Terms And Conditions

CRITICAL NOTICE: You have NO authority or legal right to possess or operate the Equipment until you sign the Equipment, Tool, and Operator Rental Quote (“Quote”) or an invoice for same, which expressly incorporates these Terms and Conditions (“Terms”). Together, the Quote and the Terms make the “Agreement.” This Agreement is effective as of the date shown on the Quote, by and between A. H. Beck Foundation Co., Inc. (“Lessor”) and the customer referenced on the Quote (“Lessee”) for the rental of equipment, tools, or other items identified in the Quote (“Equipment”) or operator services (“Operator”). Both Lessor and Lessee are referred to individually as a “Party” and collectively as “Parties.” In the event that Lessee has taken possession of Equipment provided by Lessor, these Terms, and the Agreement will be deemed to apply based on the acceptance of the Equipment by Lessee, or the payment of one of more invoices thereunder derived.

1. RENTAL DOCUMENTS
   1. The Rental Documents consist of: (a) the Quote, (b) these Terms, (c) all Exhibits explicitly referenced herein, and (d) any written amendments executed by both Parties in strict accordance with this Agreement (collectively, the “Rental Documents” or “Agreement”).
   2. All Rental Documents are incorporated by reference and are complimentary to one another.
   3. Order of precedence in the event of conflict: (a) amendments to Rental Documents, (b) these Terms, (c) the Quote.
   4. This Agreement represents the entire and integrated agreement between the Parties and supersedes all prior arrangements, negotiations, representations, or agreements, whether written or oral.
   5. Modification requires express writing signed by authorized representatives of both Parties.
   6. Lessee’s acceptance is exclusively limited to the terms of this Agreement. Any terms, conditions, fine print, or other writings contained in any document issued by Lessee are hereby actively excluded and void. This Agreement’s terms prevail over any terms contained in any other documentation and expressly exclude any of Lessee’s general terms and conditions.
2. TERM OF RENTAL
   1. Lessee rents the Equipment or Operator from Lessor for the entire Rental Term at the agreed Rental Rate in strict accordance with this Agreement.
   2. The Rental Term for Equipment commences upon the earlier of: (a) the Rental Start Date, or (b) loading of the Equipment upon the initial method of transport. The Rental Term continues until the Estimated Return Date, which is defined in the Quote.
   3. Lessee is responsible for paying rent for all time between: (a) commencement of the Rental Term, and (b) the date the Equipment is transported back to the same location where initially loaded for transport – in full working order – irrespective of whether the Rental Term has expired. Expiration of the Rental Term does NOT reduce Lessee’s obligation to pay rent.
   4. Lessee shall transport Equipment back to the same location where initially loaded and return it in full working order on or before the Estimated Return Date.
   5. Extension or modification of the Estimated Return Date requires written approval of both Parties.
   6. Failure to return Equipment in full working order by the Estimated Return Date results in rent continuing to accrue at the Holdover Rate.
   7. Lessee’s right to possess Equipment terminates on expiration of the Rental Period. Retention of possession after this time is a material breach.
3. RENTAL PAYMENTS
   1. Payment Location and Timing: Lessee shall make all payments in U.S. currency to Lessor at 9014 Green Rd, Converse, Texas 78109 on or before the first day of each month until the later of: (a) expiration of the Rental Term, or (b) return of Equipment in full working order to Lessor’s designated location or release of Operator.
   2. Lessee shall make all payments without demand, deduction, or offset, together with all applicable federal, state, and local sales, use, and excise taxes. All such taxes are solely Lessee’s responsibility.
   3. An initial payment equal to 10% of the total Rental Rate over the reasonably anticipated Rental Term shall be paid as minimum guaranteed rent. This amount is fully and irrevocably earned by Lessor upon execution of this Agreement.
   4. The Rental Rate is exclusive of FOB shipping point terms. Lessee shall pay all loading, shipping, freight, storage, assembly, setup, disassembly, return loading, shipping, and freight costs.
   5. If Lessee’s use exceeds the Maximum Use Time identified in the Quote, Lessee shall pay as additional rent the prorated Rental Rate for each excess hour. If an operating hour meter is attached, it shall be the exclusive measure of usage hours.
   6. No loss of, damage to, repair, or maintenance of Equipment shall reduce or abate Lessee’s obligation to make Rental Payments. Rental payment obligations shall continue until Lessee returns all Equipment to Lessor, and all such Equipment is returned to full working order.
   7. Failure to return Equipment by the Estimated Return Date results in charges at the Holdover Rate. The “Holdover Rate” shall be Rental Rate plus fifteen percent (15%) for each additional day until Equipment is returned.
   8. The Rental Term for Operators commences upon the Operator’s arrival at the Project site and continues until release at the end of each given day.
   9. This is NOT a long-term rental agreement. Under no circumstances shall this Agreement be extended substantially beyond completion of Lessee’s work on the Project. Lessor has the absolute right not to extend this Agreement for any reason or no reason.
