8616 Cherry Avenue, Fontana, California
1. DEFINITIONS
“Agreement” means the Reservation Details (as defined below), together with the Rental Protection Plan and any associated Rental and Service Agreement (as defined below), including these Rental and Service Terms which are incorporated by reference therein.
“Customer” means the person or entity identified in the Reservation Details or any representative, agent, officer or employee of Customer.
“Authorized Individuals” are those individuals that Customer directly or indirectly allows to use the Equipment, who must be properly trained to use the Equipment, at least 18 years old or the legal age of majority in the state, whichever is greater and are not under the influence of any drugs, alcohol, substances or otherwise impaired. All Authorized Individuals must have a validly issued operator’s license that is in English or an International Driving Permit (IDP) for customers with a validly issued license that is not in English, and relevant experience and training to operate the Vehicles and/or Equipment.
“Environmental Services Charge” is the charge described in Section 21.
“Equipment” is the equipment and/or services provided, together with all replacements, repairs, additions, attachments and accessories and all future Equipment rented.
“RPP” is the rental protection plan described in Section 14.
“Site Address” is the location that Customer represents the Equipment will be located during the Rental Period.
“Store” is the HIH Rentals address set forth in the Rental and Service Agreement.
“Rental Period” commences when the Equipment is delivered to Customer or the Site Address and continues until the Equipment is returned to the Store or picked up by HIH Rentals during normal business hours, provided Customer has otherwise complied with this Contract.
“Rental and Service Agreement” is the agreement made between Customer and HIH Rentals for Equipment rent and/or provided Services, whether that Agreement is made in person at the Store Location, online, or at the time of Equipment Delivery, and which incorporates by reference these Rental and Service Terms and which identifies the Equipment to be rented by Customer. The Agreement incorporates these Rental and Service Terms by reference.
“One Shift” means no more than 8 hours per day, 40 hours per week and 160 hours every 4-week period, provided that double shift will be 150% and triple shift will be 200% of the rental charge on Equipment with hour meters.
“HIH Rentals” is Hand in Hand Rental Inc and its affiliated companies, their respective officers, directors, employees and agents.
“Incident” is any fine, citation, theft, accident, casualty, loss, vandalism, injury, death or damage to person or property, claimed by any person or entity that appears to have occurred in connection with the Equipment.
“Lost” means the Equipment is either stolen, its location is unknown, or Customer is unable to recover it for a period of 30 days.
“Ordinary Wear and Tear” means normal deterioration considered reasonable in the equipment rental industry for One Shift use.
“FMV” is the Equipment’s fair market value on or about the date of the Incident relating to the Equipment, plus any administrative fees and expenses.
“Party” means HIH Rentals or Customer and together both are the “Parties”.
“Service” or “Services” means the delivery, pick up and repair of Equipment and other services provided by HIH Rentals in connection with the rental of Equipment, including Trench Services, Scaffolding Services, Portable Sanitation Services, Fluid Solutions Services, Power and HVAC Services and Tool Services.
2. TERMS
Customer’s execution of this Contract or taking possession of the Equipment (whichever occurs first) shall be deemed acceptance of the terms herein for this and all past and future contracts between HIH Rentals and Customer upon Customer’s receipt of Equipment under those contracts. Customer rents the Equipment from HIH Rentals pursuant to this Contract, which is a true lease. The Equipment is and shall remain the property of HIH Rentals and shall not be affixed to any other property. Customer shall not pledge or encumber the Equipment in any manner.
3. AUTHORITY TO SIGN
Any individual signing the Agreement represents and warrants that he or she is of legal age and has the authority and power to sign this Agreement on behalf of Customer.
4. INSPECTION OF EQUIPMENT
Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer’s needs. Customer further acknowledges that Customer has inspected the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or public road prior to taking possession thereof, and such propulsion tank contained no dyed fuel. Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues, and other devices and materials used to connect the Equipment to Customer’s towing vehicle, if any. Customer acknowledges HIH Rentals is not responsible for any damage to Customer’s towing vehicle caused by detachable hitches or mirrors. If Customer discovers any malfunction or defect in Equipment, Customer shall promptly notify HIH Rentals. Customer shall abide by all third-party manufacturer requirements regarding repair, maintenance, and notice.
