4. Payment Term
Lessee shall pay rental rate as noted in item 1 above, the first installment in advance and subsequent payments due within five (5) days prior to the next installment. Lessee is responsible for all sales, use, excise and other taxes, etc. during the term of the Lease unless valid exempt document is provided.
5. Duration of Rental & Hours of Operation
The rental term is based on the time allotted or hours consumed, whichever comes first (i.e Monthly is a consecutive 4 week period or 160 engine hours, whichever comes first and Weekly is a consecutive 7 day period or 40 engine hours, whichever comes first). Lessee agrees to operate the Equipment no more than 160 engine hours per a consecutive 4 week period on a monthly rental and 40 engine hours per 7-day period on a weekly rental. If the equipment is operated more than the stated number of hours allotted in the designated rental period, Lessee agrees to pay additional rent of 1/160 of the monthly rate for each hour of use in excess of the 160 engine hours per consecutive 4 week period or 1/40 of the weekly rate for each hour of use in excess of the 40 engine hours per 7-day period. Lessee agrees to notify Lessor in writing of all such excess hours immediately after such hours are accrued. Such additional rent is due net upon invoice.
6. Delivery & Possession
Lessee shall take possession of the Equipment at 284 North St, Windsor Locks, CT and shall pay all charges for loading, unloading, and transportation of the Equipment to the job location and its return to Lessor’s possession at the foregoing location. Lessee shall inspect the Equipment within twenty-four (24) hours after taking possession, but before use. Unless Lessee within that time gives written notice to the Lessor specifying any objection to the equipment, it shall be conclusively presumed that the Lessee has fully inspected the Equipment, has found the Equipment in good condition and repair, and has accepted the Equipment.
7. Additional Rent
If the Equipment has not been returned to Lessor at the expiration of the term, Lessee agrees to pay rent from the expiration of the term until the Equipment is delivered to Lessor’s possession. Such rent shall be computed and paid based upon the same terms as the original term of this Agreement. In no event, however, shall the option to purchase, described below, continue beyond the term of this lease.
8. Option to Purchase
(a) At anytime during the term of this Lease, Lessee shall have the option to purchase the Equipment for a predetermined price, plus any applicable sales taxes; (b) The price shall also include all charges for repairs to the Equipment made by Lessor, at Lessor’s standard rates for such parts and services; (c) So long as this option is exercised during the Term, the price shall be reduced by the following amounts;(c1) 100% of all Term Rent paid by Lessee and received by Lessor during or prior to (1st) month of a term; (c2) 80% of all Term Rent paid by the Lessee and received by Lessee during the 2nd and 3rd months of a term; (c3)there is no credit after the 3rd month unless by written agreement. This option to purchase shall terminate at the end of the term of this lease. Lessee shall thereafter have no right to purchase the Equipment, nor will Lessee be entitled to any credit or other consideration for rent paid. In the event that this equipment is used, the Lessee understands and acknowledges that the equipment is being sold “as is” and the Seller/Lessor makes no warranties, expressed or implied, or warranty of merchantability or fitness of the equipment for any particular purpose.
Lessee shall: (a) Use the equipment in a careful and proper manner, and not permit the Equipment to be neglected or abused or to be used for any purpose for which it is not designed or intended; (b) Maintain the Equipment, on a daily basis, in good working order and condition and at it’s own expense, per the Lessor’s or manufacturers instructions, and make all necessary repairs and replacements and provide all fuel, oil, grease, anti-freeze, parts, and other supplies required for its proper servicing, operation, and protection. All parts are to be original equipment manufactured and specified by manufacturer and/or Lessor; (c) Comply with all laws, ordinances, and regulations relating to the transportation, possession, use, or maintenance of the Equipment; (d) Keep affixed and/or affix all Lessor or Manufacturer supplied labels, plates, warnings, or other markings in a proper and appropriate place on the Equipment; (e) Cause the Equipment to be operated by trained and competent employees only, licensed where applicable, knowledgeable in the function, operation, and all safety features of the Equipment; (f) Pay all expenses of operation; (g) Agree to inform, train, and advise all operators about said equipment as well as workers in or around machines of the same; (h) Acknowledges receipt of operator’s and safety manuals with the machine; (i) Agree not to alter, disfigure, or cover-up any marks of identification displayed on the Equipment in any way;(j) Acknowledge that any operator provided by the LESSEE during the lease of the Equipment is under the exclusive direction and control of the LESSEE and is considered a borrowed servant.
Lessee hereby assumes all risks of loss of and damages to the Equipment from any causes and agrees to keep the Equipment in good repair at Lessee’s sole expense, and to return the Equipment in good repair and at the termination of this Lease. For the purposes of this Lease, “good repair” shall mean in full operating condition and working order, with all parts of the Equipment in the substantially equivalent condition as when the Equipment was delivered to Lessee including wear items. Lessee at its sole expense shall repair or replace any and all parts, mechanisms, or devices required to keep the Equipment in good repair using O.E.M. parts and industry qualified skilled personnel. Any replacement parts incorporated into the Equipment shall immediately become the property of the Lessor. In the event the Equipment for any reason is not in good repair when returned to the Lessor, Lessee agrees to pay all reasonable charges and expenses incurred by the Lessor in repairing the Equipment, or repairing or replacing any parts. Lessee is responsible for cleaning up the Equipment after use; otherwise Lessee will reimburse Lessor for the cost of cleaning. Lessee agrees to pay a pro-rata portion of all wear parts for the Equipment under this Agreement based on the difference between the condition was received by the Lessee and the condition in which it was returned.
