TERMS AND CONDITIONS OF RENTAL CONTRACT - READYDIG COLORADO, LLC
For good and valuable consideration, you and ReadyDig Colorado, LLC, a Colorado limited liability company, (also referred to herein as “RDC,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” refers lo the first page or “face” of this Contract; “Contract” refers lo P.1 together with these Terms and Conditions; “Rented ltem(s)” or “ltem(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” and/or safety devices prm,ided per Section [or “§”] 5 below); “Site” means the address set forth on P.1 where the ltem(s) is/are to be delivered and/or used; and “Customer,” “Lessee,” “you” and “your” mean the “Renter,” “Customer,”
“Lessee” and/or “Guarantor” (as applicable) identified on P.1.
2. You agree to rent from RDC the Rented ltem(s) for the period(s) specified on P.1 (the “Tenn”), to pay us our stated rental rale(s) (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff, and to remain liable for all loss, theft, injuries and damages of, to, or associated with such ltem(s), until all Rented ltem(s) is/are returned to and accepted by RDC in the return condition required under this Contract (including§ 10). Unless otherwise specifically agreed by RDC, all rental rates are for nonnal use of the Rented ltem(s) on a single-shift basis during the Tenn, not exceeding 8 hours per 24-hour period for which Rent is charged hereunder (each a “Rental Day”), 40 hours per ?-Rental Day period, 160 hours per 28-Rental Day period (zero hours for any and all uncharged-for periods), and in accordance with the tenns of this Contract. Additional Rent at our highest incremental rate will be charged for late returns and overuse. You will not be entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder to account for time in transit, Act(s) of God, event(s) of force majeure or any other period(s) of nonuse. We have estunated the Rent based on your estunate of the length of the Tenn (the “Estimated Rent”). Unless otherwise agreed by RDC in writing, you agree: (a) to pay us: (i) the Estimated Rent specified on P.1 in advance of the Tenn (the “Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount(s) you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a lmit of your liability to us; and (iv) all Prepayments are NON-REFUNDABLE. Anything remaining with, in or on any Rented ltem(s) upon return will, at our option, be deemed abandoned.
3. If we agree to deliver and/or retrieve any ltem(s), you agree to: (a) ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the ltem(s); (b) pay our regular charge(s) therefor, and for all waiting tune; (c) be present at the Site at the agreed time(s); and (d) ensure our personnel have full access to the Site. We will not be responsible for delay(s) caused by any acts or omissions of/by you, your agents, employees or contractors, or any other parties, including providers of other equipment or services (“Other Providers”) for which you agree to indemnify, defend, and hold hannless RDC, its agents, employees, and contractors. If you are not present upon delivery or retrieval of any ltem(s), you agree to accept the statements of our representatives and/or delivery personnel regarding the same (including status, condition, quality, utility, defects, and quantities of or with respect to the ltem(s) and the Site).
4. RDC owns and will retain title to the Rented Items at all times. You will have exclusive control over the Rented ltem(s) during the Term: subject_to your obligation to always fully and tmely comply with this Contract. You SHALL NOT: (a) pennit the taking or existence of any lien, claun, security interest or encumbrance on any Rented ltem(s); (b) have any title or ownership interest in or with respect to any Rented ltem(s); or (c) loan. share. transfer. sublease. store. surrender or assign any Rented ltem(s) or this Contract. without our prior written consent (in our sole discretion). RDC may substitute Rented ltem(s) and/or sell or assign all or any part of its interests in one or more Rented ltem(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of RDC.
5. Upon the earlier of your receipt, or the delivery to the Site, of the Rented ltem(s) unless you thereupon reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair, fully charged and/or fueled (as applicable); (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by us), carefully examined, counted and tested by you or your agent(s); and (b) you: (i) have carefully re.iewed and fully understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other infonnation, if any, including all EPA OSHA MSHA ASME IBC IFC IEEE UL ASSP DOT FMCSA IFTA ANSI and other standards applicable to the ltem(s) (collectively, “Instructions”); (ii) will fully comply therewith (incl.iding Tier 4 Silica Oust Ventilation AWP training and familiarizafon charging fueling cleaning voftage and site assessment requirements); (iii) have been made aware of the need to use all applicable personal protective equipment and safety de.ices (including RESPIRATORY AND FALL PROTECTION); (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all applicable notice(s) to, and obtain all applicable licenses, authorizations, pennits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly marked before using any ltem(s) to disturb the ground surface (Call 811 and go to www.Colorado811.org at least 3full working days in advance); and (.i) will ensure that all others comply with this Contract AT ALL TIMES. You agree to notify: (A) the authorities and RDC in the event of any theft or accident invol.ing any Rented ltem(s); and (B) RDC if any of the above requirements is/are breached or proven incorrect.
