For Loss Damage Waiver Terms
and Conditions...click here.
For Wear and Damage Agreement...click here.
The following terms and conditions shall apply to any and all rentals
of Units by Cleveland Brothers Equipment Co., Inc. (“Cleveland
Brothers”) to any customer (“Customer”) as of November
29, 2004, unless Cleveland Brothers and Customer agree in writing to
amend, modify, or supplement these terms and conditions.
1. Definitions.
a. “Master Rental Agreement”
shall mean any Master Rental Agreement between Cleveland Brothers and
Customer pursuant to which Customer may rent Units from time to time
for periods of less than thirty (30) days.
b. “Order” shall mean
any notice pursuant to a Master Rental Agreement from a Customer to
Cleveland Brothers, which may be oral or written; may be communicated,
without limitation, by telephone, fax, or e-mail; and shall specify,
at a minimum, the make and model of each Unit to be rented, the Job
Site to which the Unit is to be delivered, the Start Date, the term
of the rental, and whether or not Lessor is electing Cleveland Brothers’
LDW.
c. “Rental Agreement”
shall mean any Rental Agreement between Cleveland Brothers and Customer
pursuant to which Customer rents identified equipment for periods of
thirty (30) days or more.
d. “Unit” shall mean
each piece of equipment rented by Cleveland Brothers together with all
present and future attachments, accessories, replacement parts, repairs,
additions and safety devices, whether installed by or at the expense
of Lessor or Lessee, and all proceeds of the foregoing.
2. Allocated
Hours.
a. Units may be rented on a daily,
weekly, or monthly basis, and maybe operated for a corresponding number
of hours (the “Allocated Hours”). Units rented on a daily
basis maybe operated for up to 8 hours per day; Units rented on a weekly
basis maybe operated for up to 40 hours per week; and Units rented on
a monthly basis maybe operated for up to 176 hours per month. In the
event that any Unit is operated for more than its Allocated Hours (as
indicated by the Unit’s service meter), Customer shall pay, in
addition to the Rent, an hourly overtime charge equal to:
(1)
if such Unit has been rented on a daily basis, 1/8 of the daily Rent;
(2)
if such Unit has been rented on a weekly basis, 1/40 of the weekly Rent;
and
(3)
if such Unit has been rented on a monthly basis, 1/176 of the monthly
Rent.
b. Customer shall pay Rent, on a
Unit by Unit basis, from the date a Unit is shipped by Cleveland Brothers
(the “Start Date”) until the date that Customer receives
a release number from Cleveland Brothers (the “End Date”),
even if Customer operates any such Unit for less than the full number
of Allocated Hours.
3. Payment
Terms. Cleveland Brothers offers various payment terms based
on the Units being rented, the term of the rental, the creditworthiness
of the customer, and other factors. The payment terms applicable to
any rental shall be summarized on the Front of Customer’s Rental
Agreement, if applicable, or shall be as follows.
a. Approved Credit. If Customer
has been approved for credit by Cleveland Brothers, Cleveland Brothers
shall invoice Customer for all Rent and other charges in arrears at
the end of each 28-day cycle. Payment shall be due upon Customer’s
receipt of Cleveland Brothers’ invoice.
b. Advance Payment. If Customer
has not been approved for credit by Cleveland Brothers, Customer shall
pay the entire estimated Rent and all other charges in cash prior to
delivery of any Unit.
Customer shall pay interest at 18% per year (or if less, the maximum
rate permitted by law) on any amount due under this Agreement and unpaid
from the date such amount is due until the date it is paid.
4. Availability.
Cleveland Brothers does not guarantee the availability of any specific
Unit or any type of Unit. In addition, Cleveland Brothers reserves the
right to replace any Unit with similar equipment at any time for any
reason, including, without limitation Cleveland Brothers’ convenience.
5. Shipping.
Each Unit shall be delivered to the site designated by Customer (the
“Job Site”) in the Rental Agreement or Order for such Unit.
