TERMS & CONDITIONS
Owner rents to Lessee, and Lessee rents from Owner the Equipment described in Paragraphs G and H, subject to the terms and conditions contained herein.
The term of this Agreement shall commence on the date of execution of this Agreement and shall continue as set forth on Paragraph D4, unless sooner terminated as provided herein. This Agreement will not be considered to be executed until signed and accepted by the General Manager of Owner or an authorized agent and an authorized agent of Lessee. Upon expiration of this Agreement, this lease shall be converted to a month-to-month lease at the monthly rate then in effect, unless either party gives written notice within 30 days of the expiration of this Agreement of its intention not to renew this Agreement. If this Agreement is initially executed as or becomes month-to-month, then this Agreement may be terminated upon either party giving notice at lease thirty (30) days prior to a rental payment date as set forth in Paragraph D3.
The rent for the Equipment (hereinafter "the BASIC RENTAL") shall be due in advance or, if the term hereof is more than one (1) month, then in advance on a monthly basis on the date set forth in Paragraph D3 at the rate in Paragraph D5 plus any other additional charges. There will be no proration or return of rent if the Equipment is surrendered to Owner prior to the end of the term of this Agreement.
4. Risk of Loss and Damage
LESSEE ASSUMES THE ENTIRE RISK OF LOSS, THEFT, AND DAMAGE TO THE EQUIPMENT AND ALL PROPERTY PLACED THEREIN OR THEREABOUT FROM ANY CAUSE WHATSOEVER, including but not limited to damage caused by transportation, cold, heat, water, and dust, and no such loss, theft, or damage to the Equipment or any property placed therein or thereabout shall impair Lessee's obligation to pay any obligation under this Agreement, which obligation shall continue in full force and effect despite any event of loss, theft, or damage of any kind whatsoever to the Equipment. In the event of any such loss or damage, Lessee, at the sole option of Owner, shall: (a) pay Owner to repair or restore the Equipment to good condition and working order; or (b) replace the same with like property in good condition and working order; or (c) pay Owner the amount necessary to replace the Equipment. Upon payment to Owner of the full amount of the stipulated value, the Agreement shall terminate and Lessee shall become entitled to the Equipment in its then existing condition. Owner shall not be obligated to undertake, by litigation or otherwise, the collection of any claim for loss or damage to the leased Equipment.
5. Interest Charges
Should Lessee fail to pay any amount when due, then such sums shall bear interest at the maximum rate permitted by applicable law, but in no event at a rate to exceed 18% per annum on amounts due.
6. Delivery and Pickup Charges
Lessee shall pay delivery and pickup charges in the amounts in Paragraphs D.6 through D.11 assuming a normal and convenient pickup or delivery. Owner shall deliver the Equipment to the location in Paragraph E hereof and shall pick up the Equipment at the location upon the expiration or earlier termination of this Agreement. Lessee shall pay any costs incurred by Owner above normal pickup charges, including the hourly rate in paragraph D.10. Such additional charge shall not apply to any excess time caused by breakdown or malfunction of Owner. The delivery or pickup time shall commence upon the first arrival of the driver at the Equipment location and shall end at the time of departure.
7. Security Deposit
Upon execution of this Agreement, Lessee shall pay the security deposit set forth in Paragraph D.15 as a deposit to ensure the full and faithful performance by Lessee of all conditions of this Agreement. If Lessee defaults in the payment of rent or any other charge hereunder, or in the event Owner incurs any costs or damages, then without notice of any kind, Owner may deduct any such charges from the security deposit. If any amount is deducted, then, upon Owner's written request, Lessee shall immediately replace any amount so deducted to return the security deposit to its original amount. Within sixty (60) working days after the expiration or earlier termination of this agreement, Owner will mail to Lessee any remaining security deposit after deducting applicable charges along with an itemized statement.
8. Site Conditions and Release
Lessee invites Owner to enter upon the Equipment location as described in Paragraph E to deliver and pick up the Equipment. Lessee represents and warrants the Equipment location and the access thereto is suitable for the delivery vehicles to enter and operate safely and effectively. Lessee agrees the on-site delivery, pick up, loading, unloading, or relocating will be under the direction of Lessee and his representatives. LESSEE RELEASES AND HOLDS OWNER HARMLESS FROM ALL CLAIMS FOR DAMAGES TO THE ROADWAYS, GROUND, BUILDINGS, AND PERSONAL PROPERTY IN OR AROUND THE EQUIPMENT LOCATION, OR ANY OTHER CLAIM ASSOCIATED WITH THE DELIVERY, PICKUP, OR RELOCATION OF THE EQUIPMENT AND WILL INDEMNIFY OWNER FOR ANY DAMAGES CAUSED TO OWNER BECAUSE THE LOCATION IS NOT SUITABLE FOR SUCH PURPOSES.
