HUCKLEBERRY FARMS EQUIPMENT RENTAL LLC
EQUIPMENT RENTAL AGREEMENT
TERMS AND CONDITIONS
For purposes of these Terms and Conditions, “Lessor” or "Company" means Huckleberry Farms Equipment Rental LLC, its owners, officers, and employees; and “Lessee” or "Customer" means the customer that is leasing the equipment identified on the first page (the "Equipment"), including Customer’s agents or employees.
1. Title to Equipment; location of use. This is a lease, and no sale is hereby made or intended. Title to and ownership of the Equipment shall always remain in Lessor. Lessee agrees to place the Equipment in operation at the location described on this Agreement and not to remove the Equipment from that location without Lessor’s advance written permission.
2. Agreement term; no abatement of rent. The lease term shall commence on and include the date and time of pickup of the Equipment from Lessor's premises and shall terminate on the scheduled date and time of return of Equipment by Lessee at Lessor's premises. Failure by Lessee to return Equipment at the agreed upon date and time shall result in the automatic renewal of the term based on the same duration and rates as the original term ("Reneal Term") and Lessee hereby authorizes Lessor to charge Lessee's credit card on file for any Renewal Terms.
3. Acceptance of Equipment by Lessee. Lessee agrees to inspect the Equipment before use and unless Lessee identifies any claimed nonconformity or other objection on the "Condition Upon Check Out:" box on the front page before use and, the Equipment shall be deemed to be conforming and in good condition and repair and shall be deemed accepted by Lessee.
4. Indemnity of Lessor by Lessee. Lessee agrees to indemnify, protect and hold harmless Lessor from and against any and all loss, damage, expense (including attorneys’ fees), penalty, claim, action or cause of action Lessor may suffer or incur or have made or filed against it on account of any death or injury to person or damage to property of any character whatsoever occasioned directly or indirectly by the operation, handling, or transportation of any of the Equipment during the lease term while the Equipment is in the actual or constructive possession, or under the custody and control, of Lessee. Lessee also agrees to indemnify Lessor against taxes and other charges assessed to Lessor on, or in relation to, any or all the Equipment leased hereunder or the ownership or use thereof, referable to the lease term. This agreement of indemnity shall survive termination or cancellation of this Agreement.
5. Disclaimer of warranties and limitation of liability. Lessee understands and agrees that Lessor is not the manufacturer of the Equipment leased hereunder. Lessor makes no warranty against patent or latent defects in material, workmanship or capacity of the Equipment and no warranty that the Equipment will satisfy the requirements of any law, rule, specification, or contract which provides for specific machinery or apparatus or specific methods of operation. Except for any express warranty set forth hereon in writing (if any), Lessor hereby disclaims, and Lessee hereby waives, all warranties express or implied, including warranties of merchantability and fitness for any particular purpose with respect to the Equipment. Lessor shall not be liable to Lessee for any loss, delay or damage of any kind or character resulting from defects in, or breakdowns or insufficiencies of, the Equipment leased hereunder. Lessor’s liability, if any, to Lessee for any claim or cause of action under or related to this Agreement shall be limited in any event to the amount of rent paid hereunder to Lessor by Lessee. No oral agreement, guaranty, promise, condition, representation, or warranty shall be binding on Lessor. All prior conversations, agreements or representations related hereto and/or to the Equipment are integrated in this Agreement. Lessee acknowledges that, whether described as new, used, or demonstrator, the Equipment may have been used previously, incurred damage that was repaired or repainted, or may have been modified in accordance with a manufacturer’s directive or program. Lessee agrees to such repairs, repainting, and/or modifications and waives any notice or disclosure thereof. Lessee hires the Equipment on an “AS IS” basis.
6. Assumption of Risk; risk of loss; insurance. Customer is fully aware and acknowledges there is a risk of injury or damage arising out of the use or the operation of Equipment. Upon pickup of Equipment by Lessee to Customer, Customer shall bear the entire risk of loss, damage, theft, or destruction of the Equipment or any part thereof, from any and every cause whatsoever, which shall occur prior to the proper return of the Equipment, and no such loss, damage, theft, or destruction shall relieve Customer of its obligation to pay Rent or to comply with any other provision of this Agreement.
7. Rental Equipment Protection. If the Equipment is used in compliance with the Rental Agreement, if Customer accepts the "Rental Equipment Protection" option ("REP"), which is NOT INSURANCE, at the beginning of the rental period by initialing the REP “Accepts” box on the front of the Equipmet Rental Agreement, and if Customer pays the additional charges for the REP when due, then Lessor agrees to waive, to the extent specified herein, Customer’s responsibility to Lessor for loss of or damage to the Equipment.
