These terms and conditions (“Terms and Conditions”) apply to the proposal, quotation, offer, service order, sales order, rental order, lease schedule, invoice or other ordering document into which these Terms and Conditions are incorporated or attached (each, an “Order”). The term “Agreement” means the Order together with these Terms and Conditions and any schedules, exhibits and amendments hereto and thereto. The words “you” and “your” mean you, our customer as identified on the Order. The words “we” and “us” and “our” mean Modern Group Ltd. or, as applicable, the Modern Group affiliate that is party to the Order. Each Order constitutes a separate and independent agreement between you and us. The Order, including these Terms and Conditions and all exhibits, riders and amendments, constitutes the entire agreement between you and us and supersedes all prior agreements and understandings with respect to the subject matter thereof.
Our offer to rent, lease or sell the equipment (“Equipment”) or other goods (together “Products”) and/or provide the services (“Services”) identified in an Order or, as applicable, our acceptance of your offer to rent, lease or purchase Products or Services is expressly conditioned upon your acceptance of these Terms and Conditions and all other terms and conditions referenced in or attached to the Order, including our quotation, as applicable. Any additional or different terms or conditions which may appear in any communication from or to you, whether sent prior to, contemporaneously with or after our quotation, order or acceptance is delivered, are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by us as part of the Order. No such additional or different terms or conditions in any printed form you deliver, including any purchase order or acceptance, shall become part of the agreement between the parties despite our acceptance of any purchase order or delivery of product unless such acceptance specifically recognizes and assents to their inclusion and is signed by our authorized agent. Your purchase order is solely for the purpose of evidencing your binding commitment under the order or quote. You agree that our signature on any purchase order, acceptance or other document provided by you is provided solely (i) as an accommodation to you for your internal administrative purposes only, (ii) does not signify our agreement to any terms or conditions contained therein which vary, conflict with, or impose additional obligations to the provisions set forth in this Agreement and (iii) shall be void and of no force or effect and shall not alter, modify, amend or otherwise change the terms of this Agreement. Any objection to our quotation, order or acceptance of your offer, including the terms and conditions hereof, shall, at our election, be deemed a rejection of our offer.
Each Order is contingent upon credit approval by us in our sole discretion and timely completion of all such documentation as we may require. Unless otherwise stated therein, proposals, offers and quotations are subject to change without notice prior to mutual execution of an Order. We reserve the right to require a purchase order for any Order.
Equipment Rental and Lease. If the Order includes the rental or lease of equipment, the terms and conditions in Sections 1 through 12 and 19 through 35 hereof apply to the Order in addition to any other terms and conditions hereof that apply to the Order. If the Order does not include Services, Sections 15 through 18 do not apply to the Order. If the Order does not include the sale of goods (other than an end-of-term purchase option or purchase obligation for leased equipment), Sections 13 and 14 do not apply to the Order.
1. EQUIPMENT; ACCEPTANCE. We agree to rent or lease to you and you agree to rent or lease the Equipment from us (the terms “rent” and “lease” are used interchangeably in this Agreement). You certify that the Equipment will be used for business purposes only, and not for personal, family or household purposes. We will deliver the Equipment to you at the delivery location stated in the Order (“Delivery Location”). You will promptly accept or, for good cause, reject the Equipment upon delivery and, if accepted, you will promptly sign and deliver a delivery receipt or acceptance certificate in the form we provide. You agree that the person who receives the Product and signs such acceptance certificate, whether your employee or not, shall be deemed authorized to execute such certificate on your behalf if we reasonably understand such person to be receiving the Product on your behalf.