   10. Time is of the essence. All payments not timely made shall bear interest at the lesser of: (a) the highest non-usurious rate allowed by law, or (b) eighteen percent (18%) per annum, from the date payment becomes due until paid in full. Payments made for indemnity, insurance, or similar arrangements for damaged Equipment shall bear the same interest from the moment of demand until payment in full.
   11. Client is responsible for any and all applicable taxes.
4. TRANSPORT; RETURN OF EQUIPMENT; CONDITION
   1. Unless otherwise agreed by the Parties, Lessee is responsible for all transportation arrangements for the Equipment, as well as all fees, costs, tariffs, excises, or other expenses of such transportation; including, without limitation, all costs of unloading, loading, and mobilization or demobilization of the Equipment onto the means of transport.
   2. Lessee shall return Equipment clean, fully maintained, and damage-free to Lessor’s designated location upon Rental Term expiration in the same condition as originally received, normal wear and tear from proper use excluded, with all necessary maintenance and repairs completed at Lessee’s expense, and fully fueled.
   3. Lessor shall have the right to issue the following ancillary charges:
      1. A refueling service charge of $7.50 per gallon for liquid fuels or market rate plus $5 per unit of measure for gaseous fuels will be charged for any shortage upon return.
      2. A cleaning charge with a minimum of $500.00 for Equipment returned that requires more than Lessor’s standard cleaning.
      3. An odor removal charge of a minimum of $500.00 for removal of smoking, vapor, or noxious odors residing in the returned Equipment.
      4. A charge for refilling or replacing non-fuel fluids in the Equipment equal to the actual cost of the fluids, time to conduct the work, plus thirty-five percent (35%).
      5. If Lessee loses the Equipment’s keys, key fobs, or toll transponder, or other accessory that was included with the Equipment, Lessor will charge Lessee for the actual cost of replacing the item, plus a $100 fee for Lessor’s out-of-pocket administrative costs for replacing lost accessories. If Lessee renders the Equipment inaccessible (locked keys inside or similar), Lessor shall have the right to charge Lessee for all travel, mail, or other charges Lessor incurs to provide access to the Equipment.
   4. Lessee shall reimburse Lessor for all damage to Equipment incurred prior to return unless Lessee includes a description of such damage or condition in Lessee’s delivery inspection and delivers same to Lessor.
   5. Excluding degradation due to normal wear and tear, Lessee shall reimburse Lessor for all damage (including for total losses of the Equipment from any cause), unperformed maintenance, repairs, and cleaning within thirty (30) days of Lessor’s invoice for same.
   6. As used in the Agreement, “Reasonable wear and tear” means only normal deterioration from ordinary and reasonable use on a one-shift basis. The following are NOT considered reasonable wear and tear:
      1. Damage from lack of lubrication, improper fuel insertion, or failure to maintain necessary oil, water, and air pressure levels; cavitation; or freezing;
      2. Damage from lack of servicing or preventative maintenance;
      3. Damage from collision, overturning, improper operation, overloading, or exceeding rated capacity;
      4. Damage in the nature of dents, bending, tearing, staining, corrosion, or misalignment;
      5. Wear from use in excess of shifts for which rented;
      6. Damage from adverse weather conditions;
      7. Any other damage not considered ordinary and reasonable in the equipment rental industry.
5. CUSTODY; INSPECTION
   1. Lessee is exclusively responsible for all loss or damage to Equipment during Lessee’s Custody. As used in the Agreement, “Custody” shall mean the period starting when Lessee causes Equipment to be loaded for transport and completing when Lessor unloads Equipment for the purpose of taking possession. Lessee is absolutely and exclusively responsible for any and all damage and to Equipment and claims arising from the operations thereof while in Lessee’s Custody.
   2. Lessee shall fully inspect and survey Equipment immediately upon arrival at Lessee’s specified delivery location using industry standard and customary techniques and procedures.
   3. Lessee shall transmit a copy of such inspection to Lessor not later than forty-eight (48) hours following: (a) delivery of Equipment, or (b) Lessee’s first use of Equipment, whichever is earlier.
   4. Lessee’s inspection or survey shall identify any and all damage, defects, or deficiencies in Equipment claimed by Lessee to exist as of the delivery date.
   5. If Lessee fails to (a) conduct such inspection or survey, AND (b) transmit a true, correct, and complete copy of such inspection or survey, then Lessee waives any and all claims, complaints, or defenses as to faultiness, functionality, safety, condition, defect, or other irregularities that may be present in Equipment. All claims arising from allegations of or due to damage, defects, or deficiencies not included within the inspection report are conclusively waived if Lessee fails to provide the inspection to Lessor.
   6. Nothing in this Agreement constitutes Lessor’s representation that Equipment is or would be suitable for Lessee’s intended use or purposes.
