EQUIPMENT RENTAL TERMS AND CONDITIONS

TERMS. These Equipment Rental Terms and Conditions (these “Terms”) govern Lessee’s rental of equipment (the “Equipment”) from Elite Technical Services Group, Inc., a Michigan corporation (“Lessor”) and are incorporated into, and form an integral part of, that certain Rental Agreement (the “Agreement”) entered into between Lessor and the person or entity identified as the “Lessee” in the Agreement.
RENTAL CHARGES & PERIOD. Lessor hereby rents the Equipment to Lessee for the rental charges set forth in the Agreement (the “Rental Charges”) and for the period set forth in the Agreement (the “Rental Period”). Notwithstanding the foregoing, Lessor may terminate the Agreement at any time and for any reason or no reason by written notice to Lessee. All Rental Charges and any other amounts owing under the Agreement will be payable in full at the earliest of (a) the end of the Rental Period; (b) the return of the Equipment to Lessor’s premises; (c) 30 days following Lessor’s invoice to Lessee (if Lessee has a credit account with Lessor); and (d) at such time as set forth in the Agreement or these Terms. Payments made with a credit card will be subject to a 3.5% processing fee. If Lessee fails to timely pay any Rental Charges or any other amounts owing to Lessor, Lessor may charge Lessee with interest on any such Rental Charges or other amounts at the rate of 1.5% per month or the maximum amount allowable under applicable law, whichever is greater. Upon Lessor’s request, Lessee agrees to immediately pay for any and all Losses (defined below) arising out of or relating to Lessor’s enforcement of the Agreement and/or these Terms.
DEPOSIT. In addition to securing the payment of Rental Charges, Lessee acknowledges and agrees that any rental deposit provided by Lessee to Lessor will secure Lessee’s full and complete performance of all of Lessee’s obligations under the Agreement and these Terms and will be credited against any and all Losses (defined below) resulting from Lessee’s breach of any representation, warranty, covenant, or agreement contained in the Agreement or these Terms. Lessee acknowledges and agrees that Lessee is not entitled to any interest accruing on any rental deposit.
INSPECTION OF EQUIPMENT. Lessee represents, warrants, covenants, and agrees that: (a) Lessee inspected the Equipment before Lessee took possession of it and that the Equipment was in good working condition and repair, free from defects, and suitable for Lessee’s needs; (b) Lessee is familiar with the proper operation and use of the Equipment; and (c) Lessee will be solely responsible for the operation of the Equipment and will only allow licensed, trained, and experienced operators and/or personnel to utilize or operate the Equipment in accordance with all of the manufacturer’s requirements and recommendations and customary safety practices.
USE OF EQUIPMENT. Lessee represents, warrants, covenants, and agrees that Lessee will: (a) keep the Equipment in its sole possession, custody, and control during the Rental Period; (b) only use the Equipment in accordance with its operational capabilities and its specifications and, in any event, in a safe and careful manner; (c) only permit qualified, trained operators to use the Equipment; and (d) comply with any and all federal, state, and local laws, rules, regulations, and statutes applicable to the Equipment, any corresponding personal protective equipment, and/or Lessee’s use or possession thereof, including by obtaining and maintaining any and all licenses, permits, or other governmental authorizations required to use or possess the Equipment.
TAXES. Lessee acknowledges and agrees that Lessee will be solely responsible for, and will timely pay, any and all taxes, fees, assessments, and other charges arising out of or relating to the Agreement and these Terms and/or Lessee’s use or possession of the Equipment.
MALFUNCTIONS. If, at any time, the Equipment becomes unsafe, malfunctions, or requires repair, Lessee will immediately cease using the Equipment, notify Lessor, and return the Equipment to Lessor. If the condition is the result of normal operation, Lessor will repair the Equipment or replace the Equipment with similar equipment to the extent available. Notwithstanding the foregoing, Lessor will have no obligation to repair or replace any Equipment that becomes unsafe, malfunctions, or requires repair as a result of any misuse, abuse, or neglect while such Equipment is in the possession, custody, or control of Lessee.
MAINTENANCE. Lessee, at its sole cost and expense, agrees to keep the Equipment in good working condition and repair, with normal and reasonable wear and tear excepted. Before returning the Equipment to Lessor, Lessee agrees to clean the Equipment to Lessor’s satisfaction. If Lessor, in its sole discretion, determines that the Equipment needs to be cleaned, Lessee agrees to pay Lessor $75.00 per hour for each and every hour Lessor or its agents spend cleaning the Equipment.