2. TERM. The term of the Order starts on the date that any of the Equipment is accepted by you (“Commencement Date”) and continues for the minimum term stated in the Order (“Minimum Term”). The Minimum Term, together with any renewals or extensions as permitted hereunder, is hereinafter referred to as the “Term”. YOU AGREE THAT THE ORDER MAY NOT BE TERMINATED OR CANCELLED PRIOR TO EXPIRATION OF THE MINIMUM TERM; THAT YOU HAVE AN UNCONDITIONAL OBLIGATION TO MAKE ALL PAYMENTS DUE UNDER THE ORDER ACCORDING TO THE TERMS THEREOF; AND THAT YOU CANNOT WITHHOLD, SET OFF, ABATE, DEFER OR REDUCE SUCH PAYMENTS FOR ANY REASON WHATSOEVER. Orders with a Minimum Term of less than 12 months are hereinafter referred to as “Rental Orders” and Orders with a term of 12 months or more are hereinafter referred to as “Lease Orders”. If a Lease Order includes Services or supplies to be provided by us following the Commencement Date, you agree that the lease of the Equipment and the delivery of such Services and supplies constitute separate and independent agreements notwithstanding their documentation on a single Order. Unless otherwise stated on the Order, each Lease Order is a net lease.
3. RENTAL ORDER END OF TERM; RENEWAL. This Section applies only to Rental Orders. At the end of the Minimum Term, if any, the Term of your Rental Order will automatically renew on a week-to-week basis at the same Rent until the Equipment is returned to us in accordance with this Agreement. Notwithstanding the foregoing, on three (3) business days’ prior notice to you, we may increase the Rent to our then current rates for like equipment or require you to return the Equipment to us and, if you fail to do so within such period, charge holdover rent at 120% of the then current Rent.
4. LEASE ORDER END OF TERM OPTIONS; RENEWAL. This Section applies only to Lease Orders. If your Lease Order includes a Purchase Option or Purchase Obligation, at the end of the Minimum Term (or any renewal term), if no Default exists, you may purchase all (but not less than all) of the Equipment at the Purchase Option or Purchase Obligation price set forth in the Order, plus tax. Unless the purchase option price is $1.00 or the Order contains a Purchase Obligation, you must give us at least 90 days and not more than 120 days’ written notice before the end of the Minimum Term that you will purchase the Equipment at the end of the term or that you will return the Equipment to us. Such notice shall be deemed irrevocable and a binding commitment by you. If you have a purchase option and do not give us timely written notice or, having given us timely written notice, if you do not remit the purchase price and all other amounts due to us under the Order on or before the last day of the then current Term, your purchase option shall be deemed waived. If you do not exercise your purchase option or it is waived or if you do not have a purchase option and you do not deliver the Equipment to us in accordance with the Order on or before the last day of the then current term, the Order will automatically renew on a month-to-month basis until you give us notice as stated above or we give you notice. During any such renewal terms the Rent will be the greater of the current Order rate or our then effective weekly rental rate for like equipment; provided, however, that on seven (7) days’ prior notice to you, we may charge holdover rent at 120% of the then current Rent. If the Order includes a fair market value Purchase Option, we will use our reasonable judgment to determine the Equipment fair market value, which will be determined on an in-place value. Upon payment of the purchase price, we will transfer our interest in the Equipment to you “AS IS, WHERE IS” without any representation or warranty whatsoever and the Order will terminate.
5. RENT AND FEES. You agree to pay us the rent and other fees stated in the order (“Rent” and “Fees”) together with applicable taxes when and as indicated in the Order or our invoice. The Rent may include charges for delivery, set-up, services, supplies and/or taxes. If the Order does not specifically state that such charges are included in the Rent, all such charges shall be in addition to the stated Rent. For all Equipment with usage meters, Rent is based on use of the Equipment for not more than eight hours per day. If the Equipment is used for longer than eight hours per day, overtime rates will apply. At our request, you will make all payments by ACH or credit card. All credit card payments are subject to a 3% surcharge. We may invoice you by email at your designated address. We reserve the right to charge a processing fee for paper invoicing and termination of ACH payment. We may at any time elect to forbear upon any or all late fees or default interest. Our forbearance upon late fees and/or default interest and/or our failure to invoice late charges and/or default interest shall not at any time constitute a waiver of our right to collect any or all late fees and/or interest under the Order.