11. Addition of Accessories
Lessee will not, without the written consent of the Lessor, install any accessories or devices on the Equipment if such installation will impair the originally intended function or use of the Equipment. Such items installed on the Equipment shall automatically become the property of the Lessor unless such item can be removed without in any way affecting the function, use or appearance of the Equipment. Any damage to the Equipment caused by the removal of such items shall be repaired at Lessee’s expense.
12. Personal Property
The Equipment is, and shall at all times remain, personal property. If all or any part of the Equipment is attached to, imbedded in or permanently resting upon any real property or any building thereon, or attached in any manner to what is permanent, by means of cement, plaster, nails, bolts, screws, or otherwise, the Equipment shall nonetheless remain personal property.
13. Inspection by Owner
Lessee shall, whenever requested, advise Lessor of the exact location of the Equipment. Lessor and its representatives may, for the purposes of inspection, at all times, enter upon any job, building or place where the Equipment is located. Lessor may remove the Equipment without notice to the Lessee if, in the opinion of the Lessor, the Equipment is being used beyond its capacity or in any other manner improperly cared for or abused.
14. Title, Assignment and Encumbrances
All of this Equipment shall remain personal property and title thereto shall remain in Lessor exclusively. Neither this Lease, nor the Lessee’s rights hereunder shall be assignable except with the Lessor’s written consent. Lessee shall not lease, sublease, mortgage or otherwise encumber or part with possession of the Equipment or any part thereof, except with the written consent of the Lessor. Lessee shall keep the Equipment free from any and all liens and claims, and shall not do or permit any act or omission whereby Lessor’s title or rights may be encumbered or impaired. Lessee agrees to pay all license fees and taxes applicable to the Lease, other than income taxes and personal property taxes and license fees on the Equipment. The Lessee shall also provide all permits, if any, necessary for the installation, movement, and operation of the Equipment or any parts thereof.
The Lessor is not the manufacturer of the equipment nor the agent of said manufacturer. It is expressly agreed that, except as stated below, THE OWNER HAS MADE AND MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. ANY DEFECT IN, OR UNFITNESS OF THE EQUIPMENT SHALL NOT RELIEVE THE LESSEE FROM THE OBLIGATION TO PAY RENT OR ANY OBLIGATION UNDER THIS LEASE. Lessee represents that it is skilled and experienced in the use and operation of Equipment of the type described in the Lease, and makes the selection and decision on whether to lease on the basis of Lessee’s own judgement, without reliance on any statements or representations by Lessor or its representatives. It is expressly agreed the Lessee shall take the Equipment as is, except as stated herein. It is further agreed that Lessor extends no warranties or guarantees for new Equipment. Lessor shall extend and transfer unto Lessee all of the vendors/manufacturers warranties and guarantees, if any, for new Equipment if purchased.
Notwithstanding any failure of the vendor to honor any warranty or guarantee, Lessee agrees to maintain the Equipment in good repair, as described herein, and to make all rental payments required herein. In the event that this equipment is used, the Lessee understands and acknowledges that the equipment is being sold “as is” and the Seller/Lessor makes no warranties, expressed or implied, nor warranty of merchantability or fitness of the equipment for any particular purpose.
During all times the Equipment is in Lessee’s possession, Lessee shall keep the Equipment insured against all risks of loss or damage from every cause whatsoever for not less than the full replacement value of the Equipment as determined by Lessor, and shall carry public and comprehensive general liability, contractual liability, and property damage insurance covering the Equipment, its operation and use. All such insurance shall be in a form and amount and with companies approved by the Lessor, and shall designate Lessor as an additional insured under such policy. Lessee shall pay the premium for such insurance, and shall deliver to Lessor a copy of such policy or a certificate of insurance executed by the insurer prior to taking possession of the Equipment. Such policies shall explicitly provide that the insurer shall give Lessor thirty (30) days written notice before the policy in question shall be altered or cancelled. The proceeds of such insurance, at the option of the Lessor, shall be applied: (a) toward the replacement, restoration, or repair of the Equipment, or (b) toward payment of the obligations of the Lessee hereunder. If, within ten days following notice by the Lessor to the Lessee, the Lessor has failed to receive policies or certificates of insurance in accordance with this paragraph, the Lessor shall, at Lessor’s option, have the right to (a) declare this Lease in default and exercise its remedies as set forth below, or (b) produce such insurance, in which event Lessee shall reimburse Lessor for the cost of procuring insurance, which amount shall be payable in its entirety on the next rental payment date or within thirty (30) days, whichever is sooner. In the event that the insurance was not provided or an insurance coverage not large enough to satisfy the claim in full, Lessee agrees to reimburse the Lessor for up to the fullest replacement cost, including all insurance shortfalls and/or deductibles, etc.