RETURN OF EQUIPMENT. At the expiration of the Rental Period, Lessee agrees to immediately return the Equipment to Lessor’s premises during Lessor’s normal business hours in the same condition as it was received, subject to normal and reasonable wear and tear (as determined by Lessor in its sole discretion). If the Equipment is lost or destroyed, or if Lessee fails to immediately return the Equipment to Lessor at the expiration of the Rental Period, Lessee agrees to pay to Lessor, in addition to any and all Rental Charges and other amounts owing under the Agreement and these Terms, 110% of the full replacement value of the Equipment (as determined by Lessor in its sole discretion). If the Equipment is returned damaged or in an excessively worn condition, Lessee agrees to pay to Lessor for any and all costs to repair the Equipment, as well as Rental Charges for the Equipment until such time as the Equipment is repaired and returned to Lessor. Lessor is under no obligation to repair the Equipment unless and until Lessee has paid the estimated costs thereof. If the Equipment is not returned at the expiration of the Rental Period or if, for any reason, Lessor desires to retake the Equipment, Lessee acknowledges and agrees that Lessor and its agents may take any and all actions to retake the Equipment without any liability to Lessee, including by entering Lessee’s property and retaking the Equipment without notice and/or legal process. Lessee further agrees to pay the Rental Charges set forth in the Agreement to Lessor until the Equipment is taken back.
LESSEE’S INSURANCE COVERAGE. Lessee agrees to maintain and carry, at its sole cost and expense and in such amounts and forms as are satisfactory to Lessor in its sole discretion, the following minimum insurance coverages: commercial liability, physical damage, public liability, property damage, automobile, employers’ liability, workers’ compensation, and casualty insurance for the full replacement cost of the Equipment, including all risks of loss or damage covered by the standard extended coverage endorsement, to cover any Losses (defined below) arising from the handling, transportation, maintenance, operation, possession, or use of the Equipment. All such insurance must be primary and non-contributory to any other insurance maintained by Lessor. Any deductibles or self-insured retentions will be the sole responsibility of Lessee. All such insurance must include a waiver of rights of recovery against Lessor and its insurers by Lessee and its insurers, as well as a waiver of subrogation against Lessor and its insurers. Lessee agrees to provide Lessor, upon Lessor’s request, with a certificate of insurance setting forth the foregoing insurance policies, which certificate of insurance must name Lessor as loss payee and the named insured and state that Lessor will receive not less than 30 days’ prior written notice to any cancellation of, or change to, any such insurance.
TITLE TO EQUIPMENT. The Agreement and these Terms constitute a rental agreement and/or bailment and not a sale or the creation of a security interest. Lessee acknowledges and agrees that Lessee will not have or acquire any right, title, or interest in, to, or under the Equipment, except that Lessee will have the limited right to use the Equipment during the Rental Period in accordance with, and subject to, the Agreement and these Terms. Title to the Equipment will, at all times, remain exclusively with Lessor. Unless otherwise agreed to by Lessor in writing, Lessee has no option or right to purchase the Equipment. Lessee agrees to keep the Equipment free and clear from any and all liens, claims, security interests, and encumbrances.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. THE EQUIPMENT IS BEING DELIVERED BY LESSOR TO LESSEE “AS IS, WHERE IS” AND WITH ALL FAULTS. NEITHER LESSOR NOR ANY OTHER PERSON OR ENTITY HAS MADE, OR WILL BE DEEMED TO HAVE MADE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS, WARRANTIES, OR GUARANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT. IN NO EVENT WILL LESSOR BE LIABLE TO LESSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING FOR LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR’S ENTIRE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THE AGREEMENT (INCLUDING THESE TERMS) AND/OR THE EQUIPMENT WILL NOT EXCEED THE RENTAL CHARGES PAID BY LESSEE TO LESSOR UNDER THE AGREEMENT IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM, AND NO ACTION MAY BE BROUGHT BY LESSEE AGAINST LESSOR FOR ANY CLAIM RELATING TO OR ARISING OUT OF THE AGREEMENT (INCLUDING THESE TERMS) AND/OR THE EQUIPMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CLAIM.
INDEMNITY & HOLD HARMLESS. Lessee acknowledge and agrees that Lessee is fully responsible for the Equipment while the Equipment is in Lessee’s possession, custody, or control. To the maximum extent permitted by applicable law, Lessee agrees to indemnify, defend, and hold harmless Lessor, Lessor’s affiliates and subsidiaries, and Lessor’s and Lessor’s affiliates’ and subsidiaries’ officers, directors, managers, members, shareholders, employees, consultants, advisors, attorneys, representatives, and agents from and against any and all demands, claims, actions, causes of action, damages, liabilities, obligations, losses, taxes, costs, and expenses (including actual attorneys’ fees), whether or not asserted by a third party or directly by Lessor (collectively, “Losses”), arising out of or related to: (a) Lessee’s breach of any of the representations, warranties, covenants, and/or agreements contained in the Agreement or these Terms; (b) the Equipment; and/or (c) Lessee’s and/or any of its employees’, agents’, or representatives’ negligence, willful misconduct, fraud, and/or violation of law.
