For good and valuable consideration, you, and G & H Rental Company LLC, a Louisiana limited liability company (also referred to herein as, “Lessor,” “G&H,” “we,” “us” and “our”) agree as follows:
1. DEFINITIONS: As used herein, “P.1” refers to the first page or “face” of this Contract; “Contract” refers to P.1 together with these Terms and Conditions; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” and/or safety device(s) provided per Section [or “§”] 5 below); “Site” means the address set forth on P.1 where the Item(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. TERMS: You agree to rent from G&H the Item(s) for the period(s) specified on P.1 (the “Term”), to pay us our stated rental rate(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 Item(s), until all Rented Item(s) is/are returned to and accepted by G&H in the return condition required under this Contract (including § 6). Unless otherwise specifically agreed by G&H in writing, all rental rates are for normal use of the Rented Item(s) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which Rent is charged hereunder (each, a “Rental Day”), 4 hours per Half Rental Day period, 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day period (zero hours are permitted for any and all uncharged-for periods). Additional Rent at our highest incremental rate will be charged for late returns and overuse. If you fail to return the Rented Item(s) on time, this Contract may, at the sole option of Lessor, be considered TACITLY RECONDUCTED until such a time that the Rented Item(s) are returned. As such, the Rent will be increased to reflect any additional time and/or use. 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 estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). Unless otherwise agreed by G&H in writing, you agree: (a) to pay us: (i) the Rent specified on P.1 together with any deposit specified on P.1 in advance of the Term (together, 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 limit of your liability to us; and (iv) all Prepayments are NON-REFUNDABLE. You agree to pay all taxes (including sales and other taxes), fines, fees, assessments, tolls, and other charges related to each Item and/or the transactions contemplated in this Contract. 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 provide (up to 150% of the new replacement cost of the Rented Item(s)). You agree to pay us the maximum lawful charge for any check you write which is returned unpaid.
3. DELIVERY/RETRIEVAL: You will ensure the Site is reasonably clean, safe, secure, and fit for delivery, installation, and use of the Rented Item(s) and that each such Item is supplied with proper power (e.g., phase, voltage, wattage, amperage, and surge protection, as applicable). If we agree to provide any service(s) (including delivery and/or retrieval), you shall: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for delay(s) caused by you, your agents, employees, or any other parties, including providers of other equipment or services (“Other Party(ies)”) for which you agree to indemnify, defend, and hold harmless G&H. If you are not present upon delivery or retrieval of any Item(s), you shall accept the statements of our representatives regarding the same (including the status, condition, quality, quantities, and defect(s) of and/or with respect to the Item(s) and the Site). Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.
4. TITLE/OWNERSHIP: Except with respect to Rented Items G&H rents from one or more third parties (each, a “Third Party Owner” or “TPO”) and then re-rents to you (“Re-Rented Items”), G&H owns and retains title to all Rented Item(s) at all times. You will have exclusive control over the Rented Item(s) during the Term; subject to your obligation to fully and timely comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); (b) have any title or ownership interest in or with respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any Rented Item(s) or this Contract, without our prior written consent (in our sole and absolute discretion). G&H may, from time to time, substitute Rented Item(s) and/or sell or assign all or any part of its interests in one or more Rented Item(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 G&H.
5. INSTRUCTIONS: Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(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 reviewed and fully understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all applicable EPA, OSHA, MSHA, ASME, IBC, IFC, IEEE, ASSP, DOT, FMCSA, IFTA, ANSI and other applicable standards (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust, Cleaning, Decontamination, Ventilation, AWP/MEWP training and familiarization, charging, fueling, site assessment, and Electronic Logging Device requirements); (iii) have been made aware of the need to use all applicable personal protective equipment and safety devices (including, but not limited to, FALL AND RESPIRATORY PROTECTION DEVICES); (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, permits 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 Item(s) to disturb the ground surface (Call 811 or 1-800-272-3020 and go to www.Louisiana811.com at least 2 full business days prior to beginning work); and (vi) will promptly notify the authorities and G&H in the event of any theft or accident involving the Rented Item(s); (vii) will comply and ensure that all others fully comply, with this Contract at all times. You agree to notify G&H if any of the above requirements is/are breached, incorrect, or misleading.