   7. Lessee acknowledges that Equipment selected is of the size, design, and capacity desired by Lessee for its intended use. Lessee has relied solely and exclusively on its own judgment, expertise, and criteria in selecting and inspecting Equipment. Any recommendation or advice from Lessor or its representatives, whether written or oral, is informal and shall not give rise to any liability on Lessor’s part.
   8. Upon request, Lessee shall allow Lessor entry upon any site where Equipment is used or stored for Lessor’s inspection or removal in the event of breach.
   9. Lessee shall have the affirmative duty to protect the Equipment while the Equipment is in Lessee’s Custody.
6. USE
   1. As an express condition of this Agreement, Lessee shall use Equipment exclusively for the Project described in the Quote. Any use of Equipment other than for the Project is expressly prohibited. If Lessee intends or desires to move the Equipment to another location or project, Lessee shall first provide written notice to Lessor not later than 3 business days prior to moving the Equipment. Notice of the Equipment’s location under the Agreement is a material term. The notice shall include the new project site’s location, owner, general contractor, surety, and related information.
   2. Lessee shall not interfere with any GPS, tracking, telemetry gathering devices, or other devices that exist on the Equipment at the commencement of Lessee’s Custody.
   3. Lessee shall at all times comply with all laws, regulations, and manufacturer instructions applicable to possession, use, or maintenance of Equipment.
   4. Lessor reserves the right to substitute all or any portion of Equipment with like equipment upon notice to Lessee.
   5. Lessee shall not modify, alter, remove existing components, or install any accessories or devices on Equipment without first obtaining Lessor’s express written consent. Lessee shall not remove, alter, disfigure, or conceal any numbering, lettering, insignia, or signage on Equipment.
   6. All accessories and devices affixed to Equipment become Lessor’s property unless such accessory or device can be removed without damage to Equipment.
   7. Lessee will, upon request by Lessor, promptly advise Lessor of the exact location and use of Equipment. Lessee’s failure to provide Lessor of the Equipment’s location shall be a material breach hereof.
   8. Lessee shall maintain complete and accurate records of the date, time, purpose, and place of use of Equipment. Copies shall be provided to Lessor upon request, and upon Lessee’s return of the Equipment to Lessor.
   9. Unless otherwise provided by Lessor, Lessee shall be responsible for supplying, employing, compensating, and authorizing only competent and qualified operators who are experienced, trained, skilled, and, where required by law, certified or licensed to operate or maintain Equipment.
   10. Should Lessor have reason to believe that (a) any operator furnished by Lessee is not properly licensed, (b) such operator is not suitable for performance of work, (c) Lessee has moved Equipment offsite from the Project location without Lessor’s consent, (d) Lessee is or has engaged in improper, unsafe, illegal operations or operations not related to the Project, (e) Lessee fails to maintain, properly check and replenish filters, oil, fluid levels and tire air pressure, clean and visually inspect Equipment daily, or immediately cease using Equipment and immediately notify Lessor if Equipment needs repair or maintenance, or (f) Lessee is in violation of this Agreement, then Lessor shall have the right to enter any place or location to observe Equipment and, in Lessor’s sole discretion, repossess Equipment. This right is in addition to any remedies available to Lessor herein or by applicable law.
7. MAINTENANCE AND REPAIRS
   1. Lessee agrees to pay all operating and maintenance expenses while Equipment is in Lessee’s Custody, including all parts, filters, materials, fuel, lubricants, and repair or replacement of any wear items.
   2. Lessee shall actively maintain, at Lessee’s expense, Equipment in good operating order in accordance with manufacturer’s specifications, applicable legal requirements, and good industry standards and practices, and protect same from rust and other deterioration.
   3. Such responsibilities include the duty to inspect Equipment daily and actively maintain proper levels and distributions of all fluids, lubricants, and other service items.
   4. Should Equipment not be repairable, Lessee shall pay to Lessor the full fair market value plus applicable taxes.
   5. Lessee is not authorized to incur any liability or extend any money to Lessee’s account for any operating, maintenance, or repair cost without Lessor’s prior express written consent.
   6. All repairs must meet manufacturer’s specifications and be certified by the manufacturer or qualified inspector or certifier.
   7. Lessee shall furnish Lessor with copies of all inspection reports, maintenance logs, invoices, and receipts documenting any and all maintenance and repair work performed on Equipment on a quarterly basis. All such records shall be provided to Lessor upon Lessee’s return of the Equipment to Lessor.
   8. At no time shall Lessee operate Equipment when it needs maintenance or repair without first maintaining or repairing same, or otherwise when use would be unsafe.
   9. Lessee shall establish a suitable safety plan covering use and storage of Equipment and shall at all times implement and enforce the provisions of such plan. Lessee shall provide a copy of such plan at Lessor’s request.
8. OPERATORS
   1. From time to time, Lessee may request that Lessor provide licensed operators. Lessor shall have full and exclusive discretion to accept or deny, in whole or in part, such requests based upon Lessor’s own determination of availability, allocation of manpower, logistics, and other business concerns.
