Distributed Power Solutions, LLC RENTAL AGREEMENT TERMS & CONDITIONS
a. “Lessee” shall mean the party to this contract identified herein other than the Distributed Power Solutions, LLC entity identified on the face of this Agreement.
b. “Lessor” shall mean Distributed Power Solutions, LLC or its affiliate entity identified on the face of this Agreement.
2. RENTAL PERIOD: The rental period (“Rental Period”) shall commence from the date of shipment of the rental equipment, accessories and related spare parts and supplies covered by this Agreement (collectively, the "Equipment") from the point of shipment (the “Shipment Location”) and shall continue until Lessee’s receipt of an off rent confirmation notice. Provided, however, for all rentals in which Lessee is responsible for arranging freight, the rental shall not terminate until return to Lessor’s yard (the “Return Point”). The Rental Period shall not be subject to pro-ration.
3. PURCHASE ORDER REQUIRED: A valid purchase order, acknowledged in writing by both Lessor and Lessee (a “Purchase Order” and together with these Terms & Conditions, all attachments hereto and thereto, and any related agreements to which these Terms & Conditions are incorporated, the “Agreement”), is required as a condition of this Agreement and all agreements for rental by Lessor of any Equipment. All purchase orders are subject to Equipment availability. In the event Equipment included in a purchase order is determined by Lessor to be unavailable, Lessor shall, within 48 hours of acknowledgement by Lessee, give written notice of termination of the purchase order as to the unavailable equipment with no damage or penalty to be paid to Lessee.
4. DETERMINATION OF RENTAL CHARGES: Lessee shall pay for the Rental Period on each piece of Equipment named in the list of equipment in this Agreement, including any parts encompassed thereby, at the rate herein stipulated (the “Rental Rate”). A Rental Rate is for a minimum Rental Period of one week; any portion of a week will be charged as a full week. A month is defined as a period of twenty-eight (28) days. Unless otherwise agreed in writing, all Rental Rates are based on a shift system, single shift is defined as eight (8) hours in a day, forty (40) hours in a week or one hundred sixty (160) hours in a twenty-eight (28) day month. Double shift is defined as eighty (80) hours in a week or three hundred twenty (320) hours in a twenty-eight (28) day month. Triple shift is unlimited hours in a twenty-eight (28) day month.
5. PAYMENT: All Rental Rates and other charges due under this Agreement are due and payable within 30 days from the date of invoice, provided applicable credit limits are approved by Lessor, failing which Rental Rates shall be due and payable in advance on a weekly basis to Lessor at the address set forth in this Agreement and in which case payment for the minimum Rental Period shall be due before the delivery of the Equipment to Lessee or the latter's agent or carrier, unless otherwise agreed in writing. In addition to its termination rights, Lessor, in Lessor’s sole discretion, may change payment terms to advance billing and payment due upon receipt, if Lessee becomes delinquent on any payments due and owing, under this Agreement or any other rental agreement. All overdue payments, for all charges, including damages and losses, shall bear interest at the lesser of 18% per annum or the highest amount otherwise allowed by law without prejudice to Lessor's rights and in particular without prejudice to Lessor's right contained in Section 17 to terminate this Agreement for nonpayment of Rental Rates. Any invoicing requirements of Lessee must be provided in advance of the rental or will be deemed waived.
6. LOADING, UNLOADING AND TRANSPORTATION: Lessee shall bear the expense of and responsibility for unloading and reloading the Equipment at Lessee’s receiving point (the “Receiving Point”), including all injuries and damages resulting therefrom, and shall pay all demurrage charges incurred at the Receiving Point and the Return Point . Lessee shall be responsible for shipping expenses from the Shipment Location to the Receiving Point and all return shipping expenses to the Return Point or such other point as Lessor shall in writing direct, regardless of whether these costs are advanced by Lessor. However, if Lessor directs Lessee in writing to return all Equipment to a place other than the Return Point, then Lessee shall pay the shipping expenses up to but not beyond the amount that would have been required to return the Equipment to the Return Point. Lessee must have an authorized agent available to sign a bill of lading upon delivery of the Equipment by the carrier. If no agent is provided at the time of delivery, Lessee authorizes Lessor’s employee to execute the bill of lading as Lessee’s agent and such execution shall be deemed an acceptance of the condition of the Equipment upon delivery, and for all losses occurring to the Equipment thereafter until the expiration of the Rental Period, except as expressly set forth in Section 20 below.
7. RECALLING AND RETURNING NOTICE: Lessor may recall any or all Equipment upon thirty (30) days written notice to Lessee and Lessee may return any or all Equipment upon like notice to Lessor. In the event of recall, Lessee shall remain responsible for any loading, unloading, and transportation costs, and all other liabilities described in Section 6.
8. MAINTENANCE, OPERATION AND REPAIRS: Unless otherwise agreed upon in writing, Lessee shall not make any alterations, additions, or improvements to the Equipment without Lessor's prior written consent. Lessee shall at its own expense operate, maintain, and keep in good repair the Equipment and return it in the same condition in which it was received. Specifically, Lessee must:
(a) Ensure that the Equipment is operated only by qualified personnel in accordance with applicable manufacturer's guidelines and instructions.
