Rental Terms and Conditions
- Terms of Rental Agreement. Unless otherwise agreed in a written document signed by an authorized representative of North Central Rental & Leasing LLC (“NCRL”), these Rental Terms (“Terms and Conditions”) govern the rental of all equipment (“Equipment”) from NCRL by any individual or entity (“Customer”) that rents Equipment from NCRL, and are incorporated into each Customer’s order for the rental of Equipment (each, a “Rental Agreement”). Any reference to Customer’s rental agreement, purchase order or other Customer documents in connection with Customer’s rental of Equipment from NCRL shall be void and of no effect. Entering into a Rental Agreement with NCRL, or the receipt, acknowledgement or acceptance of Equipment for rental by Customer constitutes Customer’s acceptance of these Terms and Conditions exactly as written. NCRL reserves the right, in its sole discretion, to modify or replace any of these Terms and Conditions at any time, and such modifications or replacements shall apply to all rentals of Equipment from NCRL after the date of such modification or replacement. It is Customer’s responsibility to review the Terms and Conditions each time Customer rents Equipment from NCRL.
- Title to Equipment. Title to the Equipment shall at all times remain with NCRL. Each Rental Agreement is intended to be a true lease, and not a contract of sale or a security agreement. All accessories, parts and replacements which are added to or become attached to the Equipment shall immediately become NCRL’s property and be deemed part of the Equipment and subject to this Agreement. NCRL has the right to file financing statements (UCC-1) for informational purposes. Customer will, at its expense, do any act and execute, acknowledge, deliver, file and record any documents which NCRL deems desirable in its discretion to protect NCRL’s interest in the Equipment.
- Rental Term. NCRL rents the Equipment to Customer for the term commencing on the date the Equipment is picked up by Customer or is delivered to Customer by NCRL and ending on later of (a) the Minimum Rental Term, or (b) the date the Equipment is returned to NCRL and, in either case, when Customer has otherwise complied with these Terms and Conditions and the Equipment is in the condition required herein (the “Rental Term”). Provided, however, the Rental Term can commence prior to the Customer taking possession of the Equipment at the request of the Customer, if so indicated in the Rental Agreement. Notwithstanding anything to the contrary contained in the Rental Agreement or herein, NCRL may, for any reason and upon five (5) days’ notice to Customer, terminate a Rental Agreement and retake possession of the Equipment.
- Rental and Other Charges. Customer shall pay rent for the Equipment for the entire Rental Term at the rate(s) noted in the applicable Rental Agreement, as well as all other charges due in accordance with these Terms and Conditions. Customer shall also pay all sales and use taxes, tax reimbursement or other charges, the cost of any permits, mobile machine licensing and all other fees paid by or on Customer’s behalf by NCRL with respect to the rental of the Equipment. Customer shall be required to pay for any delivery or pickup charges for services provided by NCRL. Customer shall be required to pay for disassembly or assembly of Equipment, if required for transportation purposes. No allowance will be made for weekends, holidays, weather conditions, time in transit or any other period of time during which the Equipment is not being used by Customer. Customer shall not be entitled to abatement or reduction of rent or set-off against rent for any reason whatsoever, unless specifically agreed in writing by NCRL.
- Minimum Rental Guarantee. Customer agrees to the Minimum Rental Term specified in the Rental Agreement. Customer shall be required to pay rent for the Minimum Rental Term even if Customer’s actual usage of the Equipment is less than the Minimum Rental Term.
- Credit for Downtime. If a piece of Equipment cannot be operated for more than 48 hours (Monday thru Friday) due to required repairs not caused by Customer, NCRL will issue credit of 1/5th (Monday through Friday) of the weekly rate or 1/20th of the 4 -week rate, or replace with a similar machine, mutually agreed upon, or will terminate the Rental Agreement and credit accordingly. Holidays, Saturdays and Sundays will be excluded from downtime calculations.