Unless otherwise specified, either orally or in writing, by Cleveland
Brothers and Customer, Cleveland Brothers or its designated carrier
shall transport (including mobilization, demobilization, assembly, and
disassembly) each Unit to its respective Job Site. Customer shall be
solely responsible for all freight, shipping and other transportation
charges. Customer shall have the right to inspect each Unit at the time
and place of delivery before accepting it. In the event that Customer
does not notify Cleveland Brothers of its rejection of any Unit within
24 hours of delivery (excluding weekends and holidays), Customer shall
be deemed to have inspected the Unit fully, concluded that the Unit
is in good condition, repair, and full compliance with the terms of
the applicable Rental Agreement or Order, and accepted the Unit.
6. Loss
of Unit(s). If any Unit is totally lost (including by theft)
or destroyed or if it becomes a constructive, agreed or compromised
total loss, Customer shall pay Cleveland Brothers, on demand, the fair
market value of such Unit on the Start Date of its rental period (the
“Fair Market Value”); and until Customer pays the Fair Market
Value payment to Cleveland Brothers, Customer shall continue to pay
the Rent for such Unit in accordance with the applicable rental agreement
and these terms and conditions. Without relieving Customer of its obligation
to pay the Fair Market Value and without deferring that obligation,
Cleveland Brothers will offset against the Fair Market Value and any
other amounts payable to Cleveland Brothers, any payment which Cleveland
Brothers receives on account of such total loss or such constructive,
agreed or compromised total loss under any insurance policy maintained
by Customer. Upon receipt of payment of the Fair Market Value and the
payment and performance by Customer of all of its other obligations
under the applicable Rental Agreement or Order and these terms and conditions,
Cleveland Brothers will transfer and assign to Customer, without recourse,
any remaining rights which Cleveland Brothers has under such insurance
and, to the extent permitted by the insurer in writing, any title and
interest which Cleveland Brothers has in such Unit. Cleveland Brothers’
transfer of any title and interest in any Unit will be “AS IS,
WHERE IS”, and without any warranty of any kind. CLEVELAND BROTHERS
DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR PARTICULAR PURPOSE. No agent, employee or representative
of Cleveland Brothers has any authority to bind Cleveland Brothers to
any warranty concerning any Unit transferred under this section of the
terms and conditions. Customer acknowledges that Cleveland Brothers
is not the manufacturer of the Units.
7. Purchase
Option.
a. If Cleveland Brothers and Customer
have agreed in writing to a purchase option and an option price (“Option
Price”) with respect to any Unit and, provided that Customer is
not in default under the applicable Rental Agreement or Order or any
other agreement between Cleveland Brothers and Customer, Customer may
exercise its purchase option by notifying Cleveland Brothers in writing
of its election to purchase the Unit to which the purchase option applies
at any time prior to the End Date of such Unit’s rental period.
b. Customer shall pay interest on
the unpaid balance of the Option Price at the rate set forth in the
applicable Rental Agreement or Order. Any reference to “Prime”
shall mean the prime rate established by Cleveland Brother’s commercial
lender as of the first of each calendar month, as that rate may change
from time to time. In the event that Customer exercises a purchase option,
interest shall be deemed to have accrued from the Contract Date. One
hundred percent (100%) of Customer’s payments of Rent (but not
other fees and charges) shall be applied first to interest and then
to payment of the Option Price.
c. Cleveland Brothers shall transfer
ownership of any Unit with respect to which Customer has exercised a
valid purchase option to Customer upon Customer’s payment of the
Option Price. Cleveland Brothers’ transfer of any title and interest
in any Unit will be “AS IS, WHERE IS”, and without any warranty
of any kind. CLEVELAND BROTHERS DISCLAIMS ALL WARRANTIES, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR
PURPOSE. No agent, employee or representative of Cleveland Brothers
has any authority to bind Cleveland Brothers to any warranty concerning
any Unit transferred under this section of the terms and conditions.
Customer acknowledges that Cleveland Brothers is not the manufacturer
of the Units.