6. CARE OF RENTED ITEMS: You agree to protect, properly maintain and care for all Rented Item(s) at all times, keep Items safely stored and locked when not in use, and return the Item(s) to us on time at the end of the Term, complete (with all original batteries, cords, attachments and peripherals), clean, free of contamination (including without limitation, asbestos, beryllium, silica and pathogens), in good order, condition, and repair, properly serviced and maintained, and if applicable, fully charged and/or full of the appropriate fuel, fluids, and lubricants. If you fail to do so, then in addition to the other amounts due under this Contract, you will pay us Rent at our highest incremental rate until all Item(s) have been returned or replaced as required, and all costs and expenses we incur in connection with such failure. You shall not, nor shall you permit anyone else to: (i) text, email or otherwise use any handheld communication device while operating any Rented Item; (ii) use any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS, CANNABINOIDS, AND ALCOHOL, WHETHER OR NOT LEGAL OR MEDICINAL); (iii) abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented Item(s); (iv) violate any instruction, insurance policy or warranty; (v) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (vi) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Item(s); or (vii) take possession of or exercise control over any Rented Item(s), without our prior written consent. You shall not place or store in/on any Rented Item(s) any contraband, illegal, or hazardous substances. Refer to Louisiana Civil Code, Article 2692 for lessee liability for the rental of movables: The lessee is bound to repair damage to the thing caused by his fault or that of persons who, with his consent, are on the premises or use the thing, and to repair any deterioration resulting from his or their use to the extent it exceeds the normal or agreed use of the thing. You are not permitted to alter, modify, or make changes, material or otherwise, to any Rented Item without our written consent.
7. MALFUNCTIONS: You agree to immediately 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 Item to G&H. Provided that such Malfunction did not result from or in connection with any wrongful or negligent act or omission of, or any breach of any provision of this Contract by, you or anyone you permit to use, occupy or otherwise deal with any one or more of the Items (“Other Party(ies)”), we will, at our option: (a) repair the Malfunctioning Item; (b) provide you with a comparable replacement Item; or (c) solely with respect to the Malfunctioning Item(s), return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. G&H will have no other obligation(s) with respect to Malfunctions, all of which YOU WAIVE, TOGETHER WITH ALL INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES.
8. SAFETY WARNINGS: The Rented Item(s) can be DANGEROUS and should be fueled, charged, maintained, and used with EXTREME CARE, ONLY FOR THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED, AND (IF APPLICABLE) LICENSED, ADULT USERS AND OPERATORS. 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) at the Site (unless otherwise specifically agreed in writing by G&H); (d) by properly trained, familiarized, qualified, certified and licensed adults; and (e) in full compliance with this Contract, the Instructions, and all applicable warranties and insurance policies, at all times.
9. NO WARRANTIES: G&H IS NOT THE MANUFACTURER OR DESIGNER OF ANY ITEM(S), ALL OF WHICH ARE PROVIDED “AS-IS.” TO THE MAXIMUM EXTENT PERMITTED UNDER LOUISIANA CIVIL CODE ARTICLE 2699, BY SIGNING HEREIN, YOU HEREBY EXPRESSLY WAIVE ANY LESSOR’S WARRANTY AGAINST VICES AND DEFECTS. See Louisiana Civil Code Article 2696 et. seq. and its/their successor(s), if any, for details. G&H DOES NOT MAKE ANY WARRANTY(IES), EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND GOOD AND WORKMANLIKE PERFORMANCE, as well as any warranty(ies) arising from course of dealing, course of performance and/or usage of trade) regarding any Item(s) or service(s) provided by or at the direction of G&H, nor does G&H make any warranty against INTERFERENCE OR INFRINGEMENT, ALL OF WHICH WARRANTIES YOU HEREBY WAIVE. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY G&H. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
10. ASSUMPTION OF RISK/INDEMNITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ELECTRIC SHOCK, ILLNESS, 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 (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, FUELING, CHARGING, USE, LOADING, STORAGE, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, CLEANING, DISINFECTION, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS G&H, 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 “Indemnitee”), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from and/or in connection with the Item(s), this Contract, our negligence, and/or your breach of any one or more of the terms hereof; and except only as provided in § 7, (C) WAIVE all rights and remedies available under the Louisiana Lease of Movables Act (La. R.S. § 9:3301, et seq. and its/their successors, if any), AS WELL AS ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, GENERAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, against each Indemnitee. Our maximum liability in connection with this Contract is limited to the amount(s) actually paid by you and received by us hereunder.