- Excess Usage Charge. Rental rates are based upon maximum Equipment usage of one shift of 8 hours per day, upon 40 hours per week, or upon 160 hours for a 28-day consecutive day period. If the Equipment is used longer during any such specified period, overtime rental for each additional hour used will accrue at the hourly rate of 1/8 of the daily rate, 1/40 of the weekly rate and 1/160 of the 28-day consecutive day period. For seasonal agricultural rentals, excess hour charges will be invoiced at same hourly rate set forth in the Rental Agreement for any hours in excess of the total cumulative hours specified in the Rental Agreement for the predetermined Rental Term. For equipment and attachments not equipped with an electronic hour meter, excess hour charges are not applicable.
- Payment Terms. For Customers with an open credit account with NCRL, payments are due Net 30 from date of invoice. Customers who do not have a credit account established with NCRL will be required to make full payment for the first rental period in advance and provide a form of payment for additional rental periods in advance of the expiration of the then current rental period. NCRL may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Equipment, until receipt of payment. If Customer fails to pay for Equipment as and when due, Customer shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full. NCRL reserves the right to take possession of Equipment from Customer when invoices are past due, unless prior payment arrangements have been made with NCRL.
- Delivery and Acceptance of Equipment. Customer acknowledges that (a) it has inspected the Equipment (or had the opportunity to inspect) prior to delivery, (b) the Equipment is in good condition and repair, and (c) the Equipment is fit for its intended use. If the Equipment is not already in Customer’s possession, Customer’s failure to notify NCRL of any problems or deficiencies in writing within 24 hours of delivery constitutes Customer’s acceptance and acknowledgement that the Equipment is fit for its intended use and has been received in good condition and repair.
- Delays in Delivery. NCRL will use reasonable efforts to deliver or make available the Equipment at the time requested. Customer releases and discharges NCRL from any and all liabilities (including consequential and special damages) which might be caused by NCRL’s failure or inability to deliver or make available any Equipment by any specified time or date.
- Permitted Use and Operation of Equipment. Customer warrants to NCRL that Customer: (a) is familiar with the proper use of the Equipment; (b) will comply with all federal, state or local laws, rules or regulations which may apply to the use of the Equipment, including without limitation, the Occupational Safety and Health Administration Act, Mine Safety and Health Administration rules and regulations, licensing and building code requirements; (c) shall use the Equipment only for commercial purposes in the ordinary course of Customer’s business and not allow the Equipment to be used for any illegal purpose; (d) shall use the Equipment in a safe and careful manner and in accordance with the manufacturer’s operating manuals (receipt of which Customer acknowledges) and within its rated capacity; (e) shall comply with all start up, set up and pre-operational check requirements provided by NCRL to Customer from time to time; (f) shall only allow the Equipment to be operated by Customer’s employees who are properly trained to use the Equipment (including any training recommended by the manufacturer and proper shutdown of Tier 4 engines), have all required licenses (including a CDL license when required), and are not under the influence of drugs or alcohol or otherwise impaired; (g) shall not alter or cover up any decals or insignia on the Equipment; (h) shall make no alterations to the Equipment without NCRL’s prior written consent; and (i) will keep the Equipment at the job site specified in the Rental Agreement or at such other location agreed to in writing by NCRL. The Equipment shall NOT be used or operated to: (w) carry or haul explosives or other hazardous materials; (x) carry persons for hire; (y) transport property for hire, unless Customer obtains all required permits and licenses; or (z) carry persons other than drivers or helpers employed by Customer, who shall ride only within the cab, and then only if such carriage is lawful.
- Safety Instructions. Operating instructions and safety manuals will be supplied with the Equipment. If Customer is unable to locate operating instructions and safety manuals inside of the Equipment or if Customer has any questions or concerns regarding the safe operation of the Equipment, Customer must contact NCRL immediately. Customer shall not remove or cover any operational or safety instructions. It is Customer’s obligation to ensure that all individuals operating the Equipment or working in proximity to the Equipment fully understand all safety and operating instructions associated with the Equipment.
- Training. Customer shall be solely responsible to obtain all training that Customer desires prior to the Equipment’s use and to ensure that individuals operating the Equipment or working in proximity to the Equipment fully understand all safety and operating instructions associated with the Equipment. NCRL is not responsible for providing operator or other training to Customer unless Customer specifically requests such training and NCRL agrees in writing to provide such training.