DEFAULT. Lessee will be deemed to be in default of the Agreement and these Terms if (a) Lessee fails to pay any Rental Charge or any other amount owing under the Agreement or these Terms when due; (b) Lessee breaches any representation, warranty, covenant, or agreement of Lessee in the Agreement or these Terms; or (c) Lessee becomes insolvent, files for, or is subject to, a bankruptcy proceeding, makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a receiver, trustee, or liquidator of Lessee or of all or a substantial part of Lessee’s assets. If Lessee defaults under the Agreement or these Terms, Lessor will have the right: (i) to declare the entire amount of Rental Charges and other amounts owing under the Agreement and these Terms immediately due and payable, without notice or demand to Lessee; (ii) to sue for and recover all Rental Charges and other amounts due and owing under the Agreement and these Terms; (iii) to take possession of the Equipment without demand, notice, or legal process, wherever the Equipment may be located, with or without terminating the Agreement (and Lessee hereby waives any and all Losses occasioned by such taking of possession); (iv) to terminate the Agreement; and (v) to pursue any other remedy at law or in equity. Notwithstanding any repossession of the Equipment, or any other action which Lessor may take, Lessee will remain liable for the full performance of all of its obligations under the Agreement and these Terms. The rights and remedies of Lessor under the Agreement and these Terms will be cumulative, will be in addition to any other rights and remedies that Lessor may have under any other agreement, or at law or in equity, and may be exercised concurrently or separately.
NO ASSIGNMENT, TRANSFER, OR SUBLETTING. Lessee may not assign, sublease, or transfer the Equipment to any third party without the prior written consent of Lessor.
MISCELLANEOUS.
1. The Agreement and these Terms constitute the full and complete understanding and agreement of the parties with respect to the matters set forth in the Agreement and these Terms and supersede all prior and contemporaneous oral or written negotiations, representations, warranties, undertakings, discussions, understandings, and agreements between the parties with respect thereto. The Agreement and these Terms will control over any conflicting preprinted terms and conditions contained in any purchase order or similar document provided by Lessee to Lessor. The Agreement and these Terms may be modified, amended, or waived only by an agreement in writing signed by Lessor. The failure by Lessor to insist upon strict compliance with any of the terms, covenants, or conditions of the Agreement or these Terms will not be deemed a waiver of such term, covenant, or condition, nor will any waiver of such term, covenant, or condition at any one or more times be deemed a waiver of such term, covenant, or condition. In no event will Lessor be responsible or liable for any failure or delay in the performance of Lessor’s obligations under the Agreement or these Terms if such failure or delay arises out of or is related to, directly or indirectly, any forces beyond Lessor’s control. The Agreement and these Terms will inure to the benefit of and be binding upon the parties and their respective successors and assigns; provided that Lessee may not assign the Agreement or these Terms, nor any of Lessee’s rights under the Agreement or these Terms, without the prior written consent of Lessor.
2. Time is of the essence with respect to Lessee’s obligations under the Agreement and these Terms. Whenever possible, each provision of the Agreement and these Terms will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement or these Terms is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and the Agreement and these Terms will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained in the Agreement or these Terms.
3. All issues concerning the Agreement and these Terms will be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Michigan. Any action or proceeding arising out of or in any way related to the Agreement or these Terms, or to the transactions described in the Agreement or these Terms, must be brought only in those state or federal courts having jurisdiction over actions arising in Wayne County, Michigan, and each party irrevocably consents to the jurisdiction of such courts and irrevocably waives any objection thereto. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THE AGREEMENT AND THESE TERMS (EACH PARTY HAVING HAD THE OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THE AGREEMENT OR THESE TERMS OR THE TRANSACTIONS DESCRIBED IN THE AGREEMENT OR THESE TERMS.
4. Lessee represents and warrants that Lessee’s execution and performance of the Agreement and these Terms does not constitute a breach or violation of any other agreement, obligation, or understanding with any third party. Any individual signing the Agreement on behalf of Lessee represents and warrants to Lessor that he or she is of legal age and that he or she has the authority and power to sign the Agreement on his or her own behalf, or on behalf of Lessee, as applicable. The language used in the Agreement and these Terms will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. The captions used in the Agreement and these Terms are for convenience of reference only and do not constitute a part of the Agreement or these Terms and will not be deemed to limit, characterize, or in any way affect any provision of the Agreement or these Terms, and all provisions of the Agreement and these Terms will be enforced and construed as if no caption had been used in the Agreement or these Terms. The Agreement may be executed by original signature or by facsimile, digital, or other electronic signature and in one or more counterparts, each of which will be deemed an original and together will constitute one and the same instrument.