   2. Lessee has the right to object to one or more Operators provided by Lessor. Unless Lessee objects to such Operator within 48 hours of the arrival of said Operator, Lessee will be deemed to have waived any claims arising from Operator’s actions. This shall, in no way, affect Lessee’s right to remove an Operator with or without cause.
   3. Any Operators provided by Lessor will be billed on an hourly basis at the rates set forth in the Quote.
   4. The Rental Term for Operators commences upon the Operator’s arrival at the Project site and continues until the later of 5:00 pm each day or until Operator is actually released from duties at the end of each work day.
   5. Overtime: Where overtime work in excess of eight (8) hours per day is permissible under applicable law, the daily rental rate shall be 1.5 times the stated rate for all such overtime work.
   6. Lessee acknowledges and agrees that Lessee is exclusively responsible for, and having authority to exercise control over, each Equipment Operator provided by Lessor to Lessee, including without limitation all supervision, direction, and control as though same were an employee of Lessee.
   7. Lessee accepts all responsibility for proper on-site training, supervision, management, oversight, record keeping, and related administrative and safety obligations for each Operator.
   8. Any instruction or direction provided by Lessor to an Operator shall be deemed to exclusively relate to the results that Lessee desires to obtain and shall not alter Lessee’s exclusive responsibility for same.
   9. Lessee is the party exclusively responsible for all acts and omissions of an Operator while performing work on the Project site or otherwise.
   10. All work performed by an Operator is as an independent contractor and not as an agent, employee, or partner of Lessor. Lessor has no responsibility for any act or omission of an Operator provided by Lessor to Lessee to the fullest extent allowed by applicable law.
   11. If Lessee has concerns about one or more Operators, Lessee shall immediately advise Lessor in writing. Lessor shall remove same from the Project and thereafter have the option, in the exercise of its sole discretion, to provide a replacement Operator or not. Lessee alone bears all legal risks and costs associated with removing such Operators from the Project.
9. SAFETY
   1. Lessee agrees that prevention of accidents arising from the Equipment or otherwise proximate to the Equipment is solely Lessee’s responsibility.
   2. Lessee shall use best available practices to properly train and supervise its employees, Operators, and subcontractors, and take all other reasonable safety precautions to protect the Project, personal property, Operators, the public, Project’s Owner and Contractor, as well as their respective employees, agents, subcontractors, and suppliers of any tier, other workers, invitees, and all others visiting or performing work on the Project from any harm or injury, including harm from environmental or health hazards associated with use or storage of Equipment.
   3. Lessee shall not permit any person who is unfit, untrained, or unskilled to operate, work on, or otherwise utilize Equipment.
   4. Lessee shall not remove or otherwise modify any of Equipment’s guards or safety devices.
   5. Lessee shall establish a suitable safety plan covering use and storage of Equipment and shall at all times implement and enforce the provisions of such plan.
   6. Lessee shall fully and timely comply with all controlling state and local laws, rules, regulations, statutes, and ordinances related to use of Equipment.
   7. The duties of Lessee in this section are non-delegable. Lessee’s compliance with specific recommendations or requirements of Lessor shall not excuse Lessee from faithful performance of these duties should such recommendations and requirements not be adequate or reasonable under the circumstances.
   8. Lessee shall immediately report in writing to Lessor all accidents or injuries whatsoever arising out of or in connection with use of Equipment or acts or omissions of an Operator which resulted in death, personal injury, or property damage, with full details and copies of any witness statements.
   9. Lessee assumes all risk and liability for personal injuries, deaths, property damages, delay, and all other claims and losses arising from or in any way related to Equipment or its use, and irrevocably waives all claims against Lessor and Lessor’s owners, employees, agents, affiliated companies, successors, and insurers for same.
10. INSURANCE AND INDEMNITY
    1. Insurance Requirements: Lessee shall, at its sole expense, maintain in effect at all times insurance coverage of the type and with limits not less than those set forth below:
       1. Commercial General Liability insurance with limits of not less than the greater of $2,000,000 per occurrence and $4,000,000 in the aggregate;
       2. Broad form equipment floater insurance or similar all risk direct property insurance, including waterborne if working over water, transit, boom and overload coverage for any cranes, and general risks, in an amount not less than the greater of $2,000,000 or the fair market value of Equipment, with Lessor listed as the loss payee;
       3. Fire and extended coverage insurance in an amount not less than the fair market value of Equipment for any and all loss or damage to Equipment occasioned by fire, theft, flood, explosion, overturn, accident, acts of God, and any other cause that may occur during the Rental Term;
       4. Auto commercial liability insurance with a combined single limit of $1,000,000 for property damage and bodily injury;
       5. Worker’s Compensation Insurance or equivalent employer’s liability insurance on all of its employees and its subcontractors’ employees with limits of not less than $1,000,000 per claim.
    2. The stated limits are minimums only. It is Lessee’s exclusive responsibility to determine what additional limits are adequate and the length of time coverage shall be maintained to fully meet its obligations under this Agreement.
