1. CUSTOMER ACKNOWLEDGEMENT.
Customer and GK Equipment rental.(hereinafter referred to as "GK") shall examine the equipment described on page one of this Agreement (hereinafter, the"Equipment") at the time of delivery. Unless Customer notifies GKEquipment to the contrary, in writing, within (24) hours after delivery, the Customer is deemed to have accepted the Equipment, including any wear items provided therewith, and acknowledged it was delivered in good and working condition.
2. MAINTENANCE& REPAIRS
MAINTENANCE& REPAIRS. Customer shall, at its own expense, maintain the Equipment in good repair and working condition. At a minimum, Customer shall: (a) perform all normal/routine daily and weekly maintenance to the Equipment in accordance with the manufacturer's recommendations, including, but not limited to, regularly greasing all required grease points and maintaining all fluids at the proper levels; (b) perform the 250-hour service interval, if applicable, which includes, at a minimum, fluids and filter changes as required by the manufacturer, (c) replace expendable items including, but not limited to, shear blades, hydraulic hoses, cutting edges, teeth, belts, and filters; and (d) pay for any non-warranty repairs performed during the rental term resulting from the Customer's improper use, abuse, or neglect of the Equipment, including the failure to perform required maintenance.
3. INSPECTION.GK
Reserves the right to inspect the Equipment at any time during the rental term. If GK determines, in its sole discretion, that Customer is misusing abusing or neglecting the Equipment, GK may: (a) terminate this Agreement, without notice, and remove the Equipment from the job site, or (b) perform the necessary maintenance and suspect further operation of the Equipment until said maintenance is complete. Customer shall pay GK any and all costs and expenses incurred by reason of removing the Equipment from the job site and/or performing the necessary maintenance.
4. DOWNTIME.
Customer agrees rental fees will not be abated for downtime resulting from: (a)inclement weather. (b) staffing issues, (e) weekends or holidays, (d) misuse, abuse, neglect of the Equipment. Customer shall immediately notify GK, in writing if the equipment becomes inoperable for any other reasons. Abatement of rental fees will only be considered for downtime attributable to GK and only ifGK is unable to remedy the issue within (36) hours after first receiving written notice from Customer.
5. INSURANCE.
Prior to delivery of the Equipment,Customer shall provide GK with satisfactory written evidence of physical damage insurance covering the entire value of Equipment from loss relating to fire, collision, theft, and/or damages while in the possession or control of Customer and naming GK as a loss payee. Any payments issued by the Customer': physical damage insurer must be made to GK and Customer "as their interests may appear." Customer acknowledges rental fees will continue to accrue and will not be abated until the Equipment is restored and can be put back in to service. In addition, Customer shall provide GK with written evidence of general liability insurance and. If applicable, Automobile Coverage with coverage limits of not less than $1 000,000.00 naming KG Equipment rental.and/or its affiliates as "Additional Insured'. Customer shall instruct the insurer of any policy required under this Agreement to provide GK at least (30)days prior written notice before canceling or altering any policy so to affect the interest of GK. Customer agrees to cooperate in the prosecution of any claim under the physical damage or general liability insurance policies and hereby appoints GK as its attorney-in-fact for this purpose.
6. SECURITY INTEREST.
Customer expressly authorizes GK to cause this Agreement or other instruments, including Uniform Commercial financing statements, to be filed or recorded for the purposes of evidencing GK's interest in the Equipment.Customer expressly authorizes GK to prepare, sign and file a Uniform Commercial Code financing statement withoutCustomer's signature, and Customer hereby waives any right that its signature is required. Customer represents and warrants to GK that: (a) it has the power to make. deliver, and preform under this agreement; (b) the person executing and delivering this Agreement is authorized to do so on the Customer's behalf;(c) this Agreement constitutes a valid and legally binding obligation upon Customer; (d) all credit, financial, and other information submitted to GK in connection with this Agreement, including any previously submitted CreditApplication and/or Personal Guaranty, is and shall continue to be true, accurate, and complete.
7. INDEMNITIES.
Customer waives and releases any and all claims against GK for any losses, costs, expenses, or damages of any kind resulting from delays in delivery, defects, inefficiency of the Equipment, or accidental breakage, including incidental damages. Customer waives and releases all claims against GK for injuries or damages to person or property (including death) arising out of theEquipment by Customer, its agents. employees, and representatives. Customer assumes liability for, and agrees to defend, indemnify, protect, and hold harmless GK, its agents, successors and assigns against all losses, damages, injuries, claims for liability, theft, destruction, demands, and expenses, including legal expenses, of whatever nature, including but not limited to property damage, personal injury, death, or strict liability in tort or product liability arising out of use, transportation, condition, or operation of any Equipment. Customer's obligations under this Section 7 will survive the termination or expiration of this Agreement for any reason.
8. 2. WARRANTY LIMITATIONS.
GK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATIONS, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES MAY GK BE LIABLE TO CUSTOMER FOR LOST PROFITS OR SPECIAL,INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.