5. PERMITTED USE
Customer agrees and warrants that HIH Rentals has no control over the manner in which the Equipment is operated during the Rental period by Customer or any third party that Customer implicitly or explicitly permits. Prior to each use and its return, Customer shall inspect the Equipment to confirm that the Equipment is in good condition, without defects, readable decals are on the Equipment, and the Equipment is suitable for Customer’s intended use. Customer agrees to check filters, oil, fluid levels and tire air pressure. Clean and visually inspect the Equipment daily and immediately cease using the Equipment and immediately notify HIH Rentals if Equipment needs repair or maintenance. Customer has selected the Equipment based on its requirements and will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner. Customer agrees to defend, indemnify and hold HIH Rentals harmless from all finds, penalties, damage to Equipment and any other costs incurred by HIH Rentals due to dyed fuel being introduced into the propulsion tank of such vehicles. Customer acknowledges that HIH Rentals has no responsibility to inspect the Equipment while it is inn Customer’s possession. HIH Rentals shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.
6. PROHIZBITED USE
Customer shall not alter or cover up any decals or insignia on the Equipment, remove any operating or safety equipment or instructions or alter or tamper with the Equipment. Customer shall not move the Equipment from the Site Address with out HIH Rentals written consent. Customer shall not use the Equipment in a negligent, illegal, unauthorized or abusive manner, or publicize use of the Equipment in any manner (including, without limitation, print, audiovisual or electronic, or allow the use of the Equipment by anyone other than Authorized Individuals. Customer acknowledging that the Equipment may be dangerous if used improperly or by untrained parties.
7. MAINTENANCE
Customer shall perform routine maintenance on the Equipment, including routine inspections and maintenance of fuel and oil levels, grease, cooling and fluid systems, batteries, tires/tracks cutting edges, and cleaning in accordance with the manufacturer’s specifications, as applicable. All other maintenance or repairs may only be performed by HIH Rentals or its agents, but HIH Rentals has no responsibility during the Rental Period to inspect or perform any maintenance or repairs unless Customer requests a service call. If HIH Rentals determines that repairs to the Equipment are needed, other than Ordinary Ware and Tear, Customer shall pay the full repair charges, additional fees, if any, and rental of the Equipment until the repairs are completed. If Equipment is stolen or damaged in excess of 40% of the Equipment’s FMV, Customer will be responsible for the FMV of the Equipment, including sales tax, as applicable. HIH Rentals has the right to inspect the Equipment wherever located. Customer has the authority to and hereby grants HIH Rentals and its agents the right to enter the physical location of the Equipment of the purposes set forth herein. HIH Rentals shall be responsible for repairs needed because of Ordinary Ware and Tear.
8. CUSTOMER LIABILITY
During the Rental Period, Customer assumes all risk associated with the possession, control or use of the Equipment, including but not limited to, personal injury, death, rental charges, theft, losses, damage and destruction, including Customer transportation, loading and unloading, whether or not the customer is at fault. After an Incident, Customer shall immediately notify HIH Rentals, the police, if necessary, and Customer’s insurance carriers. Also make sure to secure and maintain the Equipment and the surrounding premises in the condition existing at the time of such Incident, until HIH Rentals or its agents investigate. Customer shall submit copies of all police or other third party reports to HIH Rentals immediately, and as applicable pay HIH Rentals, in addition to other sums due herein, the rental rate for Equipment until the repairs are completed or Equipment replaced plus either the FMV or the charges of recovery and repairs of damaged Equipment. Accrued rental charges shall not be applied against these amounts. HIH Rentals shall have the immediate right, but not obligation, to reclaim any Equipment involved in any Incident.
9. NO WARRANTIES
HIH Rentals disclaims all representations and warranties, express or implied, with respect to the equipment, its durability, condition, merchantability, non-infringement, or fitness for any particular purpose. Customer acknowledges acceptance of the equipment on an “as is, where is” bases, with “all faults” and without any recourse whatsoever against HIH Rentals entities. Customer assumes all risks associated with the Equipment and releases HIH Rentals entities from all liabilities and damages (including lost profits, personal injury, and special, incidental and consequential damages, even if advised of the possibility of such damages) in any way connected with the Equipment, its installation, operation or use or any defect or failure thereof, a breach of HIH Rentals’ obligations herein or errors or inaccuracies in information obtained from Customer or third parties, upon which HIH Rentals relies; provided however, if customer is a consumer under applicable law, then no consequential damages limitation of injuries to persons shall apply.