8. Repair
and Maintenance.
a. Customer shall maintain the Units
in proper condition, including, but not limited to (as applicable) providing
fuel, engine oil, hydraulic oil, water, filters, lube, ground engaging
tools, batteries, and anti-freeze, and replacing broken glass, making
adjustments for damaged tires and pre-mature undercarriage wear, and
replacing teeth and cutting edges, sheet metal, catwalks, tires, axles,
gauges, and wear materials, including, without limitation, liners, jaw
dies, and screen cloths. Customer shall inspect all Units daily for
leaks, damage, and maintenance requirements.
b. Customer shall not make any modifications
or additions to or changes in any Unit except with Cleveland Brothers’
written consent. Cleveland Brothers shall perform any and all repairs
to the Units. Customer shall pay for all repairs to the Units at Cleveland
Brothers’ prevailing rates unless such repairs are necessitated
by ordinary wear and tear. Customer shall pay a reasonable adjustment
for damaged tires.
9. Insurance.
a. Customer shall obtain and maintain
property insurance, insuring all Units against “all risk,”
for an amount not less than the replacement cost of all Units, and commercial
general liability insurance in amounts satisfactory to Cleveland Brothers,
naming Cleveland Brothers, its successors and/or assigns additional
insured and loss payee at its interest may appear, and requiring 30
days notice to Cleveland Brothers of any cancellation, non-renewal,
or material change in coverage. All insurance policies shall be with
carriers acceptable to Cleveland Brothers. Customer shall comply with
all terms of any insurance policy and shall notify Cleveland Brothers
in writing immediately upon the occurrence of any loss, theft, destruction
or damage of any Unit.
b. Unless Customer provides Cleveland
Brothers with a certificate of insurance or other evidence acceptable
to Cleveland Brothers of the property insurance coverage described in
section 9.a of these terms and conditions, Customer shall pay Cleveland
Brothers for a loss damage waiver (“LDW”) for physical damage,
on a Unit by Unit basis. Even if Customer pays for the LDW, Customer
will be responsible to pay for all damage not covered by the LDW and
Customer will be responsible to pay for any damage up to the amount
of the LDW deductible which shall be equal to 2% of the value of the
Unit, but not less than $1,500 or more than $5,000. The fee for any
LDW shall be 14% of the Rent plus sales tax.
10. Assignment, Subletting or Lending.
Customer shall not: (i) assign, encumber, sublet, or otherwise transfer
any Unit; (ii) assign or delegate any of its obligations under any agreement
between Customer and Cleveland Brothers; or (iii) lend or otherwise
permit any Unit to be used by anyone other than Customer or its employees.
Notwithstanding 13 Pa.C.S. § 2A303(l)(b), the parties expressly
agree that Cleveland Brothers may sell any Unit or encumber its interest
in any Unit with one or more security interests, even if such sale or
security interests materially change the duty or materially increase
the risk of the Customer, and in such event Customer’s rights
to use and possession of such Units shall be subject and subordinate
to the interest of the buyer or the holders of the security interests.
Customer shall not assert against any buyer or secured creditor of Cleveland
Brothers, to the extent authorized under 13 Pa.C.S. § 9206(a),
any defense Customer may have against Cleveland Brothers.
11. Uniform
Commercial Code. Customer authorizes CB to file and re-file,
at Customer’s expense, UCC Financing Statements (Form UCC1) or
such other documents to evidence CB’s interest in the Units and
the lessor/lessee relationship.
12. Return
of Equipment. On or before each End Date, Customer shall redeliver
such Unit to Cleveland Brothers by common carrier selected by Cleveland
Brothers to Cleveland Brothers’ location. Each Unit shall be redelivered
full of fuel, in good, clean, and uncontaminated condition, free of
hazardous substances, and in the same condition in which it was received
by Customer (together with all attachments, accessories, replacement
parts, repairs, additions and safety devices, whether installed by or
at the expense of Cleveland Brothers or Customer, and all proceeds thereof),
except for ordinary wear and tear from normal use and operation, as
determined by Cleveland Brothers. If the Unit is not redelivered in
such condition, Customer shall pay all costs of repairing and/or cleaning
the Unit. If the Unit is not delivered full of fuel, Customer shall
pay Cleveland Brothers’ refueling charge in an amount equal to
$5.95 per gallon.