9. EQUIPMENTS OPERATIONS.
Customer shall return the Equipment in the same condition as when delivered to it by GK, less normal wear and tear. Customer shall pay any claims and damages resulting from the use or handling of the Equipment, or accidental breakage, including incidental damages. Customer waives and releases all claims against GK for injuries or damages to person or property. Customer shall pay the cost to repair any damages to the Equipment sustained during rental term.Customer shall return the Equipment to GK after the rental term in a clean condition and free from excess dirt, debris, and rubbish. In the event theEquipment is returned with excessive dirt, debris, or rubbish, Customer shall pay GK a minimum cleaning fee of $100.00. Customer shall immediately report any damage or failure of the Equipment to GK in writing. Customer shall not subject the Equipment to careless or needless rough usage. Customer shall pay $15.00 to replace any lost or missing key(s) and the list price to replace any lost or missing operator manual(s).
10. SAFETY.
Customer warrants that it is familiar with, or will become familiar with, the safe operation and use of the Equipment before operating the Equipment.Customer agrees not to compromise the integrity of any safety systems of theEquipment. Customer shall not modify the Equipment in any way. Customer shall only use the Equipment within its rated capacity and shall be operated by safe, careful, and competent personnel. At all times during the effective term of this Agreement, Customer shall comply with all municipal, county, state and federal laws, ordinance, and regulations.
11. ASSIGNMENT OF LEASE.
Neither this Agreement nor Equipment rented hereunder may be assigned or sublet by Customer without the written consent of GK. Customer shall not transfer, convey, or attempt to transfer or convey the Equipment in any way without the express written of GK, which consent may be withheld for any reason. Customer shall keep the Equipment free of all taxes, liens, and encumbrances.
12. EQUIPMENT MONITORING.
Customer acknowledges the Equipment may contain a global positioning system ("GPS") device that records certain activities and functions of the Equipment while in the Customer's possession. GK retains all rights to the date collected by any GPS device and may use such information at its sole discretion. Customer is prohibited from disabling the GPS device in any way. If the GPS device is disabled, GK may terminate this Agreement immediately and retrieve the Equipment at Customer's sole expense.
13. DEFAULT BY CUSTOMER.
Customer is in default of this Agreement if : (a) it fails to timely pay GK any rental fee(s) or other charges as required in this Agreement,(b) any execution or other writ process is issued in any action or proceeding against Customer, whereby the Equipment may be seized or taken or detained, (c)a proceeding in bankruptcy, receivership, or insolvency is instituted by or against Customer or his property, (d) it enters into any arrangement or composition with his creditors, or (e) it breaches any other term, covenant, or condition of this Agreement (each, a "Default"). In the event of a Default, GK may retake immediate possession of the equipment by entering upon any premises where the Equipment is or may be located, with or without notice, and without being liable in any suit or action or proceeding by the Customer.All remedies hereunder are cumulative, and are not exclusive of any other right or remedy.
14. HAZARDOUS MATERIAL.
Customer agrees to notify GK, in writing, if the equipment is or maybe exposed to hazardous, corrosive, or otherwise harmful chemicals, materials, or substances, including saltwater ("Hazardous Materials"). Customer shall pay the cost to repair or replace any and all damage to the Equipment caused by or resulting from exposure to Hazardous Materials. If, in its sole discretion, GK determines the Equipment was exposed to and/or damaged by Hazardous Materials, customer agrees to pay GK, at its election : (i) the insurance value of the Equipment, or (ii) the cost to fully repair, restore and/or decontaminate the Equipment, as determined by GK. In any event, rental fees will continue to accrue until Customer discharges its obligations under this paragraph.
15. TITLE TO GOODS.
GK shall retain title to the Equipment before, during, and after the rental term. Any additions or accessions made to or on the Equipment by customer immediately become property of GK. Nothing herein may be construed as conferring upon the Customer any ownership interest in the Equipment.
16. SEVERABILITY.
Any provision of this Agreement deemed illegal or unenforceable will be severed from this Agreement, and all other provisions remain in full force and effect.
17. COMPLETE AGREEMENT.
This Agreement is the complete and final expression of the parties as to the subject matters contained herein. This Agreement supersedes all previous agreements and representations between the parties. No term or provision of this Agreement may be changed, waived, discharged, or terminated orally, but only by a written instrument agreements and representations between the parties. No term or provision of this Agreement may be changed, waived, discharged, or terminated orally, but only by a written instrument signed by the party against which enforcement is sought. No additional terms or conditions shall be incorporated in this Agreement unless specifically referenced herein.
18. GOVERNING LAW.
This Agreement shall be interpreted under and governed by the laws of theState of Illinois, without regard to its conflict of law principles. The parties agree, and consent to the exclusive jurisdiction of the courts of the State of Illinois in cook County and United States District Court.
19. ATTORNEYS' FEES:
Should collection or litigation become necessary, Customer agrees to pay and all of GK's collection costs and reasonable attorney fees and expenses for:(a) outside counsel and (b) in-house counsel. Customer agrees to pay reasonable in-house counsel fees at the prevailing market rate.