10. RELEASE AND INDEMNIFICATION
To the fullest extent permitted by law, Customer indemnifies, releases, holds HIH Rentals entities harmless and at HIH Rentals’ request, defends HIH Rentals entities (with counsel approved by HIH Rentals), from and against all liabilities, claims, losses, damages, and expenses (including attorney’s and/or legal fees and expenses) however arising or incurred, related to any incident , damage to property, injury or death of any person, contamination or alleged contamination, or violation of law or regulation caused by or connected with the access, use, possession or control of the Equipment by Customer or any third party that Customer implicitly or explicitly permits to access, use, possess or control the Equipment during the Rental Period or breach of this Contract, whether or not caused in part by the active or passive negligence or other fault of any party indemnified herein and any of the foregoing arising or imposed in accordance with the doctrine of strict or absolute liability. Customer also agrees to waive its workers’ compensation immunity, to the extent applicable. Customer’s indemnity obligations shall survive the expiration or termination of this Contract. All of Customer’s indemnification obligations under this paragraph shall be joint and several.
11. MALFUCTIONING EQUIPMENT
Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify HIH Rentals. If such condition is result of normal operation, HIH Rentals will repair or replace the Equipment with reasonably similar Equipment in working order, if such replacement Equipment is available. HIH Rentals has no obligation to repair or replace equipment rendered inoperable by misuse, abuse or neglect. Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Customer must return the Equipment to the store Location within twenty-four (24) hours from the time of defect in order to terminate rental charges.
12. CUSTOMER PERSONAL PROPERTY
With respect to any personal property left in or on the Equipment upon expiration of the Rental Period, HIH Rentals expressly disclaims any custody, control, or responsibility for the care of Customer’s, or any other person’s, personal property. HIH Rentals or its agents may remove the personal property from the Equipment. Under no circumstances are HIH Rentals or its agents responsible for any personal property that may be lost, stolen, or damaged. Customer personal property left in or on the Equipment upon expiration of the Rental Period may be considered abandoned, unclaimed property in accordance with applicable state law.
13. INSURANCE
During the Rental Period, Customer shall maintain, at its own expense, the following minimum insurance coverage.
Such policies shall be primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, name HIH Rentals and its agents as an additional insured (including an additional insured endorsement) and loss payee, and provide for HIH Rentals to receive at least 30 days prior written notice of any cancellation or material change. Any insurance that excludes boom damage or overturns is a breach. Customer shall provide HIH Rentals with certificates of insurance to evidencing the coverage required above prior to any rental and any time upon HIH Rentals request. To the extent HIH Rentals Entities carry and insurance, HIH Rentals Entities’ insurance will be considered excess insurance. The insurance that required herein does not relieve Customer of its responsibilities, indemnification, or other obligations provided herein, or for which Customer my be liable by law or otherwise.
14. RENTAL PROTECTION PLAN
Customer’s repair or replacement responsibility in Sections 11 and 13 of this Contract is modified by the RPP, if offered on Equipment, and HIH Rentals shall limit the amount HIH Rentals collects from Customer for the Equipment loss, damage or destruction to the following amounts for each piece of Equipment, per each occurrence.
The RPP is NOT INSURANCE and does NOT protect Customer from liability to HIH Rentals or others arising out of possession, control or use of he Equipment, including injury or damage to persons or property. The RPP is a contractual modification of customer’s liability.
All of the following “Conditions” must be satisfied for the RPP and the corresponding liability reduction apply.
“Exclusions” shall mean loss, theft, damage or destruction of the Equipment.
The Exclusions remain the liability of Customer and are not modified by the RPP. RPP is reflected on this Contract as part of customer’s estimated charges unless Customer has elected to decline RPP in writing, fails to pay the RPP fee or made other contractual arrangements with HIH Rentals.
Notwithstanding anything to the contrary in this Contract, if Lost Equipment is later recovered, HIH Rentals retains ownership of the Equipment regardless of any payments made by Customer or Customer’s insurance company with respect to such Equipment, all of which payments are non-refundable. Customer agrees to promptly return any Equipment that is recovered. HIH Rentals shall be subrogated to Customer’s rights to recover against any person or entity relating to any loss, theft, damage or destruction to the Equipment. Customer shall cooperate with, assign HIH Rentals all claims and proceeds arising from such loss, theft, damage or destruction, execute and deliver to HIH Rentals whatever documents are required and take all other necessary steps to secure in HIH Rentals such right, at Customer’s expense.