6. NO WARRANTIES. RDC IS NOT THE MANUFACTURER OR DESIGNER OF ANY RENTED ITEM(S) ALL OF WHICH ARE PROVIDED “AS-IS.” RDC MAKES NO WARRANTYCIES). EXPRESS OR IMPLIED (INCLUDING ALL WARRANTYCIES) OF MERCHANTABILITY. SUITABILITY. FITNESS FOR A PARTICULAR PURPOSE. FUNCTION. DESIGN. QUALITY. CAPACITY. FREEDOM FROM DEFECTS AND GOOD AND WORKMAN LIKE PERFORMANCE, as well as any warranty(ies) arising from course of dealing, course of perfonnance and/or usage of trade) regarding any ltem(s) or Seoice(s) pro.ided by or at the direction of RDC, nor does RDC make any warranty against INTERFERENCE OR INFRINGEMENT, all of which warranties you hereby waive. NO DESCRIPTIONS SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY RDC. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
7. You agree to mmediately cease using any Item that is damaged, breaks down, or proves defective (a
“Malfunction”), in which event you will promptly notify, and return the Malfunctioning ltem(s) to, RDC. Provided that the Malfunction did not result I-om or in connection with any wrongful or negligent act or omission of/by you or anyone you pennit to use or otherwise deal with any Rented Item, or your breach of any pro.ision of this Contract, RDC will, at its option: (i) repair the Malfunctioning Item; (ii) provide you with a comparable item; or (iii) solely with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. RDC shall have no other obligation(s) regarding Malfunctions, all of which you waive, together with all incidental, consequential, special, exemplary, and punitive damages.
8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE, FUELED, CHARGED, SERVICED, MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED. FAMILIARIZED. AND LICENSED, ADULT USERS, OPERATORS AND OCCUPANTS. YOU AGREE TO PROVIDE ALL APPLICABLE FAMILIARIZATION, TRAINING, INSTRUCTIONS AND WARNINGS TO ALL SUCH PARTIES, and ensure that each such Item is fueled, charged, used, operated and occupied safely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by RDC at the Site; (d) BY PROPERL YTRAINED FAMILIARIZED QUALIFIED CERTIFIED AND/OR LICENSED ADULTS; and (e) otherwise in full compliance with this Contract, the Instructions and all applicable warranties and insurance policies, at all Imes.
9. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW YOU: (Al ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ELECTRIC SHOCK, ILLNESS, PRODUCTS LIABILITY, LOSS, THEFT, DAMAGE, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, FUELING, CHARGING, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, CLEANING, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); AND (B) RELEASE AND DISCHARGE. AND AGREE TO INDEMNIFY. DEFEND AND HOLD HARMLESS. RDC, its respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an “lndemnitee”), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses arising I-om and/or in connection with the ltem(s), this Contract, our negligence, and/or your breach of any one or more of the tenns hereof. Except only as provided in§ 7, YOU HEREBY WAIVE all rights, remedies, and defenses available under the Unifonn Commercial Code, as well as all direct, indirect, incidental, consequential, general, special, exemplary, and punitive damages, against each lndemnitee.
10. You agree to protect, properly maintain and care for the Rented Items at all tunes, keep each such Item safely and securely stored and locked when not in use, and return each such Item to RDC on lime, at the end of the Term, complete (with all original batteries, cords, attachments and peripherals), clean and free of contamination (including without Imitation, asbestos, beryilium, silica and pathogens), and otherwise in good order, condition, repair, properly serviced, maintained, and if applicable, fully charged and/or full of the appropriate fuel, fluids and lubricants. If you fail to do so, in addition to any other amounts specified on P.1, you will promptly pay to RDC, Rent at our highest incremental rale(s) until all such ltem(s) have been returned or replaced as required, and all costs and expenses we may incur in connection with such failure. You shall not nor shall you pennit anyone else to: (i) use any Rented Item while under the influence of any intoxicant(s) (including without Imitation CANNABIS CANNABINOIDS AND ALCOHOL WHETHER OR NOT LEGAL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented ltem(s); (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented ltem(s) lo any flammable, explosive, hannful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or de.ice(s) in, on or with any ltem(s); or (v) take possession of or exercise control over any Rented ltem(s), without our prior consent (in our sole discretion).
11. You agree to maintain all insurance we may require, including: (a) liability insurance with min mum limits of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; and (c) workers’ compensation insurance. Such policies shall, whenever possible: (A) name RDC as an additional insured and loss payee; (B) waive subrogation against us; (C) be primary and non- contributory; and (D) include a severability of interests clause and such other provisions (including deductibles) as we may require. You irrevocably appoint RDC as your agent and attorney-in-fact for the purposes of submitting, negotiating, and settling claims on all such policies.
12. lf and only if, we have offered, and you have paid for our OPTIONAL RENTAL LOSS DAMAGE WAIVER (“LDW’l (set forth on P.1, if available) in advance of the Tenn, you will have no liability to us for some or all of the repair/replacement costs for physical damage to Rented Items covered by LDW (“Covered Items”), due to fire, hail, theft, tornado, flood, vandalism, and wind (subject to certain exclusions). REFER TO OUR LOSS DAMAGE WAIVER BROCHURE FOR COMPLETE COVERAGE AND EXCLUSIONS. Your insurance, if any, will continue to apply and will remain prunary. You agree to assist us in recovering thereunder for all losses covered by LDW. LDW IS NOT INSURANCE NOR IS IT A WARRANTY.