    3. All insurance policies shall be “Occurrence” type. “Claims Made” type policies are not permitted.
    4. Wrap up insurance programs or other insurance programs controlled by the owner/contractor shall be considered as not complying with the terms hereof. The insurance required under this Agreement shall be independent of and in addition to any such programs.
    5. Lessee shall pay all deductible amounts associated with required insurance.
    6. Lessee is liable to Lessor for insurance coverages appropriate to the scope of work for each subcontractor or supplier of any tier who operates, works on, or in proximity to or otherwise utilizes Equipment. If a subcontractor or supplier is not insured as required by law or the Agreement, then Lessee shall endorse each such subcontractor onto applicable insurance policies of Lessee as another named insured and provide written confirmation to Lessor prior to Lessee’s receipt of Equipment.
    7. Lessee’s insurance, and that of its subcontractors and suppliers of any tier, shall be endorsed to be primary for all covered claims. There shall be no right of contribution against Lessor’s insurance or insurer.
    8. Lessee shall furnish to Lessor suitable evidence confirming existence of insurance coverage required to be maintained by Lessee and its subcontractors hereunder prior to Lessor’s release of Equipment or Operators, including without limitation copies of certificates of insurance.
    9. Evidence shall include Additional Insured Endorsement on ISO form CG 20 10 04 13 (or substitute form providing equivalent coverage) and CG 20 37 04 13 (or substitute form providing equivalent coverage) naming the Contractor and Owner as Additional Insured.
    10. Insurance policies shall each provide Waiver of Subrogation and Additional Insured coverage in favor of Lessor. Lessee shall cause all subcontractors of any tier who utilize, work on, or otherwise work in proximity to Equipment to issue a waiver of subrogation in favor of Lessor with respect to required coverage.
    11. All insurance policies shall state that Lessor will be notified in writing thirty (30) days prior to cancellation, material change, or non-renewal of insurance.
    12. Lessee will not change or terminate said policies without written consent of Lessor.
    13. Lessor’s receipt of, or failure to object to, any insurance certificates or policies submitted by Lessee does not release or diminish in any manner the liability or obligations of Lessee or constitute a waiver of any insurance requirements under this Agreement.
    14. Lessee hereby releases, and shall cause its subcontractors and suppliers of any tier to release, Lessor and the other Indemnitees from any and all claims or causes of action whatsoever which Lessee or its subcontractors and suppliers might otherwise possess resulting in or from or in any way connected with any loss covered or which should have been covered by insurance (including the deductible portion thereof) maintained or required to be maintained under this Agreement.
    15. At all times prior to return of Equipment to Lessor and acceptance by Lessor, Lessee shall actively protect Equipment from all theft, loss, vandalism, or damage from any cause whatsoever, shall bear the exclusive risk of loss or damage to Equipment, and shall repair or replace, at Lessee’s sole cost, any portion or all of Equipment which is lost, damaged, or destroyed irrespective of cause.
    16. At all times prior to release of an Operator, Lessee shall actively protect the Operator from all harm, loss, or damages from any cause whatsoever and shall bear the exclusive risk of personal injury or death of an Operator irrespective of cause.
    17. All insurance policies shall be endorsed to provide that the insurance afforded to an additional insured will not be limited to the minimum requirements of this Agreement, and that the amount of insurance available shall be for the full amount of loss up to policy limits of liability.
    18. Lessor shall have the right to require Lessee to acquire a bond in favor of Lessor for the full fair market value of the Equipment if Lessor reasonably determines that Lessee’s insurance coverage (whether third-party or through self-insurance) is insufficient to protect against the loss of the Equipment.
    19. The operation, storage, or use of equipment or operators under this agreement, and the consequences thereof, shall be at the exclusive risk of lessee. To the fullest extent permitted by governing law, Lessee shall and does hereby agree to indemnify, defend, and hold forever harmless Lessor, its affiliated companies, and the successors, assigns, trustees, officers, directors, shareholders, employees, and agents of the foregoing (collectively the “Indemnitees”) from and against all allegations, claims, damages, losses, fines, liens, causes of action, suits, judgments, and expenses, loss of commissions, including attorneys’ and other professional fees, of any nature, kind, or description (collectively, the “Liabilities”) asserted by any person or entity, arising on account of or in connection with:
        1. The sickness, bodily or personal injuries to, or the death of, any person or persons employed by Lessee or over whom lessee exercises direct or indirect control, including without limitation any subcontractor, supplier, or agent to Lessee of any tier even to the extent that Liabilities are caused or contributed to by the concurrent or sole negligence, fault, or strict liability of any Indemnitee(s);
        2. Damage to real or personal property, including without limitation the project or the loss use thereof;
        3. Damage or losses due to the loss of use of the Equipment; or
        4. Damage or harm to any of the Indemnitees.
    20. Except as provided in subsection 10.18(a), supra, the obligations of Lessee under this indemnification shall NOT apply to the extent that the Liabilities have been conclusively determined by the final unappealable ruling of a court of competent jurisdiction to have been caused by lessor’s negligence or other fault.