15. RENTAL RATES
The total charges specified in this Contract are:
16. PAYMENT
Customer shall pay for the rental of Equipment, sale of Equipment, materials and all other items and services identified in this Contract and all other amount due, without any offsets, in full, in advance at the time of rental, unless HIH Rentals approves Customer’s executed commercial credit application. Commercial customers who are approved for HIH Rentals’ extended payment terms must pay, in arrears, upon receipt of HIH Rentals’ invoice, either by cash check or ACH. Customer must notify HIH Rentals in writing of any disputed amounts, including credit card charges, within 15 days after the receipt of the invoice/contract or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. At HIH Rentals discretion, any account with a delinquent balance may be placed on a cash basis, deposits may be required and the Equipment may be picked up without notice. Due to the difficulty in fixing actual damages caused by late payment, Customer agrees that a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law shall be assessed on all delinquent accounts, until paid in full. Customer shall reimburse HIH Rentals for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Customer of any default under this Contract. Customer shall pay a fee of $75 each check returned for lack of sufficient funds to compensate HIH Rentals for its overhead for processing missed payment. Deposits will only be returned after all amount are paid in full.
Customer agrees that if a credit or debit card is presented to pay for charges or to guarantee payment, Customer authorizes HIH Rentals to charge the credit or debit card all amounts shown on this Contract and charges subsequently incurred by Customer, including but not limited to, loss of or damage to the Equipment and extension of the Rental Period.
17. RETURN OF EQUIPMENT
HIH Rentals may terminate this Contract at anytime, for any reason. The Equipment shall be returned to HIH Rentals (when needed for inspections, maintenance and at the end of the Rental Period) in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. Customer will return the Equipment at the end of the Rental Period, but will continue to be responsible for rental and other charges after the Rental Period if the Equipment is not returned in the condition required herein. If HIH Rentals delivered the Equipment to Customer, Customer shall notify HIH Rentals that the Equipment is ready to be picked up at the Site Address and obtain and Pick-Up Number, which Pick-Up Number Customer should keep as proof of the call. Provided Customer remains liable for any loss, theft, damage to or destruction of the Equipment until HIH Rentals confirms that the Equipment is returned in the condition required herein. Customer will not be charged the rental charges after the date the Pick-Up Number is given, provided Customer has otherwise complied with this Contract. No pickups occur on Sundays or statutory holidays and Saturday pickups are dependent on specific Store hours. If Customer picked up Equipment, Customer shall return Equipment to the same Store during that Store’s normal business hours. If the Equipment is not returned by the estimated end of the Rental Period specified earlier, Customer agrees to pay the applicable rental rate of the Equipment until the end of the Rental Period.
18. PURCHASES
If this Contract identifies any Equipment, materials or other items that is to be purchased by Customer, HIH Rentals sells and delivers such items to Customer on “AS IS, WHERE IS” basis, with all faults and without any warranties (other than manufacturer warranties, if any) in consideration for Customer’s payment to HIH Rentals of the full purchase price of the item, HIH Rentals retains title to the item until Customer has paid in full.
19. DEFAULT
Customer shall be in default if HIH Rentals deems itself insecure or if Customer are in the following saturation:
If a Customer default occurs, HIH Rentals shall have, in addition to all rights and remedies at law or in equity, the right to repossess the Equipment without judicial process or prior notice. Customer shall pay all of HIH Rentals’ costs, including reasonable costs of collection, court costs, attorneys and legal fees, incurred in exercising any of its rights or remedies herein. HIH Rentals shall not be liable due to seizure of Equipment by order of governmental authority. Customer waives any right of action against HIH Rentals entities for such repossession.
20. CRIMINAL WARNING
The use of false identification to obtain Equipment or the failure to return Equipment by the end of Rental Period may be considered theft, subject to criminal prosecution and civil liability where permitted, pursuant to applicable laws.
21. ENVIRONMENTAL SERVICES CHARGE
To promote a clean and sustainable environment, HIH Rentals takes various measures to comply with applicable environmental regulations, as well as with HIH Rentals own policies. HIH Rentals also incurs a wide range of environmental related expenses (both direct and indirect). These expenses may include services such as waste disposal, construction and maintenance of cleaning facilities, acquisition of more fuel-efficient equipment, as well as, labor costs, administration costs, etc. To help offset these and other costs, HIH Rentals assesses an Environmental Services Charge, plus applicable taxes thereon in connection with certain rentals. The Environmental Services Charge is not a tax or governmentally mandated charge and is not designated for any particular use or placed in an escrow account, but is a charge that HIH Rentals collects as revenue and uses at its discretion.
22. FUEL
For Equipment that uses fuel, Customer has three options:
These options each allow for the convenience of not refueling. Customer agrees that none of these options are a retail sale of fuel.
23. ACCOUNT SUSPENSION/TERMINATION/BLOCKING
HIH Rental reserves the right to suspend, terminate, and/or block customer accounts for any reason, including, but not limited to, suspicious/malicious activity or the account being compromised in any way.