Lessee shall use the Equipment in full compliance with all laws, ordinances, and regulations. Lessee agrees to use the Equipment according to safe and prudent procedures.
10. Permits and Taxes
Lessee shall obtain all licenses, permits, and other necessary approvals of the Equipment as shall be required by law and pay all fees, assessments, taxes, penalties, and interest imposed during the term of the Agreement by any government agency upon the Equipment whether or not imposed upon Owner or Lessee.
11. Markings on Equipment
If Owner supplies Lessee with signs, labels, plates, or other markings, Lessee shall affix, or allow Owner to affix and keep the same in a place on the Equipment designated by Owner. Lessee shall not remove or alter any of the markings provided by Owner, nor place or paint any other marking on the Equipment without the written consent of Owner.
12. Location and Relocation of Equipment
After the Equipment has been delivered to Lessee, the Equipment shall not be moved in any manner without the written consent of Owner. If Lessee desires to have the Equipment relocated, he shall notify Owner of such fact and Owner will then within reasonable period of time move the Equipment. Owner may charge Lessee a relocation fee to move the Equipment, which charges shall be due with the next monthly rental payment, or if none, within five (5) days of such relocation by Owner. IF LESSEE REQUESTS A RELOCATION OF EQUIPMENT, LESSEE SHALL BE SOLELY RESPONSIBLE TO REMOVE ALL CONTENTS OF THE EQUIPMENT. IF OWNER MOVES THE EQUIPMENT CONTAINING LESSEE'S PROPERTY, THEN OWNER WILL HAVE NO RESPONSIBILITY TO INVESTIGATE THE CONTENTS OF THE EQUIPMENT, NOR WILL OWNER HAVE ANY LIABILITY FOR ANY DAMAGES TO THE CONTENTS OF THE EQUIPMENT DURING ANY RELOCATION. If Owner authorizes Lessee to move Equipment upon written request by Lessee, Lessee shall obtain and provide insurance naming Owner as an insured. If Lessee relocates the Equipment, Lessee indemnifies and holds harmless Owner from any liability arising from such relocation.
13. Access to Equipment
Owner shall have a right of full access during normal business hours to enter the Equipment location to inspect the Equipment and observe its use. Lessee shall keep the Equipment freely accessible to inspection and removal by Owner. If Lessee shall default under this Agreement or upon the expiration of this Agreement, Owner shall have the absolute right after reasonable notice to Lessee to enter the Equipment location and repossess the Equipment. In no event will "Reasonable" be construed to exceed 72 hours notice. Within 72 hours of Lessee's receipt of Owner's notice to repossess the Equipment, Lessee shall remove all personal property from the Equipment, remove all obstacles from and around the Equipment which may prevent or impede the normal removal of the Equipment, and shall fully cooperate in the removal. Lessee shall pay any costs incurred by Owner above normal pickup charges, including the hourly rate in paragraph D.10. SHOULD LESSEE FAIL TO REMOVE SUCH PROPERTY WITHIN 72 HOURS FROM NOTICE, OWNER, MAY (I) CUT OR REMOVE ANY LOCK OR RESTRAINING DEVICE ON THE DOOR OF THE EQUIPMENT AND REMOVE ALL PROPERTY LOCATED THEREIN, WHICH OWNER MAY PLACE IN ANY AREA AT THE EQUIPMENT LOCATION WITHOUT LIABILITY OF ANY KIND, OR (II) REMOVE WITH THE EQUIPMENT ALL PROPERTY LOCATED THEREIN, WHICH OWNER MAY THEN SELL AND APPLY THE PROCEEDS OF ANY SUCH DISPOSAL FIRST TO THE COSTS OF REPOSSESSION AND SALE, NEXT TO ANY AMOUNTS PAYABLE BY LESSEE UNDER THIS AGREEMENT, AND FINALLY TO THE ACCOUNT OF LESSEE. ANY REMAINING AMOUNT OWNER WILL REFUND TO LESSEE. LESSEE AGREES OWNER SHALL NOT BE RESPONSIBLE IN ANY MANNER FOR ANY LOSS OR DAMAGE TO LESSEE'S PROPERTY RESULTING FROM ANY REPOSSESSION OR SALE, AND LESSEE RELEASES OWNER FROM ANY LOSSES OR CLAIMS BASED ON ANY DAMAGES WHATSOEVER TO ANY OF LESSEE'S PROPERTY STORED IN OR AROUND THE EQUIPMENT. If Owner reasonably believes the Equipment is in danger of being damaged, misappropriated, stolen, may be creating a risk or hazard to others, or Lessee is incapable or will not pay his bill or charges, then Owner may enter the Equipment location and immediately remove the Equipment without providing advance notice to Lessee.