- Machine Maintenance.
a. Customer’s Obligations: During the Rental Term, Customer shall, at its own cost, perform all daily and weekly inspections, fluid checks, lube, greasing and other basic maintenance per the manufacturer’s operating manuals. Customer shall be responsible for any required replacement of fuel, air or cab filters. Customer shall be responsible for all ground engaging tools (G.E.T.) on the Equipment. GET includes bolt or pin on cutting edges, base edges, router bits, end bits, bucket teeth, protectors, ripper tips, wear plates, and any weld on items such as bucket adapters, cutting edges, complete bucket liners, dozer face liners and wear plates. Only genuine OEM G.E.T. are to be used. Except for the normal, periodic and basic maintenance described in this Section 14.a, Customer shall not permit anyone to service the Equipment other than NCRL or its affiliate, Butler Machinery Company (Butler”).
b. NCRL’s Obligations. NCRL is responsible for all other planned maintenance items on the Equipment, including oil changes and oil filters. Such planned maintenance will be performed by Butler. Customer shall make the Equipment available to NCRL/Butler for such planned scheduled maintenance. All such maintenance will be performed Monday through Friday during Butler’s normal business hours unless prior arrangements are made between the Butler servicing location and the Customer. Additional charges may apply for services performed outside of normal business hours. If the Equipment is located further than 200 miles from the closest Butler location, additional charges for mileage and other expenses will apply. If the Equipment is located outside of Butler’s territorial coverage capabilities for service, NCRL reserves the right to hire another Caterpillar dealer to perform service on the Equipment and additional charges will apply for services performed by such other Caterpillar dealer.
- Equipment Becomes Unsafe or in Disrepair. Customer shall promptly notify NCRL of any failure or disrepair with the Equipment or if the Equipment otherwise becomes unsafe. Customer will immediately discontinue use of the Equipment should it at any time become unsafe or in a state of disrepair and, until such time as NCRL has regained possession, the Customer shall take all steps reasonably necessary to prevent injuries to any person and all property from the Equipment.
- Loss or Damage of Equipment. Until returned to or retrieved by NCRL, Customer holds the Equipment at all times at its sole risk and expense and all loss or damage to the Equipment from any cause whatsoever (“Casualty Loss”), whether or not due to the fault of Customer, (including, without limitation, fire, flood, theft, collision, rollover, acts or omissions of third parties, and Acts of God) is Customer’s sole responsibility. Customer assumes all risk of loss or damage to the Equipment and waives all claims related thereto against NCRL. If there is a Casualty Loss, Customer must immediately notify NCRL, the police, if necessary and Customer’s insurance carriers. Customer must also give NCRL immediate written notice of any lien or judicial process affecting the Equipment.
- Time of Return. Customer’s right to possession of the Equipment ends on the date specified in the applicable Rental Agreement or earlier as provided in these Terms and Conditions. In the event Customer desires to extend the Rental Term beyond the date specified in the Rental Agreement, Customer must notify NCRL prior to the expiration of the Rental Term.
- Return of Equipment. Upon expiration of the Rental Term set forth in the Rental Agreement or upon demand from NCRL prior to expiration of the Rental Term as provided herein, Customer shall return the Equipment to the same store location it was rented from during NCRL’s normal business hours. Customer must return Equipment in the same condition in which it was originally rented, Ordinary Wear and Tear (as defined below) excepted, properly cleaned, and free of all toxic, hazardous or regulated materials (as those terms may be defined in applicable federal, state and local regulations and laws). Customer shall be liable for all damages to, or loss of, the Equipment occurring because it was not returned within NCRL’s normal business hours. If NCRL has agreed to pick up the Equipment, Customer will be responsible for all loss or damage to the Equipment until such time as NCRL takes possession of the Equipment.