13. Additional
Obligations of Customer. By renting or leasing any Unit, Customer
covenants and agrees with Cleveland Brothers that Customer shall:
a. operate each Unit in a careful
and proper manner, consistent with its capacity and design;
b. provide a skilled or, if required
by law or regulation, licensed operator for each Unit, who shall be
an employee of Customer or, if Customer is an individual, may be Customer
(Customer shall be solely responsible for all wages, taxes, insurance,
and benefits related to Customer’s employment of operators);
c. provide additional safety guards
or devices not included with any Unit, which may be required by federal
or state law, and any rule or regulation issued thereunder;
d. use each Unit solely for its
intended purpose and in accordance with all applicable laws (including
OSHA), rules and regulations, any applicable insurance policies, and
NFPA codes and standards, including the NEC;
e. immediately notify Cleveland
Brothers of all mechanical failures, damage to the Unit and other conditions
requiring repair;
f. notify Cleveland Brothers of
any accidents, injuries, or damage to property involving any Unit;
g. if required, acquire any license
with respect to any Unit;
h. pay any license or registration
fees applicable to its use or possession of the Unit and any fines or
other charges resulting from the violation of any license or registration
requirement or any law, rule or regulation;
i. pay promptly when due all taxes
and assessments (including penalties and interest) upon the Units or
Customer’s use or possession of the Units, except that Customer
shall not be responsible for any federal or state income or franchise
taxes imposed on Cleveland Brothers;
j. keep each Unit at its respective
Job Site, and not move any Unit from its respective Job Site without
Cleveland Brothers’ prior written consent;
k. if any Unit is stationary, ensure
that such Unit is operated level at all times, and check the cribbing
and support level every day prior to operating the Unit;
l. maintain all Units in good operating
condition and adjustment (including providing fuel, oil, filters, lubricants,
ground engaging tools, antifreeze and replacement glass); and
m. allow Cleveland Brothers to inspect
any Unit at any time and, if necessary, provide Cleveland Brothers with
access to any Job Site for such purpose.
14. Notices.
Unless provided otherwise in a Rental Agreement, all notices to Cleveland
Brothers shall be addressed as follows:
Attn.: Rental Department
Cleveland Brothers Equipment Co.,
Inc.
5300 Paxton Street
Harrisburg, PA 17111
Fax: 717.564.6931
E-mail: rentals@clevelandbrothers.com
All notices to Customer shall be addressed as specified in the applicable
rental agreement. Cleveland Brothers and Customer may change their addresses
by notice to the other party. Notices shall be deemed given on the date
and at the time shown on the confirmation or receipt (if delivered by
electronic mail or facsimile), on the date and at the time (if recorded)
of delivery by the commercial delivery service, as shown in the records
thereof (if delivered by commercial overnight or same-day delivery service),
or on the date shown on the return receipt (if delivered by registered
or certified mail).
15. Tax
Exempt Customers. If applicable, Customer shall be responsible
for providing a properly completed Tax Exemption form to Cleveland Brothers
upon execution of any Rental Agreement or Order. If a valid Tax Exemption
form is not provided, Customer will be responsible for sales tax.
16. Default
and Remedies.
a. “Default” by Customer
shall occur: (i) if there is any misrepresentation made by, or breach
of any warranty of, Customer contained in any agreement between Customer
and Cleveland Brothers; (ii) upon the breach by Customer of any covenant
or agreement of Customer contained in any agreement between Customer
and Cleveland Brothers or any applicable term or condition indicated
on this Web Site; (iii) if bankruptcy, insolvency, receivership, liquidation
or dissolution proceedings are instituted by or against Customer, Customer
makes any assignment for the benefit of creditors, Customer is unable
to pay its obligations as they become due, or Cleveland Brothers, in
good faith, believes that the prospect of payment of Rent or other charges
due under any agreement between Customer and Cleveland Brothers is impaired
or Cleveland Brothers deems itself insecure; or (iv) if any Unit is
seized under legal process or becomes subject to a lien, claim or encumbrance
asserted by or through Customer or any of its creditors.