14. Condition of Equipment
By taking possession and delivery of the Equipment, Lessee acknowledges and conclusively agrees the Equipment is free from flaws and defects except those listed on the Inspection and Acceptance form, and he has inspected the Equipment in detail, and it meets all specifications, requirements, and intended uses and purposes of Lessee.
15. Surrender of Equipment
Upon the expiration or sooner termination of this Agreement, Lessee shall surrender the Equipment to Owner empty of all contents and in good condition, broom cleaned, and suitable for immediate reuse by another lessee, ordinary wear and tear excepted. Owner shall inspect the Equipment upon its removal. Lessee shall be responsible for the prompt payment of all damages to the Equipment. If Lessee fails to clean the equipment, Owner may remove any property or rubbish left by Lessee and clean the Equipment. Lessee shall pay any costs incurred by Owner to repair, clean, or remove items from the Equipment.
Lessee shall not install any electrical system, or make any alterations or improvements to the equipment without written consent of Owner, and any such alterations or improvements so made shall become part of the Equipment and the property of Owner. It shall be the responsibility of Lessee to install and operate any electrical system according to the appropriate electrical code and to provide the proper electrical cycle, amperage, and wattage to the Equipment.
17. Maintenance and Repair
Lessee, at its sole expense, shall furnish all parts and labor to maintain the Equipment in good condition. It will be the sole responsibility of Lessee to routinely inspect the Equipment for damage to the Equipment and timely notify Owner in writing of necessary major repairs. Any major maintenance or repair shall be performed only by Owner. Owner may charge Lessee for any repair or maintenance performed to the Equipment during the term of this Agreement.
18. Disclaimer of Warranties and Exculpation
OWNER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE EQUIPMENT OR ITS SUITABILITY, DURABILITY, CONDITION, OR CAPACITY THEREOF. OWNER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INJURY TO LESSEE OR ITS AGENTS OR INVITEES OR FOR LOSS OF LESSEES PROFITS, DAMAGE TO PROPERTY STORED IN OR AROUND THE EQUIPMENT, LOSS OF BUSINESS, OR ANY OTHER DAMAGES, DIRECT OR INDIRECT, RESULTING FROM ANY DEFECT IN THE EQUIPMENT, OR DAMAGE CAUSED TO THE EQUIPMENT DURING TRANSPORT OR RELOCATION.
Lessee agrees to indemnify and hold harmless Owner, its agents, and assigns, against, all losses and demands, legal or otherwise, (including court costs and attorney's fees) of whatsoever kind arising from the Equipment's use or condition.
Lessee shall keep the Equipment free and clear of any liens or encumbrances whatsoever. If any such lien or encumbrance is claimed by any other party, Lessee shall take all action necessary to remove such lien or encumbrance.
21. Payments by Owner
Should Lessee fail to pay any sum to a third party as required under this Agreement, or should a third party claim any sum from Lessee which effects title or possession of the Equipment, Owner shall have the right to pay such amount without notice to Lessee and without releasing Lessee from any obligation hereunder. Any such amount paid by Owner shall immediately become due and payable by Lessee.
Any one or more of the following events shall constitute an event of default under this Agreement: (i) Lessee fails to make any payment when due; (ii) Lessee fails to perform or observe any covenant or condition to be performed by it hereunder; (iii) Any representation or warranty made by Lessee in connection herewith shall prove to be incorrect at any time in any respect; (iv) Lessee makes an attempt to sell or move Equipment; or (v) Equipment or any part thereof becomes subject to any levy by any officer or any public official, or if any writ or warrant shall be levied on the Equipment.