- Damaged Equipment; Ordinary Wear and Tear.
a. If the Equipment is returned in a damaged or excessively worn condition, other than Ordinary Wear and Tear, Customer shall pay NCRL the reasonable cost of repair and also shall pay rental on the Equipment at the regular rental rate until repairs have been completed. “Ordinary Wear and Tear” means only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift (eight hours per day, five days per week) basis. Without limiting the generality of the foregoing statement, the following shall not be deemed Ordinary Wear and Tear: damage resulting from lack of lubrication or failing to maintain necessary oil, water, and air pressure levels; damage resulting from lack of daily inspection and maintenance; and damage resulting from exposure to leach pads, scrap metal operations or other corrosive or harsh environments, damage due to overturning, overloading, or exceeding rated capacities, breakage, abuse or improper use. NCRL shall be responsible for repairs needed because of Ordinary Wear and Tear.
b. Repair and replacement of tires are not included in the rental rate. Customer shall pay for any tire damage, regardless of the cause. All tires substituted by Customer shall become NCRL’s property.
c. Additional cleaning charges may apply for excessively dirty Equipment including, but not limited, to Equipment used in agricultural livestock applications, landfill applications, wastewater treatment applications, oilfield applications or other applications that of a corrosive nature that require disassembly of the Equipment to properly remove chemicals or debris present at the time of return.
- Monitoring of Equipment. In the event remote monitoring equipment is installed on the Equipment, Customer acknowledges that data concerning the Equipment, its condition, and its operation may be transmitted to the manufacturer, NCRL and Butler. The information transmitted may include serial number, Equipment location, and operational data, including but not limited to fault codes, emissions data, fuel usage, service meter hours, and installed attachments. Customer agrees to allow this data to be accessed by the manufacturer, NCRL and Butler. Notwithstanding anything herein to the contrary, the ability to conduct remote monitoring shall not impose upon NCRL or Butler any obligation to monitor the Equipment while on rent to Customer and/or to notify Customer of any operational, performance or other issues associated with the Equipment. Indications of improper operation of the equipment received through remote monitoring of the Equipment may result in additional charges.
- CUSTOMER LIABILITY. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH ITS POSSESSION, CUSTODY AND OPERATION OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE PERSONAL INJURY OR DEATH OF ANY PERSON OR THE DAMAGE TO PROPERTY OF CUSTOMER OR ANY THIRD PARTY, WHETHER OR NOT DUE TO THE FAULT OF THE CUSTOMER (an “Incident”) In the event of an Incident, Customer shall (a) immediately notify NCRL, appropriate government authorities if necessary and Customer’s insurance carriers; (b) secure and maintain the Equipment and the surrounding premises in the condition existing at the time of such Incident until NCRL or its agents investigate; (c) immediately submit to NCRL copies of all government authority or other third party reports. NCRL shall have the immediate right, but not obligation, to reclaim any Equipment involved in any Incident.
- Insurance. Unless Customer to elects to be covered by the REP and RLP programs described in Section 24, Customer must obtain and maintain during the entire Rental Period the following insurance: workers’ compensation insurance (in accordance with applicable law); employer’s liability insurance (not less than $1,000,000 per person, per accident); if renting Equipment licensed for use on public highways, automobile liability insurance covering all owned, non-owned and hired vehicles (with a combined single limit of $1,000,000); general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate) including coverage for Customer’s contractual obligations herein; and physical damage insurance (for the full value of the Equipment as set forth in the rental Agreement). Customer’s required policies shall be primary, and any insurance maintained by NCRL shall be excess and non-contributory. Customer must provide an insurance certificate to NCRL evidencing all of the foregoing before commencement of the Rental Term. Customer’s required policies must also be endorsed to include waivers of subrogation, Customer’s general liability and automobile liability policies must be endorsed to name NCRL and Butler as an additional insured, and NCRL must be named as loss payee on the physical damage insurance. The required policies shall provide for NCRL to receive at least 30 days prior written notice of any cancelation or material change. Such endorsements shall be provided to NCRL along with the insurance certificate. NCRL’s standard insurance requirements do not limit or qualify the liabilities, obligations or indemnities of Customer hereunder.