(b) Ensure that the Equipment is used only for its intended purposes and only for applications within the capacity ratings of the Equipment.
(c) Comply with all applicable federal, state, and local laws and regulations in connection with Lessee possessing, operating, handling, repairing, maintaining, packaging and transporting the Equipment.
(d) Inspect the Equipment on a regular basis, which shall be no less frequently than as directed by the manufacturer’s guidelines and instructions.
(e) Supply all fuel, coolants, and lubricants necessary to operate the Equipment in accordance with this Section 8 and prudent industry practices.
(f) Immediately notify Lessor of any known problems or malfunctions or suspected malfunctions or problems or those that should reasonably be known or suspected upon
(g) regular inspection that are necessary to keep the Equipment in good running order.
(h) Perform all routine and minor repairs and maintenance necessary to keep the Equipment in good running order, unless otherwise agreed in writing. All repairs and maintenance shall be performed only with new original equipment manufacturer (“OEM”) parts, and in accordance with the manufacturer’s guidelines and instructions.
(i) Replace all broken or worn out parts on the Equipment with new OEM parts, unless otherwise agreed in writing, and notify Lessor immediately of any broken or worn out parts on the Equipment.
(j) Return the Equipment in a clean and unmarred condition.
9. INSPECTION: Before the Equipment is loaded for transit to Lessee, Lessee may require an inspection thereof by a qualified inspector. If Lessee does not inspect the Equipment before it is loaded for transit, then Lessee is conclusively deemed to have accepted that the Equipment is in good running order without broken or worn out parts and in a clean and unmarred condition. Lessor shall have the right at any time and from time to time to enter the premises occupied by the Equipment and shall be given free access thereto and afforded necessary facilities for the purpose of inspection and removal.
10. DAMAGE TO EQUIPMENT: Lessee shall be liable to Lessor for all loss or damage to the Equipment during the Rental Period, regardless of the cause or origin of such loss or damage, except as limited by Section 20. Subject to the provisions of Section 9 hereof, Lessee shall advise Lessor within seven (7) days of the receipt of the Equipment of any shortages or damage claim; Lessee’s failure to notify Lessor in writing within such seven (7) day period shall be deemed Lessee’s acceptance of the Equipment in good condition and Lessee’s waiver of any shortages or any claims to the contrary. Lessee shall immediately notify Lessor in writing of any partial loss or damage to the Equipment. Lessee shall be liable to Lessor for all additional and/or consequential damages incurred by Lessor as a result of Lessee’s delay in providing such notice. The repair of the damaged Equipment is governed by Section 20.
11. INDEMNIFICATION: LESSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD LESSOR AND LESSOR’S AFFILIATES, AND EACH OF THEIR RESPECTIVE MEMBERS, PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES (COLLECTIVELY, THE “LESSOR PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, LIABILITIES, LAWSUITS, CAUSES OF ACTION, JUDGMENTS, PENALTIES AND/OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, COURT COSTS AND OTHER COSTS OF SUIT) OF ANY KIND OR NATURE ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT, UNLOADING, OPERATION, USE, MAINTENANCE, REPAIR, STORAGE, HANDLING, RELOADING AND/OR SHIPMENT OF THE EQUIPMENT, BUT ONLY TO THE EXTENT CAUSED BY THE NEGLIGENCE OR FAULT OF LESSEE AND/OR ANY THIRD PARTY FOR WHOSE ACTS LESSEE MAY BE RESPONSIBLE OR LIABLE (EACH, A “LESSEE PARTY”). LESSEE FURTHER EXTENDS TO LESSOR PARTIES, TO THE GREATEST POSSIBLE EXTENT PERMITTED BY LAW, IMMUNITY FROM SUIT AS TO ANY AND ALL CLAIMS FOR PERSONAL INJURY OR DEATH WHICH RISE OUT OF THE OPERATION OR FAILURE OF ANY EQUIPMENT OR LABOR FURNISHED BY LESSOR PARTIES TO A LESSEE PARTY UNDER THIS AGREEMENT. IN ANY AND ALL CLAIMS AGAINST ANY LESSOR PARTY BY ANY LESSEE PARTY, THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION 11 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR A LESSEE PARTY UNDER WORKMAN’S OR WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS.
12. INSURANCE: Lessee shall at Lessee's own expense and for the entire the Rental Period maintain: (i) commercial general liability insurance to protect Lessee and the Lessor Parties against damage to property or persons from the operation, handling and use of the Equipment during the Rental Period with minimum coverage of $1,000,000 per occurrence and a $2,000,000 general aggregate, (ii) commercial auto insurance to protect Lessee and the Lessor Parties against damage to property or persons from transportation-related loses with minimum coverage of $1,000,000 per occurrence and a $2,000,000 general aggregate; (iii) special form property insurance covering the Equipment at the replacement value identified on the Purchase Order or applicable bill of lading (the “Replacement Value”); (iv) if Lessee is hauling the Equipment, all-risk cargo insurance, at the Replacement Value, (v) workers compensation insurance for its employees in amounts required by the laws of the state in which the work is performed, and (vi) such other insurance as may be requested by Lessor in advance of shipment by Lessor to Lessee. Lessee
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