Customer desires to rent equipment (including any parts or accessories thereto) (“Equipment”) from Briggs and/or grant Briggs access to its property and/or retain Briggs to perform repair and maintenance services (“Services”) on its behalf in accordance with the terms of this Agreement; and Briggs desires to rent such Equipment to Customer and/or enter onto Customer’s property and/or perform such Services for Customer. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Condition of Equipment. It is agreed and understood that Customer has specified the Equipment it requires and that upon delivery Customer has carefully inspected the Equipment and all applicable parts, accessories and attachments thereto (“Equipment”). Unless Customer notifies Briggs in writing within three (3) business days of delivery, Customer acknowledges that the Equipment was received in good condition and working order, free from any defects. If at any time during the term hereof, Customer finds that the Equipment is not good repair or working order or in the event of any other concerns with the Equipment, it will notify Briggs immediately. Further Customer agrees that the Equipment will not be used until it is properly repaired or such concern is properly addressed. Customer agrees to operate the Equipment in accordance with the owner’s manual and acknowledges receipt of owner’s manual at time of rental. Customer shall perform daily operational checks of the Equipment as set forth in this Rental Agreement.
2. Location of Equipment. At all times during the Term, the Equipment will be located at the following United States location: . Customer agrees not to remove or permit removal of the Equipment without the prior written consent of Briggs to any other location and Customer further agrees that the Equipment will not be transported or used outside of the United States. Customer shall indemnify Briggs from and be liable for any fines, penalties, costs or expenses resulting from any breach of this Section including transportation of the Equipment back to the location specified in this Section.
3. Use, Repair and Maintenance. Customer agrees to restrict operation and use of the Equipment to Customer’s qualified personnel. Customer agrees to accept full responsibility and liability for any and all loss, damage or destruction to the Equipment, from any cause whatsoever occurring during the Term including the cost to repair such damage or destruction. Customer shall notify Briggs immediately of any and all accidents, incidents, disabilities, failures or the like involving or concerning the Equipment. Briggs will service and maintain the Equipment in proper working condition, and Customer agrees to make it available for servicing by Briggs at reasonable times during Briggs’ business hours. In the event that Customer requires service at times other than during Briggs’ business hours, Customer agrees to pay the difference between the straight time and overtime rate for any labor costs associated with such service time. Customer agrees that Briggs shall not be liable to Customer for loss of use of Equipment while in need of repair or being repaired nor shall Briggs be liable to furnish substitute Equipment for any reason whatsoever. Customer shall indemnify, defend and hold harmless Briggs from any liability resulting from service or maintenance not performed by Briggs. In the event of a total destruction or loss of the Equipment or in the event the cost to repair is in excess of the full replacement value of the Equipment, Customer agrees that it shall pay to Briggs the full replacement value of the Equipment.
4. Fuel. Customer is responsible for all fuel used in the Equipment. All Equipment is delivered with full fuel tanks, and all Equipment is to be returned with full fuel tanks. In the event the Equipment is returned and the fuel tanks are not full, Customer will be charged for the fuel required to fill the tanks at the current price then in effect for appropriate fuel.
5. Rates. The applicable rental rates and fees are set forth herein (“Rates”). It is agreed that the Rates are predicated on Equipment being operated not in excess of eight (8) hours per twenty-four (24)-hour period, forty (40) hours per week, or more than one hundred sixty (160) hours per month. Customer shall be liable for and shall reimburse Briggs for the amounts equal to any use, license or registration fees levied or based upon the rentals, or the Equipment, or the use, or the operation thereof. Customer agrees to pay for excess use at the overtime rate specified or 1/160th of the monthly rental multiplied by 1.5 if an overtime rate has not been specified.
6. Transportation. Customer shall pay and be responsible for pick-up and delivery of the Equipment. Customer shall assume the risk of loss and shall insure the Equipment while in transport. In the event Customer desires to have Briggs pick-up or deliver the Equipment, Customer shall pay the transportation costs related thereto. Briggs is not responsible for any delays in transportation of the Equipment.
7. Payment. Payment shall be made within thirty (30) days of invoice date. Payments not received within thirty (30) days after invoice date shall bear interest at the rate of two percent (2%) per month or the highest legal rate, whichever is less. All rents and other sums of money payable by Customer under the terms of this Agreement shall be due and payable in U.S. dollars at the offices of Briggs in Dallas County, Texas.