NOTWITHSTANDING THE FOREGOING, CUSTOMER WILL BE LIABLE FOR ALL LOSS OR DAMAGE TO THE EQUIPMENT AND EXPENSE OF LESSOR RESULTING (A) FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER, WHICH INCLUDES, BUT IS NOT LIMITED TO, THE USE OR OPERATION OF THE EQUIPMENT IN A RECKLESS OR ABUSIVE MANNER, OR INTENTIONAL DAMAGE TO THE EQUIPMENT BY CUSTOMER OR WITH CUSTOMER’S KNOWLEDGE, OR (B) UNDER ANY OF THE FOLLOWING CIRCUMSTANCES (“Non-Covered Events”): (1) Use in violation of the applicable manufacturer instruction manual, including overloading or exceeding the rated capacity of the Equipment; (2) Damage to motors or other electrical devices caused by surges in electrical current or use of the wrong voltage: (3) Failure of Customer to perform, or the improper performance of, basic
maintenance of Equipment required under the Agreement: (4) Tire or tube damage; (5) Use of Equipment in violation of any term of the Agreement; (6) Using improper fuel such as straight gas in diesel motors, diesel fuel in gas motors, fuel in hydraulic oil, etc.; (7) Conversion or hiding of Equipment by Customer or its employees or agents, or infidelity of Customer’s employees or other persons to whom the Equipment is entrusted; (8) Vandalism, sabotage, criminal or intentional acts, or abuse by Customer or its employees or agents; (9) Customer’s failure to discontinue use of Equipment after the rental period ends or keep the Equipment in a secure area; (10) Use by any person other than an employee of Customer possessing all necessary qualifications and permits; (11) War or acts of war (declared or undeclared), riots, terrorism, nuclear explosion, or radiation; (12) Overspray of concrete, paint or other material. If charges for the REP are not paid by Customer as specified in the Agreement, then at Lessor’s option and discretion, (a) Lessor may terminate the Agreement without prejudice to any of its other remedies; and (b) pending exercise of Lessor’s option, or if Lessor’s option is not exercised, the REP will not be in effect regardless of any initialing of the "Accepts" Box and Customer will remain fully responsible for any loss and damage to the Equipment. In the event of any loss or damage to the Equipment, Lessor will, at its option, subrogate with respect to any rights of Customer to recover against any person or entity.
8. Lessor’s right to inspect. Lessor shall, at all times during normal business hours, have the right, but not the duty, to enter upon the premises where the Equipment is located for the purpose of inspecting the Equipment or observing its use.
9. Operators; compliance with laws. Lessee agrees to permit the Equipment to be operated only by properly trained operators and to comply with and conform to all municipal, state, and federal laws relating to operation of the Equipment. No operators of the Equipment are furnished by Lessor directly or indirectly.
10. Default. Lessee will be in default under this Agreement (a) if Lessee shall fail to pay any rent or other charges under this Agreement exactly when due or (b) if Lessee shall fail to perform any term or condition of this Agreement.
11. Lessor’s remedies for Lessee’s default. Time is of the essence. If Lessee is in default, then in any such event Lessor may, at its option (1) proceed by appropriate court action(s) either at law or in equity to enforce performance by Lessee of the applicable covenants and terms of this Agreement or recover damages for the breach thereof or recover possession of the Equipment, and in addition shall recover (in either event) any expenses (including reasonable attorneys’ fees) incurred by Lessor in connection with Lessee’s default hereunder; or (2) without terminating this Agreement, enter upon any premises where the Equipment is located and take possession of the Equipment
12. Assignment. Without the prior written consent of Lessor, Lessee shall not assign, transfer, or pledge this Agreement, the Equipment, or any part thereof, or any interest therein, or sublet or lend the Equipment or any part thereof. If Lessor assigns the rents reserved herein or any of Lessor’s other rights hereunder, Lessee agrees not to assert against any assignee any claim or defense Lessee may have against Lessor. Lessee, upon receiving notice of such assignment, shall abide thereby and shall make payments as therein directed. Following such assignment, the term “Lessor” shall be deemed to include and refer to Lessor’s assignee.
13. Waivers; remedies cumulative; section headings. No delay or omission to exercise any right, power or remedy by Lessor upon any breach or default by Lessee under this Agreement shall impair any such right, power or remedy or be construed as a waiver of any such breach or default, or of any similar breach or default thereafter occurring. All waivers under this Agreement must be in writing signed by Lessor. All remedies afforded to Lessor by law shall be cumulative and not alternative. The section headings in this Agreement are for convenience only and do not add to or take from the provisions of the Agreement.
14. Notices. Any notices under this Agreement shall be sufficiently given when communicated by email or text to Lessee's contact information on file.
15. Entire agreement; severability. The Equipment Rental Agreement and these Terms and Conditions (the "Agreement") constitute the entire understanding of the parties hereto and shall not be altered or amended except in writing signed by the parties hereto or their successors or assigns, or as otherwise provided in section 17 below.
16. Effectiveness of Agreement. This Agreement will be effective upon execution or acceptance by Lessee which may
be evidenced by Lessor’s delivering the Equipment to Lessee or at Lessee’s direction or special ordering
the Equipment for Lessee.
17. Governing Law. This Agreement shall be governed by the laws of the State of Utah, without giving effect to Utah’s choice of law rules or principles. In the event any suit is brought arising out of or in connection with this Agreement, the Parties consent to the jurisdiction of, and agree that sole venue will lie in, the state and federal courts located in Salt Lake County, and the State of Utah.