- Failure to Provide Insurance Certificate or Maintain Required Insurance.
a. The Customer will have 72 hours from time of delivery of the Equipment to provide NCRL a valid certificate of insurance as required by Section 22. If Customer fails to provide the required certificate of insurance or maintain the required insurance during the Rental Term, Customer agrees that NCRL may enroll Customer and the Equipment in the “Rental Equipment Protection (“REP”) and Rental Liability Protection (“RLP”) programs described in Section 24 below until such satisfactory insurance coverage that meets the requirements has been obtained and a certificate of insurance has been provided to NCRL. Customer shall automatically be charged 15% of the applicable rental rate for the REP and RLP for the duration of the Rental Term or until a satisfactory certificate of insurance is provided to NCRL. Fees charged for REP and RLP will not be refunded after the 72 hour period to provide a certificate of insurance has elapsed.
b. REP and RLP programs are not available for Equipment that exceeds $500,000.00 in value. Customer must therefore provide the required certificate of insurance for Equipment exceeding $500,000.00 in value prior to delivery of the Equipment.
- REP and RLP Programs
a. REP and RLP programs are available to Customer through a third party vendor, JT Bates as a supplement or alternative to Customer’s required physical damage and liability insurance. Except as set forth in Section 23, the REP and RLP programs are optional. REP AND RLP ARE NOT INSURANCE POLICIES. REP AND RLP ARE LOSS DAMAGE WAIVER PROGRAMS. NCRL reserves the right to deny REP and RLP to Customer.
b. The cost of REP and RLP is 15% of the applicable rental rate.
c. If Customer (i) accepts REP and RLP at the time of entering into a Rental Agreement by so indicating therein, (ii) pays the additional charge when due, and (iii) uses the Equipment in compliance with the Rental Agreement and these Terms and Conditions, NCRL will waive, subject to the exclusions and deductibles set forth below, Customer’s responsibilities to NCRL for loss of or damage to Equipment or liability to third parties to the extent covered by the REP or RLP. NCRL shall not subrogate for perils covered by REP or RLP.
d. REP covers damage to the Equipment up to $500,000 per occurrence and per item of Equipment. In the event of an REP claim, Customer is responsible for a deductible of (i) $1,000 for Equipment valued up to $25,000; or (ii) $2,500 for equipment valued greater than $25,000.
e. REP covers liability claims up to $1,000,000 per occurrence and $2,000,000 aggregate.
f. Customer shall remain liable to NCRL and Butler for all damage, losses or claims not covered REP or RLP. REP and RLP do not cover, among other things, damage, loss or claims caused in whole or part by (i) Customer’s breach of any provision of the Rental Agreement or these Terms and Conditions, (ii) Customer’s failure to return Equipment; (iii) malicious mischief, fraudulent, illegal or criminal acts; (iv) loss of use while Equipment is being repaired; (v) mechanical breakdown; (vi) missing Equipment; (vii) wear and tear; (viii) damage to tires, unless caused by a covered peril.
g. REP AND RLP exclude vehicles licensed for the road while in transit and underground mining. In addition, the following events and conditions are not covered by REP or RLP and Customer will remain liable for all claims, losses or damages caused thereby: (1) use or operation of Equipment, or improper loading, with a load exceeding the rated capacity of Equipment, or improperly securing such load or improper coupling: (2) failure of Customer to perform or pay for all normal periodic and other basic service, adjustments, and lubrication of Equipment; (3) use or operation of Equipment in a manner inconsistent with the Manufacturer’s instructions; (4) loss of or damage to Equipment during periods of riot, strike, or civil commotion: (5) reckless or abusive use or operation of Equipment and/or; (6) striking overhead objects; (7) loss or damage occurring during the loading, unloading, or transportation of Equipment unless such loss or damage (excluding damage caused by the striking of overhead objects, which Customer assumes) occurs as a direct result of a collision with a licensed motor vehicle being operated by a third party and the loading, unloading and transportation was conducted in a lawful manner provided, however, that all loss or damage occurring during the course of waterborne transportation is at Customer’s sole risk; (8) use or operation of Equipment in a hostile or warlike manner in time of peace or war; (9) loss or damage by nuclear reaction, nuclear radiation, or radioactive contamination, all whether controlled or uncontrolled and whether such loss or damage be direct or indirect, proximate or remote, or be in whole or in part caused by, contributed to or aggravated other protected loss or damage; (10) boom damage from overloading of a boom or from a collision involved when the boom is in motion, (11) disappearance of equipment or theft or conversion of equipment not documented by Customer’s prompt filing with the applicable public authorities (with a copy to NCRL) of a formal written theft or conversion report, and any other failure of Customer not to comply with failure to properly secure equipment while on rental or in Customer’s care, custody, and control; or (12) all loss or damage associated with equipment’s upset.