24. LIMITATION OF HIH RENTALS’ LIABILITY
In consideration of the rental of Equipment, Customer agrees that HIH Rentals’ liability under this Contract, including any liability arising from HIH Rentals and its entities, or any third party’s comparative, concurrent, contributory, passive or active negligence or that arises as a result of any strict or absolute liability, shall not exceed the total rental charges paid by Customer under this Contract.
25. JURY TRIAL WAIVER
In any dispute arising out of, in connection with, or in any way pertaining to this Contract, Customer and HIH Rentals hereby knowingly, voluntarily and intentionally waive any right to a trial by jury, this waiver being a material inducement to entering into this Contract.
26. ARBITRATION AGREEMENT & CLASS ACTION WAIVER
At the election of Customer or HIH Rentals, any dispute arising out of, in connection with or in any way pertaining to this Contract shall be settled by arbitration brought in the party’s individual capacity and not as a plaintiff in a purported class or representative capacity, administered by the American arbitration association under its commercial arbitration rules or by jams pursuant to its streamlined arbitration rules and procedures and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There shall be no right or authority for any claims to be arbitrated or tried on a class action basis.
27. COMPLIANCE WITH EXPORT AND IMPORT LAWS
Removal of the Equipment from the United States is prohibited under this Contract. If Customer desires or causes the transport and/or operation of the Equipment outside of the United States, Customer must obtain HIH Rentals’ consent prior to taking such action, including approval of established customs broker, and execute an amendment to this Contract, which amendment is incorporated herein. If Customer exports or re-exports without complying with the above sentence, Customer agrees that the Equipment is subject to and must comply with all applicable export laws, including but not limited to the Export Administration Regulations. Customer, as the exporter/importer of record, is responsible for determining whether and obtaining if necessary, export or re-export licenses or other authorizations as required prior to exporting or re-exporting the Equipment, obtaining any required documentation necessary for return of the Equipment, and ensuring no unauthorized transfers or diversions of the Equipment occur. Refer to www.bis.doc.gov for information.
28. COLLECTION OF DATA
Customer consents to the collection, use and disclosure of the data and information Customer voluntarily provides to HIH Rentals, including personal identifiable information and financial information, as well as Telematics Data collected from the Equipment.
29. GOVERNING LAW
The Parties expressly and irrevocably agree this Contract, including and related tort claims, shall be governed by the laws of California, without regard to any conflicts of law principles and if any Section of this Contract is prohibited by any law, such Section shall be ineffective to the extent of such prohibition without invalidating the remaining Sections.
30. FORCE MAJEURE
HIH Rentals shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts beyond HIH Rentals control. This includes, but is not limited to, natural disasters (such as floods, fires, earthquakes, or explosions), epidemics/pandemics, wars (declared or undeclared), terrorist activities, civil unrest, government actions or regulations, active embargoes/blockades, national emergencies, labor strikes, infrastructure failures (power/transportation shortages), and any other unforeseeable events outside HIH Rentals' influence. These situations, collectively referred to as "Force Majeure Events," exempt HIH Rentals from liability only to the extent they directly prevent contractual performance.
31. MISCELLANEOUS
This Contract, together with any Customer executed commercial credit application, if any, Constitutes the entire agreement of the Parties regarding the Equipment and may not be modified except by written amendment signed by the Parties. Any reference in Customer’s purchase order or other Customer document to other terms that shall control this transaction shall be void. This Contract benefits solely the Parties and their respective permitted successors and assigns and nothing in this Contract, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract. Customer’s obligations hereunder shall survive the termination of this Contract. If any term is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or invalidate or render unenforceable such term. This Contract and all of Customer’s rights in and to the Equipment are subordinate to all rights, title and interest of all persons (including HIH Rentals lenders) who have rights in the Equipment. Headings are for convenience only. To the extent that any terms in this Contract conflict, the Parties agree that the more specific terms control. A copy of this Contract shall be valid as the original. Any failure by HIH Rentals to insist upon strict performance of any Section of this Contract shall not be construed as a waiver of the right to demand strict performance in the future. Customer and the person signing this Contract agree, represent and warrant that the person executing is 18 or the legal age of majority in the state, whichever is greater and they both have full authority to execute, deliver and perform this Contract, and This Contract constitutes a legal, valid and binding obligation of Customer, enforceable in accordance with its terms. If the Parties have a fully executed, active agreement, intended to govern over conflicting terms and conditions, such agreement shall take precedence over the terms herein.
Customer Signature: _____________________________________________ Date: __________________________
I have read, understand and agree to the policies of the contract.