any applicable fees, charges and interest due at time of claim are the responsibility of the Renter and shall be included in the total amount owed. All past due accounts are subject to a 1.5% finance charge on all invoices 30 days or more past due, which is an annual percentage rate of 18%. Renter agrees to pay all costs of collections, including attorney’s fees and court costs, whether or not a lawsuit is filed.
Renter also agrees that in the event of Renter’s default EquipmentShare shall have, in addition to all rights and remedies at law or in equity, the right to enter onto the property where the Equipment is being held and to take all actions necessary to repossess the Equipment without legal process or notice. Renter hereby consents to such repossession and waives all claims for damages and losses caused by such repossession and shall pay all costs and expenses incurred by EquipmentShare in repossessing the Equipment. This Agreement is governed by the laws of the State of Missouri, without regard to its conflict of laws principles. Renter and EquipmentShare agree that exclusive jurisdiction and venue for any suit or collection action to enforce the terms of this Agreement shall lie in Boone County, Missouri, and both parties consent to venue and personal jurisdiction in such courts.
Returned Payment
Should a payment on any account be returned by the bank for any reason, there will be a fee imposed by EquipmentShare of $15 to be due immediately, further, any account(s) that have a check returned by the bank shall be immediately suspended from credit terms and placed on a COD payment status for no less than 30 calendar days. Review of said account is subject to approval by EquipmentShare’s Collections Manager.
Credit Accounts
Any and all accounts are subject to suspension from credit at any time at the discretion of EquipmentShare if they become outstanding beyond established and approved credit limits or become delinquent outside of the agreed upon credit terms. Reinstatement of credit terms is at the discretion of EquipmentShare. Should an account be referred to “Collections,” any and all legal fees, attorney fees, and collection fees associated with the collection of the outstanding debt, shall become the sole responsibility of the Renter and subject to any interest accrued per this Agreement.
Assignment
Renter shall not sublease, sub-rent (except as permitted under Section 8.h.), assign, loan, pledge as collateral, or otherwise encumber the Equipment or assign or attempt to assign any interest in the Equipment without prior written authorization from EquipmentShare, and any attempt to do so shall be void. EquipmentShare can freely assign this Agreement and its rights hereunder to affiliates and third parties.
Title and Subordination
Title to the Equipment does not transfer to Renter, and Renter understands and agrees that Renter’s rights to the Equipment pursuant to this Agreement are subordinate to the rights of any bank, lender or other secured party holding a lien or other security interest against the Equipment. Renter shall keep the Equipment free and clear of all mechanics liens and other encumbrances.
Only Agreement; Counterparts
This Agreement along with any subsequent Rental Confirmation Documents represent the entire agreement between Renter and EquipmentShare with respect to Renter’s rental of Equipment from EquipmentShare. Any terms and conditions, whether oral or written, contained in any customer issued purchase order or similar document are rejected by EquipmentShare to the extent they are inconsistent with or different from the terms contained herein. The terms and conditions of this Agreement shall control over any conflicting terms contained in a Rental Confirmation Document, customer purchase order or similar document. This Agreement may only be altered, modified, amended or superseded by a writing signed by authorized representatives of each party hereto.
Renter agrees that, if Renter elects to sign this Agreement using electronic signatures, the electronic signatures, whether digital or encrypted, of the respective signatories hereto are intended to authenticate such signatures and to have the same force and effect as the use and delivery of manual signatures and give rise to a valid, enforceable, and fully effective agreement to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act or any other similar state laws, acts, or statutes based on the Uniform Electronic Transactions Act. Renter may sign this Agreement manually or electronically, and the Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same Agreement.
Waiver & Severability
EquipmentShare’s failure to enforce a provision of this Agreement is not a waiver of its right to do so later. If a provision of this Agreement is found to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