If any default occurs under this Agreement, Owner may pursue any one or more of the following remedies: (i) Enter the Equipment location and take possession thereof, removing any property therein, without notice and without court order or other legal process. Lessee waives any claims of trespass and any damages caused by such taking of possession. Such taking of possession shall not constitute termination of this Agreement unless Owner gives Lessee written notice. Owner may then attempt in the normal course of its business to release the Equipment for Lessee's account, and Lessee shall continue to be liable for any amount by which rent and other charges due hereunder to the end of the term exceed the amount of rent actually received by Owner for the rental of the Equipment. (ii) Terminate this Agreement and recover from Lessee a sum equal to the loss value of the equipment, (iii) Bring legal action to recover all amounts then accrued or thereafter accruing under this Agreement; (iv) Pursue any other right or remedy which Owner may have at law or in equity. If Owner takes any action whatsoever to enforce the provisions of this Agreement, and whether or not suit is initiated, Lessee shall pay Owner all expenses, including attorneys' fees, incurred by Owner in the enforcement of this Agreement.
Lessee shall not, without written consent of Owner, assign this Agreement, the Equipment, or permit it to be used by anyone other than Lessee or Lessee's employees. Owner my assign or transfer any right or duty hereunder, either in whole or in part.
25. Ownership of Equipment
The equipment is and shall be the exclusive property of Owner, even if the Equipment is attached to or permanently rests upon real property or any building thereon. Lessee shall have no title or interest in the Equipment except such rights as are created hereunder.
26. Affixation to Realty. The Equipment shall not be affixed to real property without the written consent of Owner, and the Equipment shall remain personal property despite any such attachment.
AS OWNER IS NOT LIABLE FOR ANY DAMAGE TO LESSEE'S PROPERTY STORED IN OR AROUND THE EQUIPMENT, LESSEE IS ADVISED TO PROVIDE INSURANCE FOR LEESSEE'S BENEFIT FOR THE VALUE OF LESSEE'S PROPERTY STORED IN THE EQUIPMENT. Owner shall provide workman's compensation, property damage, and public liability insurance covering the operations of Owner in connection with the Equipment.
28. Other Documents
Lessee agrees to execute and acknowledge any other document requested by Owner to evidence the ownership of the Equipment or the stature of this Agreement.
If this Agreement is initially executed as or becomes month-to-month, then this Agreement may be modified by Owner mailing to Lessee a copy of the amended or added provision, which amendment or addition shall be come effective on the first day after the next periodic payment date after the date of mailing by Owner. Upon notice of any such proposed amendment, Lessee shall have the right to terminate this Agreement on the next periodic payment date, as set forth in Paragraph D3 which is concurrent with the effective date of the amendment, by giving Owner written notice of such termination prior to any such periodic payment date. Should Lessee fail to terminate this Agreement on any such date, then the Agreement shall continue in full force and effect as amended by Owner.
Any waiver or consent of Owner of any condition under this Agreement must be in writing and signed by Owner and shall be effective only to the intent specifically set forth therein. No delay to exercise any remedy accruing to Owner upon any default by Lessee under the lease hereunder shall impair any remedy of Owner, nor shall it be construed to be a waiver of any such default or an acquiescence or waiver therein to any similar default thereafter occurring.
31. Applicable Law
The parties agree any action to enforce this Agreement shall be commenced and maintained in Missoula County, Montana. This Agreement shall be construed under the laws of the State of Montana.
Any notice to be delivered hereunder will be deemed to be given when delivered in person or when mailed by first class, registered, or certified mail to Owner at the address in Paragraph A or to Lessee at the address in Paragraph C.
This Agreement and any attachment executed by the parties constitute the final and complete understanding of the parties with regard to this subject matter, and no other representation or covenant has been made except those expressly in this Agreement. Except as provide in Paragraph 29, this Agreement may be amended only upon the written consent of both parties hereto.
34. Time of Essence
Time is of the essence for all terms of this Agreement.
If any part of this Agreement is found to be unenforceable, then the remaining provisions may nonetheless be enforced according to their own terms without regard to the unenforceable provision.
36. Force Majeure
Owner shall not be liable to Lessee for any damages resulting from any act beyond the control of Owner, including but not limited to acts of God, road hazards, accidents, inability to obtain materials or supplies, labor disputes, or malfunctioning equipment.