    21. Lessee’s defense obligations hereunder shall apply until the claim is established by final judgment to have been caused by the exclusive gross negligence or willful misconduct of the Indemnitees seeking indemnification, in which event such Indemnitees shall either pay the claimant directly in satisfaction of the Indemnitees’ liability or reimburse Lessee the amounts paid by Lessee to the claimant in satisfaction of the Indemnitees’ liability.
    22. All indemnification obligations set forth herein shall survive the termination of this Agreement regardless of the reason for termination.
    23. This indemnity provision also applies to any claims asserted against Lessor based upon strict or product liability causes of action.
    24. In furtherance of the indemnity provisions, Lessee expressly and specifically agrees that the foregoing obligation to indemnify shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity Lessee enjoys from suits by its own employees.
    25. In the event that a court of competent jurisdiction determines that one or more of the preceding provisions is unenforceable for any reason, then the terms hereof shall be deemed amended to the minimum extent necessary to be enforceable under applicable law.
11. TITLE
    1. Superior title in and to Equipment shall, at all times, remain with Lessor.
    2. Nothing contained in this Agreement shall in any way be construed as conveying to Lessee any right, title, or interest in or to Equipment except as a lessee or temporary possessor.
    3. Lessee shall not allow any lien, levy, or encumbrance to be placed against Equipment.
    4. Lessee shall immediately notify Lessor in writing if any levy, lien, encumbrance, or seizure is threatened or occurs.
    5. Lessee shall, at its own cost, cause such lien, claim, levy, or seizure to be cancelled, dissolved, and released.
    6. The terms and conditions of a special agreement between Lessor and Lessee to convey title to Equipment after a specified number of Rental Payments, if any, will be set forth in a separate written agreement.
    7. Lessee bears all risk of loss or damage to Equipment until Lessor accepts delivery of Equipment at Lessor’s premises.
12. DEFAULT
    1. The following acts or omissions constitute a material default of this Agreement:
       1. Failure to make any Rental Payment when due;
       2. Attempting to sell or encumber the equipment;
       3. Failure to return the Equipment on or before the Estimate Return Date;
       4. Initiating or having initiated against Lessee proceedings in any bankruptcy;
       5. Making an assignment of all or any portion of Equipment for the benefit of creditors;
       6. Allowing any writ, attachment, or execution to be levied against Equipment;
       7. Failing to fully and timely comply with any other provision of this Agreement.
    2. Lessor may terminate Lessee’s rights under this Agreement upon delivering written notice of same to Lessee, in which event Lessee shall deliver Equipment to Lessor in good working condition and order and shall release any Operator upon demand.
    3. In the event of default, Lessor shall have the right to enter upon any site on which Equipment is being used or stored for purposes of repossessing Equipment without notice to Lessee or legal process.
    4. Lessee agrees to pay all costs incurred by Lessor in obtaining possession of Equipment and returning same to Lessor’s designated location, including without limitation all transportation, storage, and freight related to same, together with all unpaid Rental Payments, damages for injury to Equipment or failure to properly maintain same, actual and consequential damages, legal expenses, and costs of court.
13. DISPUTE RESOLUTION
    1. As a condition precedent to Lessee’s initiating any dispute resolution process hereunder, Lessee must affirmative certify by affidavit that Lessee is in strict compliance with each and every term of the Agreement. This condition precent shall expressly apply to Lessee’s representations and warranties as herein provided.
    2. Excluding disputes arising solely from Lessee’s failure to make any payment due hereunder, if a dispute arises out of or in any way relates to this Agreement or its breach, then the claimant shall submit its claim to the other Party in writing, providing sufficient detail of the nature, extent, and requested resolution of the dispute to permit reasonable understanding of the basis of such dispute. The parties shall thereafter agree to attempt to resolve the dispute by participating in informal and private negotiations, not to last more than thirty (30) days. Each Party will pay its own costs, plus an equal share of the costs incurred in furtherance of such negotiations.
    3. Mediation shall not be a condition precedent to Lessor’s initiation of arbitration or filing of a lawsuit for claims related to Lessee’s payment of Rental Payment.
    4. If a dispute between Lessor and Lessee has not been resolved after as otherwise expressly provided herein, Lessor shall have the exclusive right to require Lessee to arbitrate in an arbitration administered by the American Arbitration Association any and all claims, disputes, and other matters in question, arising out of, or relating to the Agreement, or the breach thereof, in Bexar County, Texas, before a neutral arbitrator in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect.
    5. The foregoing agreement to arbitrate, if elected by Lessor, shall be specifically enforceable and shall be concluded as soon as reasonably possible.