6. EQUIPMENT INSPECTION. We represent that we have inspected each item of used Equipment subject to an Order and each item of new Equipment subject to a Rental Order (unless such item of New Equipment was delivered to you by the supplier and not in our possession prior to delivery to you) and that such Equipment is in good condition and repair and acceptable for use as specified in this Agreement. Our sole obligation, and your sole remedy, if such Equipment is not in such condition is for us, at our option, to promptly repair or replace such Equipment or, if we cannot do so on a timely basis, refund applicable pre-paid Rent and Fees. We do not inspect new Equipment subject to a Lease Order. You agree to provide appropriate daily inspection prior to use of the Equipment. If you become aware that any item of Equipment is or may not be in safe operating condition, you shall immediately discontinue use of such Equipment until restored to safe operating condition.
7. LOCATION, USE, REPAIR AND RETURN. You agree to keep the Equipment free from liens, claims and encumbrances other than those arising by or through us. Unless the Equipment is intended to be mobile equipment, you will keep and use the Equipment only at the Equipment location address set forth on the Order and will not move the Equipment without our prior written consent. Excepting Services to be provided by us under the Order or a separate Services Order, you will, at your own cost, keep the Equipment and return it in as good condition as when you received it, ordinary wear and tear eligible from proper use only excepted, regardless of cause. If the Equipment is subject to a Lease Order, you will, in addition, keep the Equipment eligible for all manufacturer certifications and in compliance with all applicable laws. WARRANTY REPAIRS BY ANYONE OTHER THAN A PERSON APPROVED BY THE MANUFACTURER FOR WARRANTY REPAIR MAY VOID THE MANUFACTURER’S WARRANTY. YOU MAY NOT MAKE ANY WARRANTY REPAIRS WITHOUT OUR PRIOR WRITTEN CONSENT. FAILURE TO COMPLY WITH THE FOREGOING CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT FOR WHICH WE MAY REQUIRE YOU TO PURCHASE THE EQUIPMENT. You will not make any alteration, addition or replacement to the Equipment without our prior written consent. All alterations, additions and replacements will become our property at no cost to us. We may inspect the Equipment during normal business hours and you will provide us with the Equipment location when requested. Unless you purchase the Equipment at the end of the Term, you will immediately deliver the Equipment, in the above-described condition, to the location directed by us unless the Order provides for return at your location, in which case you will make the Equipment immediately available for our recovery. Unless we are responsible for return costs under the Order, you will pay all shipping and other expenses, including freight insure. If any Equipment is not returned in the condition required hereunder, you will continue to pay rent for the Equipment, at our then current weekly rental rate or, if more, the Order rate, following its return to us for the number of days required to repair the Equipment to such condition, as reasonably determined by us, and you will reimburse us on demand for all repair costs at our then current labor rates together with any out-of-pocket expenses we incur, including without limitation third-party inspection and transportation costs. At all times, you will operate the Equipment in a careful and safe manner and in compliance with all applicable laws and regulations; not allow anyone other than your employees to use the Equipment; allow only competent and properly trained and licensed persons to operate the Equipment; perform all daily and other periodic safety inspections; and provide at your expense all fuel, lubricants, battery water, coolants and other supplies required for the proper operation of the Equipment during the Term, each of which shall comply with the applicable manufacturer’s recommendations. Accrued or prepaid Rent cannot be applied against the purchase or cost of repair of damaged or lost Equipment.
8. MAINTENANCE BY US. If the Order provides that we will maintain the Equipment, you are responsible for timely notifying us of the need for unscheduled maintenance and making the Equipment available in a safe and reasonable manner for our performance of such maintenance. Unless otherwise stated in the Order, Services included in any Order cover labor and material for adjustments, repairs and replacement of parts only as necessitated by normal use of the Equipment. You will be responsible, at our then current rates for parts, labor and travel for the cost of any damage, malfunction, or degradation of performance resulting from (a) attempts by personnel other than our representatives to install, repair or service the Equipment; (b) improper use or connection to incompatible equipment; (c) use of supplies or consumables not specified for use with the particular Equipment; (d) your failure to perform standard user maintenance and cleaning in between scheduled periodic maintenance by us; and (e) misuse, abuse, negligence or causes beyond our control, including electrical surges, acts of God and natural disasters.