8. Term and Termination. Rental charges commence when the Equipment is made available to the Customer at the designated delivery location and ceases when returned and made available to Briggs at the designated pick-up location (as evidenced by the “call-off” confirmation number provided by Briggs upon notification thereof) in good working order and condition, ordinary wear and tear excepted. Unless a specific term is set forth in this Agreement, rental pursuant to this Agreement shall be on a month to month basis. Regardless of the term, either party may terminate the Agreement at any time upon thirty (30) days’ prior written notice to the other party. Customer shall remain liable for rental charges hereunder until any repairs or replacements to the Equipment have been completed. Customer shall notify Briggs within five (5) business days of when Customer wishes to return the Equipment. Upon Customer request, Briggs shall pick up the Equipment within three (3) business days of the date of return specified by Customer. The Equipment will be picked up at the location set forth herein. In the event (a) Customer does not provide a date and time for pick-up; (b) Briggs is unable to locate or access the Equipment, or (c) the Equipment is not at the location set forth herein, the Equipment shall remain on rent and Customer shall be responsible for rental charges until such time as the Equipment is picked up by Briggs or otherwise returned to Briggs. In the event Briggs does not pick up the Equipment as set forth in this Section, rent charges shall abate as of the fourth business day following (a) notification by Customer or (b) the date and time indicated by Customer, whichever is applicable.
9. Default. In the event Customer fails to make any payments due in accordance with the terms and conditions of this Agreement, Briggs may consider this Agreement to be in default and shall have the option to terminate the Agreement immediately upon written notice to Customer. Upon written notification to the Customer of their default, Briggs shall have the right and may, at its option, repossess all items of the Equipment wherever they may be found, provided, however, Customer shall nevertheless remain liable for all sums then due and unpaid through the date of termination, plus a reasonable amount for attorneys’ fees and such other costs or expenses (including transportation costs) as may be expended in the repossession of the Equipment. Customer shall also be considered in default of this Agreement in the event Customer files for bankruptcy, becomes insolvent or otherwise becomes unable to pay its debts as they become due. An event of default under this Agreement shall also be considered an event of default by Customer under any other Agreement that Customer may have with Briggs or any other Agreement that Customer’s parent, subsidiary or affiliate may have with Briggs. The remedies provided herein in favor of Briggs shall not be deemed exclusive but shall be cumulative and shall be in addition to all other remedies in Briggs favor existing at law or in equity.
10. INDEMNITY AND INSURANCE. CUSTOMER HEREBY AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS BRIGGS FROM ANY AND ALL LIABILITY WHATSOEVER AND AGREES TO PAY ALL DAMAGES, LOSSES (INCLUDING THEFT), LIABILITIES AND EXPENSES, INCLUDING ANY ATTORNEYS’ FEES, DEFENSE COSTS AND OTHER EXPENSES, FOR ANY LIABILITY OR DAMAGES, INCLUDING PERSONAL INJURY AND DEATH OR PROPERTY DAMAGE ARISING FROM THE RENTAL, OPERATION, USE, TRANSPORTATION, POSSESSION, STORAGE, OR MAINTENANCE OF THE EQUIPMENT DURING THE TERM OF THIS AGREEMENT OR WHILE THE EQUIPMENT IS IN THE POSSESSION OF CUSTOMER, ITS AGENTS OR REPRESENTATIVES. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS BRIGGS FROM ANY AND ALL SUCH CLAIMS EVEN THOUGH SUCH PERSONAL INJURY, DEATH AND/OR PROPERTY DAMAGE MAY BE ATTRIBUTABLE IN WHOLE, OR IN PART, TO THE ALLEGED NEGLIGENCE, INCLUDING THE SOLE NEGLIGENCE, OF BRIGGS, ITS EMPLOYEES, AGENTS OR CONTRACTORS AND INCLUDING, BUT NOT LIMITED TO CLAIMS THAT BRIGGS FAILED TO WARN OR GIVE INSTRUCTIONS ABOUT THE DESIGN, CONDITION, REPAIR, OR MAINTENANCE OF THE EQUIPMENT OR ITS SUITABILITY FOR THE JOB FOR WHICH IT WAS RENTED OR IMPROPER OR INADEQUATE INSTRUCTIONS OR WARNINGS CONCERNING THE OPERATION, USE, CONDITION, OR SUITABILITY OF THE EQUIPMENT.
Customer shall maintain during the Term of this Agreement and for a period of two (2) years after the termination of this Agreement. Customer shall timely furnish Briggs with certificates of insurance including renewals. The insurance requirements set forth herein shall not be considered a limitation of the Customer’s liability herein. Any and all accidents or incidents involving the Equipment shall be promptly reported to Briggs in writing with full details of the incident.
(i) commercial general liability insurance, including products and completed operations coverage, personal injury and contractual liability coverage, each of such insurance coverages to have bodily injury (including death) limits and property damage limits of not less than one million dollars ($1,000,000). Customer’s policy described in this subparagraph (i) shall be endorsed to (a) name Briggs as an additional insured with the scope of coverage afforded to Briggs equal to that afforded to Customer under such policy; (b) be primary to any and all insurance carried by Briggs; and (c) provide written notice of cancellation in accordance with the policy provisions; and
(ii) property insurance insuring the Equipment for the stipulated loss value set forth herein or, if no such stipulated loss value is indicated, its full replacement value against all risk of physical loss or damage, including theft. Customer shall name Briggs as loss payee on such property insurance.