To the fullest extent permitted by law, the Lessee hereby acknowledges and agrees that it shall defend, indemnify, and hold harmless LESSOR, and any of its officers, directors, employees, agents, affiliates, subsidiaries, and partners from and against all claims, damage judgments, liabilities, losses, and expenses, including attorneys’ fees, arising out of or resulting from the LESSEE’S operation use, lease, repair, or maintenance of the Equipment, provided that such claim, damage, judgment, liability, loss, or expense(1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property including loss of use resulting therefrom including any direct, indirect, special, incidental, or consequential damages of any kind arising out of this lease, and(2) is caused in whole or in part by an act or omission of the LESSEE, its employees, agents, and subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable. The LESSEE hereby acknowledges its obligation under the foregoing paragraph to assume the cost of defending the LESSOR against claims as described in the foregoing paragraph Lessor reserves the right to insist on counsel of its choice. The LESSEE hereby further acknowledges its obligation to obtain insurance to cover the liability assumed in the foregoing paragraphs. Furthermore, the LESSEE hereby agrees to name the LESSOR as an additional insured under its insurance policy.
If Lessee fails to perform any obligation required herein or to pay any sum when due, or if an attachment is levied against the Equipment or attempted by a creditor of the Lessee, or in the condition of the affairs of the Lessee or any guarantor changes so as to, in the sole opinion of the Lessor, significantly increase the Lessor’s risk of loss, including bankruptcy, insolvency, etc., the Lessor shall have the right to exercise one or more of the following remedies: (a) To declare the entire amount of rent hereunder immediately due and payable as to any and all items of Equipment, without notice or demand to Lessee; (b) To sue for and recover all rents, and other payments then accrued, or thereafter accruing, with respect to any or all items of Equipment; (c) To take possession of the Equipment, without demand or notice, wherever the same may be located, without any court order or other process of law. The Lessee hereby waives any and all rights to notice and to a fiducial hearing with respect to the repossession and waives any damage occasioned by such taking of possession. Such taking of possession shall not constitute a termination of this Lease unless the Lessor expressly so notifies the Lessee in writing; (d) To terminate this Lease to any and all items of Equipment; (e) Pursue any other remedy at law of in equity. Notwithstanding any such repossession or other action, which Lessor may take, the Lessee shall remain liable for the full performance of all obligations under this Lease. In the event Lessor regains possession of the Equipment, Lessor may relet the Equipment for a term and at a rental, which may be equal to, greater than, or less than the rental and term herein provided. Any rental payments received under the new Lease for the period prior to the expiration of this Lease, less Lessor’s expenses of taking possession, storage, reconditioning and releasing, shall be applied on Lessee’s obligation here-under, and Lessee shall remain liable for the balance of the unpaid aggregate rental set forth above. Lessee’s liability shall not be reduced by reason of any failure of the Lessor to relet. Lessee hereby agrees to pay all expenses, including all attorneys’ fees and collection expenses, which may be incurred by Lessor in enforcing this agreement, or in collecting the rent provided herein, or in repossessing the Equipment.
19. Interest & Attorney Fees
In the event that any amount due under the terms of this Lease is not paid when due, Lessee agrees to pay to Lessor, in addition to all amounts due, interest at the rate of 18% per annum, together with all costs, expert witness fees, and reasonable attorneys’ fees incurred in collecting these amounts.
20. Choice of Law and Forum
This agreement shall be enforced and construed pursuant to the laws of the State of Connecticut. Any action to enforce, interpret, construe, or collect damages under this Lease, or for any claims arising out of the manufacture, sale, selection, use, operation, maintenance, or repair of the Equipment, shall be brought in the County of Hartford, CT. Lessor and Lessee, and any guarantors of this Lease, hereby agree to the jurisdiction of such court.
21. General Conditions
(a) Time is of the essence to this Lease. (b) Lessor’s failure at any time to require strict performance by Lessee of any provisions of this Lease shall not waive or diminish Lessor’s right thereafter to demand strict compliance therewith or with any provision. (c) Waiver of any default shall not waive any other default. (d) Any alteration of modification of this Lease shall be in writing and signed by the Lessor and Lessee. (e) This Lease constitutes the entire agreement of the parties, and supersedes all prior representations or agreements between the parties. (f) Lessee acknowledges that he has read the Agreement and that the Agreement is clear and is understood, and agrees to be bound by the conditions stated on the front and back of this form. (g) Lessee agrees to its obligations to pay all rents and other amounts payable hereunder and signee for Lessee personally guarantees the payment hereunder in the event of default.
22. Consequential Damage
The Lessee waves all claims for consequential damage of any kind including loss of time while the equipment maybe shut down for repairs or any other reason.
Confirmation & Signature
BY SIGNING THIS AGREEMENT, LESSEE ACKNOWLEDGES HAVING READ, UNDERSTANDS, AND AGREES TO THE TERMS HEREIN ON THIS DOCUMENT.