h. The information about the REP and RLP programs contained in these Terms and Conditions is only a general summary of the programs provided by JT Bates. The exact terms and conditions of the REP and RLP programs are set forth in JT Bates program documents, which can be found at https://www.butlermachinery.com/rentals/fully-maintained-rental-contracts/rlp and https://www.butlermachinery.com/rentals/fully-maintained-rental-contracts/rep. In the event of any discrepancy between these Terms and Conditions and the JT Bates program documents, the terms of the JT Bates program documents will control.
- DISCLAIMER OF WARRANTIES. NCRL DOES NOT DESIGN OR MANUFACTURE THE EQUIPMENT. NCRL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS DURABILITY, CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THE EQUIPMENT ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS” AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST NCRL.
- LIMITATION OF LIABILITY. IN CONSIDERATION OF THE RENTAL OF THE EQUIPMENT, NCRL’S MAXIMUM LIABILITY UNDER OR IN CONNECTION WITH ANY RENTAL AGREEMENT, INCLUDING ANY LIABILITY ARISING FROM NCRL’S OR ANY THIRD PARTY’S COMPARATIVE, CONCURRENT, CONTRIBUTORY, PASSIVE OR ACTIVE NEGLIGENCE OR THAT ARISES AS A RESULT OF ANY STRICT OR ABSOLUTE LIABILITY, SHALL BE LIMITED TO THE RENTAL CHARGES ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE RENTAL AGREEMENT. CUSTOMER AGREES THAT REPAIR OR REPLACEMENT OF THE EQUIPMENT IS CUSTOMER’S EXCLUSIVE REMEDY FOR NCRL’S BREACH OF THIS AGREEMENT. IN NO EVENT SHALL NCRL BE RESPONSIBLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE, INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, CAUSED BY, RESULTING FROM OR IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION OR ITS USE, NCRL’S LATE DELIVERY, OR NCRL’S FAILURE TO REPAIR OR REPLACE NON-WORKING EQUIPMENT.
- RELEASE AND INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, HOLDS NCRL AND BUTLER HARMLESS AND AT NCRL OR BUTLER’S REQUEST, SHALL DEFEND NCRL, BUTLER AND THEIR OWNERS, OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, AFFILIATED AND RELATED COMPANIES, (WITH COUNSEL APPROVED BY NCRL AND BUTLER), FROM AND AGAINST ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES) HOWEVER ARISING OR INCURRED, RELATED TO ANY INCIDENT, ANY DAMAGE TO PROPERTY, INJURY TO, OR DEATH OF, ANY PERSON OR ANY CONTAMINATION OR ALLEGED CONTAMINATION, OR VIOLATION OF LAW OR REGULATION CAUSED BY OR CONNECTED WITH (i) THE USE, OPERATION, STORAGE, TRANSPORTIATION, POSSESSION OR CONTROL OF THE EQUIPMENT DURING THE RENTAL PERIOD OR (ii) BREACH OF THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OF WILLFUL MISCONDUCT OF ANY PARTY INDEMNIFIED HEREIN. CUSTOMER’S INDEMNITY OBLIGATIONS SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. IF ANY PART OF THIS SECTION IS DETERMINED INVALID BY A COURT OF COMPETENT JURISDICTION, CUSTOMER AGREES THAT THIS CLAUSE SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
- Default. Customer is in default if: (a) Customer fails to pay any rental or other charges when due; (b) Customer fails to return the Equipment at the end of the Rental Term or upon demand as provided herein; (c) Customer fails to comply, observe or perform any obligations required by a Rental Agreement, these Terms and Conditions, or of any other agreement with NCRL; (d) Customer or any guarantor provide any incorrect or misleading information to NCRL; (e) the Equipment, in NCRL’s opinion, is being damaged in excess of ordinary wear and tear due to improper use or failure to properly maintain the Equipment; (f) Customer