11. DISCLAIMER OF LIABILITY. NEITHER BRIGGS NOR ITS REPRESENTATIVES SHALL BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY RENTAL OR SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Briggs Title. The Equipment is owned by Briggs and title to the Equipment is with and shall remain with Briggs. This is a contract of rental only, and nothing herein conveys to Customer any right, title or interest in or to any of the Equipment, except as a renter in accordance with the terms and conditions herein. Customer shall keep the Equipment free and clear of, and defend the title of Briggs against, all claims, liens and legal processes. If Customer fails promptly to discharge or remove any such claim, lien or legal process, Briggs may, at its option, discharge the same, advancing any amounts necessary therefore. Customer shall promptly reimburse Briggs for all such amounts with interest at the maximum legal rate. Upon request by Briggs, Customer shall immediately execute and deliver to Briggs UCC-1 forms for recording in the county where the Equipment is located and with the Secretary of State’s office.
13. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile, e-mail or similar writing) and shall be given to the addresses herein.
14. Service Warranty. To the extent this Agreement includes Services by Briggs, Briggs warrants that such Services performed by Briggs will be performed in a good and workmanlike manner. The warranty shall be for a period of ninety (90) days from the date of such Service. Briggs does not warrant results or achievements of Services. BRIGGS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. SPECIFICALLY, BRIGGS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO (A) MERCHANTABILITY, (B) FITNESS FOR ANY PARTICULAR PURPOSE OR USE, (C) WHETHER THE USE OF THE EQUIPMENT SHALL BE UNINTERRUPTED OR ERROR FREE, (D) ARISING BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (E) NONINFRINGEMENT OR (F) TITLE TO SOFTWARE. Customer’s sole and exclusive remedy for nonconforming Services shall be, at Briggs’s option, the replacement or repair of goods or re-performance of Services at no expense to Customer. No repair, replacement or re-performance shall extend any warranty period.
15. NO WARRANTY FOR EQUIPMENT OR GOODS. Briggs agrees to transfer, assign or “pass through” to Customer any transferable warranty made to Briggs by the manufacturer or supplier of the Equipment or any parts or accessories thereto to the extent such is transferable and permitted by law and Briggs further agrees to reasonably assist Customer in the prosecution of claims under said warranty. IT IS UNDERSTOOD BETWEEN THE PARTIES THAT BRIGGS IS NOT THE MANUFACTURER OF THE EQUIPMENT OR THE AGENT OF THE MANUFACTURER OF THE EQUIPMENT, AND THAT BRIGGS MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT. SPECIFICALLY, BRIGGS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO (A) THE MERCHANTABILITY OF THE EQUIPMENT, (B) THE FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE OR USE OF CUSTOMER, (C) WHETHER THE USE OF THE EQUIPMENT SHALL BE UNINTERRUPTED OR ERROR FREE, (D) ARISING BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (E) NONINFRINGEMENT OR (F) TITLE TO SOFTWARE.
16. Miscellaneous: The parties understand and agree that from time to time both parties may obtain or have access to confidential or proprietary information of the other party (“Confidential Information”). The parties agree that they shall keep Confidential Information in confidence and not disclose such to any third party, and shall not use Confidential Information, except for in the performance of this Agreement. Such confidential information shall remain confidential for a period of three (3) years from the date of disclosure. The laws of the State of Texas, without giving effect to its principles with respect to conflict of laws, shall govern the validity, construction and performance of this Agreement. All controversies and claims arising hereunder, and all actions or proceedings shall be brought in a state or federal Court in Dallas county, Texas. The parties hereby waive any objection they may have to jurisdiction and venue in Dallas County, Texas. Costs and reasonable attorneys’ fees shall be awarded to the prevailing party in any action. The parties shall be independent contractors. No employee, agent or other representative of either party shall at any time be deemed to be under the control of the other party. All representations and warranties of the parties, all rights and remedies of the parties and any other provisions hereof which by their express terms or by implication are to survive, shall survive the termination or other expiration of this Agreement. In the event that any one or more of the provisions contained herein, or the application thereof, shall be declared invalid or unenforceable in any respect, the validity of the remaining provisions contained herein shall in no way be affected thereby. The parties will undertake to replace the invalid term or terms with the term or terms that most closely approximate the commercial purpose of the original text. The failure of either party to exercise any of its rights or remedies hereunder shall not act as a waiver of such rights or remedies nor shall such failure excuse the other Party from any of its obligations hereunder. Neither Customer nor Briggs may assign its rights under this Agreement without the non-assigning party’s written approval. This Agreement represents the sole and complete agreement between Customer and Briggs regarding the subject matter contained in this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the subject matter herein. Any change, alteration, or modification to this Agreement must be mutually agreed upon in writing by the respective duly-authorized representatives of both parties. In the event of a conflict, discrepancy or inconsistency between any of the terms of this Agreement and the terms of any attachment hereto or any other document relating to the subject matter herein, the terms of this Agreement shall control.