    6. For disputes in which the amount in controversy is less than $100,000, there shall be no discovery other than a complete exchange of documents relative to the dispute. Such exchange shall be completed not later than thirty (30) days following the initial demand for arbitration. The hearing on the merits will be completed no later than ninety (90) days after the initial demand for arbitration.
    7. For disputes in which the amount in controversy is between $100,000 and $500,000, there shall be no discovery except for a complete exchange of documentary information and except for the taking of up to three (3) depositions per side (including expert depositions, if any). The hearing on the merits will be completed no later than one hundred eighty (180) days after the initial demand for arbitration.
    8. For disputes in which the amount in controversy exceeds $500,000, there shall be no discovery except for a complete exchange of documentary information and except for the taking of up to five (5) depositions per side (including expert depositions, if any). No formal interrogatories, requests for admissions, or formal requests for production of documents shall be allowed under any arbitration process. The hearing on the merits will be completed no later than one (1) year after the initial demand for arbitration.
    9. The award shall be rendered in writing and include an award of such interest, attorneys’ fees, experts’ fees, arbitration fees, and costs as the arbitrator deems reasonable and just as herein provided. The award will be final and binding, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
    10. This agreement is subject to the Federal Arbitration Act, 9 U.S.C. §§1-16, as well as its corresponding Texas counterpart, the Texas Arbitration Act, Texas Civil Practice and Remedies Code Chapter 171. If all parties to a dispute are subject to Texas jurisdiction, then the Texas act shall apply.
    11. All matters relating to the validity, performance, or interpretation of this Agreement shall be governed by the laws of the State of Texas.
    12. For purposes of enforcement of this Agreement, Lessor and Lessee acknowledge and agree that Bexar County, Texas shall be the place of performance of this Agreement, and all disputes concerning or arising out of this Agreement shall be resolved in such county.
    13. To the maximum extent allowed by law, no dispute arising from or pertaining to this agreement, or arising between the parties hereto regarding the subject matter hereof, shall be determined before a jury. Each Party hereto expressly waives any and all rights to demand a jury trial regarding such disputes.
    14. All proceedings under this Agreement shall be done under confidentiality terms that protect the parties’ information no less than the terms of this Agreement.
    15. To the maximum extent permitted by law, Lessee shall have no right to assign one or more causes of action arising out of or in connection with the Agreement.
14. CONTRACTUAL RIGHT TO OFFSET
    1. As a material inducement of Lessor to enter into this Agreement, Lessor has relied, in part, on Lessee’s reputation in its respective industry. If Lessee has more than one concurrent agreement with Lessor for rental of Equipment or Operators, and Lessee breaches or violates one or more such concurrent agreements, then Lessor shall, in Lessor’s sole discretion, have the right to cancel any and all then existing agreements and to use such remedies as therein allowed.
    2. If Lessee is entitled to refund or payment of any amount for any reason hereunder, Lessor shall have the right to offset against such payments any other monies or amounts Lessee fails or has failed to pay to Lessor.
15. WARRANTY
    1. Lessee understands, acknowledges, and agrees that Equipment being rented may be USED and is being rented by Lessee strictly on an “AS-IS/WHERE-IS” basis with all known and unknown faults accepted.
    2. Lessor makes no express or implied representations or warranties of any kind whatsoever regarding Equipment or Operators, including without limitation any warranty of merchantability, fitness for its intended purpose, design operation, quality, skill, training, experience, or the absence of any defect, other than those warranties that may be expressly and specifically set forth in writing in this Agreement. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DENIED.
    3. Lessee further understands, acknowledges, and agrees that any Operators provided by Lessor under this Agreement will hold valid licenses to operate the subject Equipment.
16. LIMITATION OF LIABILITY; Liquidated Damages
    1. Lessee hereby expressly waives all indirect, consequential, and special/exemplary damages of any kind, nature, or extent whatsoever against Lessor.
    2. Lessee further waives all damages and claims arising from or in any way related to any defect in or failure of Equipment, any repairs or maintenance to same, and any delays resulting therefrom.
    3. Notwithstanding any other provisions in this Agreement to the contrary, the total liability of Lessor, including its affiliates, trustees, officers, directors, employees, insurers, subcontractors, vendors, and agents to Lessee and Lessee’s affiliates, insurers, successors, and agents, shall be limited to actual damages not to exceed, in the aggregate, the total amount of all Rental Payments received by Lessor from Lessee.
    4. This limitation of liability applies to all liability arising from or in any way related to Equipment or Operators, irrespective of whether such liability arises in contract, warranty, statute, tort, or otherwise, or whether such liability arises out of Lessor’s sole or concurrent negligence or breach of any standard of strict liability.