or any guarantor of this Agreement ceases doing business as a going concern, makes an assignment for the benefit of creditors, or becomes insolvent; (g) there is filed by or against Customer or any guarantor a proceeding in bankruptcy, or of reorganization, receivership, insolvency, liquidation, dissolution or similar relief; (h) a trustee, receiver, or liquidator is appointed for Customer or any guarantor of this Agreement, or of all or any substantial part of their assets or properties; (i) Customer attempts to remove, sell, transfer, encumber, part with possession or sublet the Equipment; (j) there is a levy, attachment or seizure of the Equipment, or any loss, theft, substantial damage, or destruction of the Equipment, or any material impairment of its value, other than Ordinary Wear and Tear; (k) NCRL determines, in its sole discretion, that any material adverse change has occurred in Customer’s financial condition; (l) any individual guarantor dies; or (m) NCRL in good faith deems itself insecure.
- Remedies. If a default occurs, NCRL has the right to exercise any one or more of the following remedies: (a) terminate the Rental Agreement and all of Customer’s rights thereunder with respect to the Equipment; (b) require that Customer immediately return the Equipment to NCRL’s premises at Customer’s expense; (c) retake possession of the Equipment, with or without demand or notice to Customer and as permitted by applicable law; (d) enter the premises where the Equipment is located, as permitted by applicable law, and render it inoperable or remove it; (e) take legal action to recover possession of the Equipment or (f) exercise any other rights and remedies pursuant to these Terms and Conditions or available under applicable law. In the event of default, Customer waives all rights to a prior judicial hearing, any further right to possession of the Equipment and all claims for injuries, damages or loss arising out of the repossession of the Equipment.
- Access and Inspection. NCRL may at all reasonable times enter upon any job site, building or place where the Equipment is located to inspect the Equipment and if, in NCRL’s opinion, Customer is using the Equipment inconsistent with its capacity or design, or otherwise improperly using, maintaining, or operating the Equipment, NCRL may immediately take possession of the Equipment without notice to Customer. Customer agrees to advise NCRL of the exact location and condition of the Equipment whenever requested by NCRL.
- Compliance with Export and Import Laws. Customer agrees that removal of the Equipment from the United States (“U.S.”) is prohibited under this Agreement. If Customer desires or causes the transport and/or operation of the Equipment outside of the U.S., Customer must (a) notify NCRL prior to taking such action, and (b) execute an amendment to this Agreement, which amendment is incorporated herein, and (c) obtain NCRL’s consent. Although prohibited under this Agreement, if Customer exports or re-exports the Equipment, Customer agrees that the Equipment is subject to and must comply with U.S. export control laws and regulations, including but not limited to the Export Administration Regulations. Customer further agrees that it is responsible for: (a) determining whether and obtaining, if necessary, export or re-export licenses or other authorizations as required prior to exporting or re-exporting the Equipment, (b) obtaining any required documentation necessary for return of the Equipment, and (c) ensuring no unauthorized transfers or diversions of the Equipment occur.