b. Upon a Default by Customer, Cleveland
Brothers, at its discretion, may take one or more of the following actions:
(i) terminate any agreement between Customer and Cleveland Brothers;
(ii) perform any obligations to be performed by Customer under any agreement
between Customer and Cleveland Brothers on Customer’s behalf and
receive from Customer, on demand, reimbursement of any and all amounts,
including reasonable attorneys’ fees, incurred by Cleveland Brothers
in performing such obligations; (iii) upon written notice to Customer,
accelerate payment of all present and future Rent, and receive from
Customer the accelerated Rent immediately upon delivery of such notice;
(iv) exercise any and all remedies afforded by Division 2A of the Pennsylvania
Uniform Commercial Code; (v) require Customer, at its expense, to immediately
redeliver any or all Units to Cleveland Brothers in accordance with
Cleveland Brothers’ instructions; (vi) enter upon Customer’s
premises or any or all job sites to take possession of, assemble and
collect any or all Units or to render them unusable; (vii) waive any
default or remedy any default under any agreement between Customer and
Cleveland Brothers without waiving the default remedied and without
waiving any other prior or subsequent default; (viii) repossess any
or all Units without notice, legal process, prior judicial hearing,
or liability for trespass or other damage, Customer voluntarily and
knowingly agreeing to and waiving the same; (ix) if Cleveland Brothers
is unable to repossess any or all Units, declare such Units to be a
total loss and require Customer to purchase such Units for their fair
market value on the Start Dates of their respective rental periods;
or (x) exercise any and all remedies available at law or in equity.
Customer shall reimburse Cleveland Brothers for all costs, including
reasonable attorneys’ fees, incurred by Cleveland Brothers as
a result of any Default by Customer or otherwise enforcing any agreement
between Customer and Cleveland Brothers. In any proceeding by Cleveland
Brothers to recover possession of a Unit or Units, Cleveland Brothers
shall not be required to post a bond or other security or undertaking,
and Customer hereby waives any right to require, and any requirement
for, any such bond or other security or undertaking.
17. Miscellaneous.
No provision of any agreement between Customer and Cleveland Brothers
and no right or obligation of either party under any such agreement
may be waived except by an instrument in writing signed by the waiving
party. No waiver of any default, remedy or course of conduct shall operate
as a waiver of any other prior or subsequent default, whether of the
same or a different nature. All agreements between Customer and Cleveland
Brothers shall be governed by the laws of the Commonwealth of Pennsylvania
and, specifically, Division 2A of the Pennsylvania Uniform Commercial
Code, 13 Pa.C.S. § 2A101 et seq. Whenever a term defined by the
Pennsylvania Uniform Commercial Code is used in this Agreement, the
definition contained in the Code shall control. “Cleveland Brothers,”
“CB” and “Customer” as used in Cleveland Brothers’
standard forms of agreement shall include their successor and assigns.
Customer agrees that any claims made by Customer shall be filed in the
Court of Common Pleas of Dauphin County, Pennsylvania or the U.S. District
Court for the Middle District of Pennsylvania, which Courts shall have
nonexclusive jurisdiction of all such claims. Customer shall not assert
that either of such Courts lacks personal jurisdiction over the Customer
or request a transfer of venue from either of such Courts on the basis
of improper venue or inconvenience. Customer consents to the transfer
to either of such Courts, at Cleveland Brothers’ request, of any
claim, action or proceeding brought in any other court, forum or arbitral
tribunal. If any provision of any agreement between Customer and Cleveland
Brothers or the application of any such provision to any person or circumstance
is held invalid, the remainder of such agreement, and the application
of such provision other than to the extent it is held invalid, will
not be invalidated or affected thereby. The terms and conditions set
forth on this Web Site are intended by the parties to be incorporated
into their agreements. Acceptance or acquiescence in a course of performance
rendered shall not be relevant to determine the meaning of any agreement
between Customer and Cleveland Brothers even though the accepting or
acquiescing party has knowledge of the nature of the performance and
opportunity for objection. Any agreement between Customer and Cleveland
Brothers may be amended only by an instrument in writing signed by Cleveland
Brothers and Customer.