    5. The limitations of this Section 16 will survive the termination of this Agreement.
    6. In the event that Lessor has notified Lessee of Lessor’s need to have possession of the Equipment on or after the Estimated Return Date, and Lessee fails to return the Equipment in full working order on or before the date provided by Lessor; Lessee shall be liable to Lessor for liquidated damages of $2,000.00 per day until the Lessee returns the Equipment in full working order to the Lessor. If the Equipment is returned, but requires maintenance or repairs to restore proper and safe functions, the liquidated damages shall apply until the Equipment is restored to full working order. Lessor shall be diligence in the prosecution of such maintenance or repairs. Liquidated damages for repairs and maintenance shall not exceed thirty (30) days. There shall be no cap on liquidated damages for Lessee’s utter failure to return the Equipment. The liquidated damages shall be in addition to claims for unpaid rent, if applicable.
    7. The Parties agree that it would be difficult to determine the damages that Lessor would incur in this limited instance. Additionally, the Parties agree that the damages herein specified are fair.
17. Representations and Warranties; Conditions Precedent
    1. At all times during Lessee’s performance under the Agreement, Lessee represents and warrants that the following are true and correct:
    2. Lessee is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, and is qualified to do business in all jurisdictions where the Equipment will be used;
    3. Lessee has full corporate or entity power and authority to enter into this Agreement, and the person(s) executing this Agreement have been duly authorized to bind Lessee;
    4. This Agreement constitutes a legal, valid, and binding obligation of Lessee, enforceable in accordance with its terms;
    5. All financial information provided to Lessor (including credit applications, financial statements, and project bonding information) is true, complete, and fairly presents Lessee’s financial condition;
    6. No material adverse change has occurred in Lessee’s financial condition since the date of the most recent financial information provided;
    7. Lessee has adequate financial resources to fulfill all obligations under this Agreement, including insurance, indemnification, and payment obligations;
    8. Lessee is not insolvent, has not made any assignment for benefit of creditors, and no bankruptcy/insolvency proceedings are pending or threatened;
    9. No litigation, arbitration, or administrative proceedings are pending or threatened that could materially affect Lessee’s ability to perform or the Equipment’s use;
    10. The Lessee provided information is correct and complete;
    11. The Lessee provided locations, projects, contractors, and owners are correct and complete;
    12. The persons operating the Equipment are qualified to operating the grade, type, and in the conditions under which Lessee plans to operate;
    13. Lessee has relied on Lessee’s own judgment in the selection of the Equipment, as well as the stipulation of the Estimated Return Date;
    14. Lessee has relied on Lessee’s own judgment in the acceptance of one or more Operators, if any;
    15. Lessee is not engaged in a self-insurance program, but if it is, it has disclosed such circumstances to Lessor prior to the Equipment entering Lessee’s Custody; and
    16. Lessee has no plan or intention to sublease the Equipment.
18. MISCELLANEOUS
    1. Lessor may assign all or any portion of its rights, title, or interest under this Agreement or to Equipment to a third party without prior notice to Lessee. Lessee shall continue to fulfill each of its obligations under this Agreement to the designated assignee upon receipt of written notice of same from Lessor. Lessee may not assign this Agreement or the use of Equipment to any third party without Lessor’s express prior written permission. Any assignment without such permission shall be void.
    2. No action or failure to act by Lessor shall constitute a waiver of a right afforded Lessor under the Agreement or by operation of law, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. No course of action shall constitute a modification of this Agreement.
    3. In the event there are any legal limitations now or hereafter in effect that may affect the validity or enforceability of any provision of this Agreement, such legal limitations are hereby made a part of this Agreement by reference and shall operate to amend the Agreement to the minimum extent necessary to bring the applicable provisions into conformity with the requirements of such limitations. As so modified, the obligations and provision hereunder shall continue in full force and effect. Each provision of the Agreement shall be deemed independent of all other provisions. The invalidity of any part or provision of the Agreement shall not impair or affect, in any manner whatsoever, the validity, enforceability, or effect of any other provision.
    4. If any action in arbitration, at law, or in equity is necessary to enforce or interpret the terms of this Agreement, if Lessor is the prevailing Party, then Lessor shall be entitled to reasonable attorneys’ fees, engineers’ fees and other professional fees, costs, and necessary disbursements, in addition to any relief to which it may be otherwise entitled.
    5. In the event of any dispute between the parties as to the meaning or application of the Agreement, the parties stipulate and agree that both parties participated in the drafting of these documents such that the documents should be interpreted fairly and reasonably and neither more strongly for nor against either Party. This term is material and is offered by the Lessee as an inducement to Lessor to enter into the Agreement.
    6. The duties and obligations imposed by the Agreement and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed or available by law. Nothing herein shall constitute, or be construed to be, an election of available remedies so as to exclude any remedy provided by law.
    7. Lessee shall execute such reasonable commercial or similar documents ordinarily or customarily exchanged in the line of business of Lessee or Lessor with no additional compensation and at the request of Lessor, including without limitation lien releases or waivers, bond claim releases or waivers, general waivers, or similar documents.
    8. All pricing stated in this agreement is subject to equipment availability. Should FD Rentals be unable to deliver the designated equipment, this agreement shall be null and void.

[END OF TERMS AND CONDITIONS]