- Requirements Applicable to Rental of On-Highway Equipment. The provisions of this Section 32 apply to all rentals of Equipment that are authorized or used for operation on public roadways (“On-Highway Equipment”). Upon rental of On-Highway Equipment by Customer, Customer shall have complete control and supervision of the On-Highway Equipment (unless otherwise in the care, custody and control of NCRL). Customer represents and warrants that, at all times such On-Highway Equipment is in Customer’s care, custody or control, such On-Highway Equipment shall be operated only under the USDOT number and operating authority of Customer (i.e., Customer may not allow a third-party to transport such On-Highway Equipment without the written consent of NCRL). Further, Customer shall comply with the Federal Motor Carrier Safety Administration (“FMCSA”) requirements set forth in 49 CFR 376.11(c) pertaining to the proper identification and marking of the On-Highway Equipment upon taking possession and prior to operating any On-Highway Equipment. Before giving up possession of the On-Highway Equipment, Customer shall remove all identification showing it as the operating carrier. If Customer provides drivers, such drivers must be qualified under and meet all applicable federal, state and local laws and regulations, including but not limited to a valid CDL in good standing. The Rental Agreement shall constitute the receipt evidencing the transfer of possession of On-Highway Equipment as set forth in 49 CFR 376.11(b). The Rental Agreement shall be carried in the On-Highway Equipment by Customer during the entire Rental Term. NCRL agrees to cooperate with all federal, state and local law enforcement officials nationwide to provide the identity of any Customer who operates the On-Highway Equipment.
Customer will provide persons to manage and/or operate the On-Highway Equipment. Such persons are under the sole control and direction of Customer and are not acting in the capacity of independent contractors or employees of NCRL.
a. Assignment. NCRL may assign this Agreement without the consent of Customer. Customer shall not be entitled to assign to any other party all or any part of this Agreement, its obligations hereunder, or any other interest herein or any rights hereunder, without first obtaining NCRL’s written consent.
b. Entire Agreement. The Rental Agreement and these Terms and Conditions together constitute the entire agreement between the parties and may not be amended or modified by any previous negotiations or agreements between the parties. No subsequent amendment or modification hereof shall be effective unless in writing and signed by the party against which it is sought to be enforced. Customer further agrees that the Terms and Conditions shall govern all future deliveries should Customer fail or be unable to sign a rental agreement at time of delivery.
c. Survival. Customer’s obligations hereunder shall survive the termination of any Rental Agreement.
d. Waiver. Any failure by NCRL to insist upon strict performance of any provision of a Rental Agreement or these Terms and Conditions shall not be construed as a waiver of the right to demand strict performance in the future.
e. Severability. If any part of a Rental Agreement or these Terms and Conditions are held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
f. Headings. The headings used herein are for convenience only and shall not be read or construed as limiting the substance or generality of any sections of these Terms and Conditions.
g. Authority. Customer and the person signing the Rental Agreement represent that: (i) they both have full authority to execute, deliver and perform this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable in accordance with its terms.
h. Notices. Al notices, demands, requests, consents or approvals required under a Rental Agreement or these Terms and Conditions shall be in writing and shall be deemed duly given if delivered personally or mailed, by first class or certified mail, return receipt requested, to the respective addresses of the parties set forth in the applicable Rental Agreement or any other address designated by a party by written notice.
i. Legal and Other Fees. If NCRL or Butler retains an attorney to represent it and enforce its rights and remedies under a Rental Agreement or these Terms and Conditions, regardless of whether NCRL or Butler actually commences a legal action, NCRL and Butler shall be entitled to recover from Customer all reasonable attorney’s fees and all other legal expenses (including for expert and other witnesses), and Equipment recovery costs paid or incurred by NCRL or Butler, including those incurred in any bankruptcy proceeding involving Customer.
j. Governing Law; Forum Selection. All Rental Agreements and these Terms and Conditions shall be governed by the laws of the State of North Dakota. All litigation arising under a Rental Agreement or these Terms and Conditions shall be brought only in the courts of the State of North Dakota for Cass County, or the courts of the United States which are situated in the State of North Dakota, and the parties consent to and confer personal jurisdiction upon said courts and expressly waive any objections as to venue in any such courts.
k. Jury Trial Waiver. To the extent permitted by law, in any action to enforce or interpret a Rental Agreement or these Terms and Conditions, the parties hereby knowingly, voluntarily and intentionally waive any right to a trial by jury, this waiver being a material inducement to entering into this agreement.
l. Counterparts/Execution. Rental Agreements may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Rental Agreements may be signed by facsimile, PDF or other electronic means and such signatures shall be as binding on the party providing the same as original signatures.