13 There are no third-party beneficiaries hereto other than the applicable lndemnitees. These Tenns and Conditions apply to all ltem(s) identified on P.1, and to all other Items you obtain I-om us at any tme (except only as we may otherwise agree). The tenns of this Contract are severable. To the extent it is deemed invalid or unenforceable by any court of competent jurisdiction, such tenn(s) will be deleted, and the remainder of this Contract will remain valid and in full force and effect. This Contract, and any pictures, .ideas, and/or addenda we provide, each of which is incorporated herein, represent(s) the entire agreement between you and RDC, superseding all other agreements and representations (including our website and advertising) and cannot otherwise be amended or extended except in a writing signed by RDC. You agree to fully and tunely pay all taxes (including sales, use, and other taxes), tolls, fines, fees, assessments, and other charges related to each item. Illegal action is commenced in connection herewith, we will be entitled to recover our associated costs and expenses (including without limitation, attorneys’ fees) from you if we prevail. To the maximum extent pennitted under applicable law, you grant to RDC a lien on all real and personal property: (a) placed in or on; and/or (b) unproved with, any Rented ltem(s). We may, without notice or liability to you, monitor and/or inspect, in person and/or electronically (including via Telematics/GPS systems) the Rented ltem(s) at any time. You consent thereto and agree that all infonnation thereby obtained will be RDC’s property.
14. This is a “net” rental. Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perfonn or comply with this Contract and/or any of your obligations arising hereunder or in connection herewith; (b) pro.ide any incorrect or misleading infonnation to us; (c) become insolvent; or (d) die or cease conducting business, or if any Rented ltem(s) shall be lost or, except to the extent covered by LDW per§ 12, damaged, you will be in DEFAULT under this Contract, whereupon, RDC may with or without legal process or notice (and without liability to you or any guarantor), to the maxmum extent pennitted under applicable law: (i) cancel the Tenn and/or the subject Contract(s) (and/or your rights to use and possess the Rented ltem(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict and/or disable any ltem(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage, including without limitation, any and all damage to crops, flora and/or fauna (for which you will indemnify, defend and hold hannless each lndemnitee); (iv) perfonn your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement ltem(s); (.i) recover from you and/or any guarantor our associated damages, losses, costs and expenses (including without Imitation, Rent for the entire scheduled Tenn, overtime, loss of use, interest, attorneys” fees, repossession costs, and collection costs); and/or (vii) pursue any one or more other rights and/or remedies available in connection (!)herewith, all of which shall be cumulative.
15. If any perfonnance required of RDC shall be delayed, impaired or made more costly as a result of any act or omission of/by you, any Other Pro.ider(s) or any “Act of God,” event of force majeure (including fire, flood, stonn, earthquake, tsunami, slide, subsidence, collapse, riot, war, .iolence or threat thereof, theft, terrorism, cyber-attack, supplier delay, strike, shutdown, power surge or outage, epidemic, pandemic and governmental and regulatory actions) or other events, facts or circumstances beyond our reasonable control, we will be excused I-om such perfonnance. You waive all statutes of limitations regarding our rights and remedies. All amounts due hereunder but not timely paid will bear interest at the lesser of 18% per annum or the highest rate permitted under applicable law. You authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you pro.ide (up to 150% of the new replacement cost of the ltem(sll. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability in connection with this Contract is limited to the amount(s) actually paid by you and received by us hereunder for the ltem(s) identified on P.1. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time is of the essence. This Contract: (i) is a true operating lease, and not a financing; (ii) is fair and reasonable; and (iii) shall bind and be enforceable by you, RDC, the other lndemnitees and their respective insurers, subrogees, successors and pennitted assigns. Digital, electronic, photocopied, and facsuniled signatures and initials appearing on this Contract will be deemed originals.
16. This Contract shall be governed by and enforceable under the laws of Colorado. Disputes arising in connection with this Contract shall, at RDC”s option, be submitted to binding ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator and in a location selected by RDC. Judgment on the arbitrator”s award shall be final and binding and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith shall lie solely and exclusively in the federal, state, and local courts located in or nearest to Weld County, CO. You consent and submit thereto and waive all clams that such venue lies in an inconvenient forum. YOU HEREBY WAIVE: !A) YOUR RIGHT(S). IF ANY. TO PARTICIPATE IN ANY CLASS. COLLECTIVE OR OTHER JOINT ACTION AGAINST RDC: AND CB) YOUR RIGHT TO TRIAL BY JURY.
17. WARNING: Obtaining, retaining, or exercising control over anything of value of another without authorization or by means of threat or deception, or without the consent of the
owner, or knowingly failing to return said property to the owner or provider within 72 hours after the agreed upon time of return may be deemed theft, subjecting the violator to CRIMINAL
PROSECUTION AND/OR CIVIL PENALTIES. See C.R.S, §18-4-401, et seq, for details,