11. INSURANCE: You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; (c) workers’ compensation insurance; and (d) for all autos/vehicles and trailers included in or with the Rented Item(s): (i) hired auto liability insurance with minimum limits of $1,000,000; (ii) hired auto physical damage insurance for actual cash value; and (iii) contents insurance for the full new replacement cost of all contents thereof. Such policies shall, whenever possible: (i) name G&H as an additional insured and loss payee; (ii) waive subrogation against G&H; (iii) be primary and non-contributory; and (iv) include such other provisions (including deductibles) as we may require. You irrevocably appoint G&H as your agent and attorney-in-fact for purposes of submitting, negotiating, and settling claims on all of the above referenced policies.
12. FORCE MAJEURE/LIENS: To the maximum extent permitted under applicable law, you grant G&H a lien on all real and personal property: (a) placed in, on, and/or (b) improved with, any Rented Item(s). We may, without notice or liability to you, monitor and/or inspect, in person and/or electronically (including via Telematics/GPS) any Rented Item(s) at any time. You consent thereto and agree that all information thereby obtained will be our property. If any performance required of us is delayed, impaired or rendered more costly as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God,” event of force majeure (including, without limitation, fire, flood, storm, earthquake, tsunami, slide, subsidence, collapse, riot, war, violence 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 from such performance.
13. RIGHTS/REMEDIES: This is a “net” rental. Your duties hereunder are unconditional and shall not be subject to any reduction, setoff, or counterclaim. If you or any Guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract and/or any of your obligations arising hereunder or in connection herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or cease conducting business, or if any Item(s) shall be lost or damaged, you will be in DEFAULT under this Contract, whereupon, G&H may with or without legal process or notice (and without liability to you or any Guarantor), to the maximum extent permitted under applicable law (including the Louisiana Lease of Movables Act): (i) cancel the Term or the subject Contract(s), and/or your rights to use and possess the Rented Item(s); (ii) seek relief from stay; (iii) recover, empty, lock, restrict and/or disable any Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage, including without limitation damage to crops, flora and/or fauna (for which you will indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any Guarantor our associated damages, losses, costs and expenses FOR WHICH YOU WILL BE PERSONALLY LIABLE (including without limitation, Rent for the entire scheduled Term, overtime, loss of use, interest, attorneys’ fees, repossession, and collection costs); and/or (vii) pursue all rights and/or remedies available in connection (t)herewith, all of which shall be cumulative. You acknowledge that in the event of default, the damages provided in this Contract are reasonable in light of the anticipated harm that would result from your breach. You waive all statutes of limitations regarding our rights and remedies. 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.
14. LAW: This Contract shall be governed by and enforced under the laws of Louisiana. Disputes arising in connection with this Contract and/or its subject matter, shall, at our option, be submitted to binding ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator. Judgment on the arbitrator’s award shall be final and binding on the parties and may be entered in any court of competent jurisdiction. The terms of this Contract are severable. If any provision (or part thereof) is deemed invalid or unenforceable by any court or arbitrator of competent jurisdiction, such provision (or part thereof) will be deleted, and the remainder of this Contract will remain valid and enforceable. If legal action is commenced in connection herewith, we will be entitled to recover our costs and expenses associated therewith, including attorneys’ fees (which shall include attorneys’ fees of 25% of the amount owing in the event of judicial collection on open account per LA.R.S. Sec. 9:2781, or its successor provision(s), if any), plus judicial interest, expenses and arbitration costs if we prevail. YOU HEREBY WAIVE: (A) YOUR RIGHT(S), IF ANY, TO PARTICIPATE IN ANY CLASS, COLLECTIVE OR OTHER JOINT ACTION AGAINST G&H; AND (B) YOUR RIGHT TO TRIAL BY JURY.
15. MISCELLANEOUS: There are no third-party beneficiaries hereto other than the applicable Indemnitees. Digital, electronic, photocopied, and facsimiled signatures on this Contract will be deemed originals. This Contract and any addenda we provide, each of which is incorporated herein, represent(s) the entire agreement between you and G&H, superseding all other agreements and representations (including our website and advertising) and cannot be further amended or extended except in a writing signed by G&H. These Terms and Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us at any time (except only as otherwise agreed by us). Time is of the essence. You acknowledge that this Contract: (A) is a true operating lease, and not a capital lease or financing; (B) is fair and reasonable; and (C) shall bind and be enforceable by you, the Indemnitees, and all such parties’ respective insurers, subrogees, successors and permitted assigns.
16. THEFT WARNING: Obtaining by false pretenses and/or failing to timely return or surrender leased movables may be deemed THEFT, resulting in CRIMINAL PROSECUTION AND/OR CIVIL PENALTY(IES). See LA.R.S. §§14.220.1 and 14:67, et seq., as well as Louisiana Civil Code, Article 2315, et seq., and their successor provision(s), if any, for details.