9. TAXES. You agree to pay when due or reimburse us for all taxes, fines, and penalties (collectively, “Taxes”) relating to the Equipment or the Order now or hereafter imposed or assessed, whether or not such Taxes are included in the price stated on the Order. If the Order is a Lease Order and gives you the right to purchase the Equipment at the end of the Term for less than fair market value, you are responsible for and shall timely pay all personal property tax on the Equipment; otherwise, we are responsible for personal property tax and you will reimburse us for such property tax as invoiced. You agree to pay estimated property taxes as invoiced by us. We do not have to contest any Tax.
10. CASUALTY AND INSURANCE. Except for ordinary wear and tear, you are responsible for protecting the Equipment from damage and loss of any kind. If the Equipment is damaged or lost, you will continue to pay the amounts due and to become due hereunder without setoff or defense. During the Term, you will (a) insure the Equipment against all loss or damage for full replacement value naming us as sole loss payee; (b) obtain third-party general liability insurance (covering death and personal injury) with a minimum limit of $1,000,000 combined single limit per occurrence (or such other amount as we reasonably request) and third-party property damage insurance, naming us as an additional insured; and (c) deliver satisfactory evidence of such coverage with carriers, policy forms and amounts acceptable to us. All policies must provide that we will be given 30 days’ written notice of any material change or cancellation. If you do not provide evidence of acceptable insurance, we have the right, but no obligation, to obtain insurance covering our interest in the Equipment for the term and any renewals and, if we do, you will pay us as invoiced for the insurance premium and an administrative fee, upon which we may make a profit. Insurance we obtain will not insure you against third party claims and may be cancelled by us at any time. You will cooperate with us, our insurer and our agent in the placement of coverage and with claims. If you provide evidence of acceptable insurance, we will cancel the insurance we obtained. Upon any loss or damage to any item of Equipment, you will promptly notify us and, with our consent (not unreasonably withheld), promptly either repair or replace the Equipment with comparable items satisfactory to us, provided that upon loss or damage beyond economical repair (as determined by us) we may require you to pay us the present value of all future Rent with respect to such item of Equipment and our booked residual in the Equipment, each discounted at 3% per annum, less any proceeds we receive from the insurance described herein. We may elect to replace any lost or destroyed item of Equipment, in which event the Order shall continue in full force and effect with respect to such replacement item of Equipment. You authorize us to sign on your behalf and appoint us as your attorney-in-fact to endorse in your name any insurance drafts or checks issued due to loss or damage to any Equipment. Nothing in this section relieves you of responsibility for insurance coverage or payments under the Order.
11. SECURITY DEPOSIT; SECURITY INTEREST; FINANCIAL INFORMATION. Upon satisfaction of all of your obligations under the Order and determination of repair charges for Equipment returned with damage, we will return your security deposit after deducting any outstanding amounts owed by you to us. Security deposits do not earn interest and are not required to be segregated by us. Unless the Order gives you the right to purchase the Equipment for one dollar or obligates you to purchase the Equipment (“Purchase Obligation”), we retain title to the Equipment. In the event the Order contains a nominal purchase option or a Purchase Obligation or is deemed a sale, you hereby grant us a security interest in the Equipment (including any replacements, substitutions, additions and attachments) and all proceeds thereof to secure your obligations under the Order. You authorize us to file financing statements to protect our interests in the Equipment; provided that if the Order is a true lease, such filing is precautionary only and not evidence of a transfer of title to you. You agree the Equipment is personal property, regardless of the manner of installation. The Order is subordinate to any lease pursuant to which we lease the Equipment from another person. Upon request you will promptly provide us with financial information we deem reasonably necessary to determine your financial condition, including tax returns and compiled, reviewed or audited financial statements.
12. CONFESSION OF JUDGMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU IRREVOCABLY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR YOU IN ANY SUCH COURT (UPON THE OCCURRENCE OF A DEFAULT HEREUNDER) AT ANY TIME TO WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND TO CONFESS AND ENTER JUDGMENT AGAINST YOU AND IN FAVOR OF US FOR SUCH AGGREGATE AMOUNT AS IS UNPAID, WITH ACCRUED INTEREST, TOGETHER WITH COSTS AND ATTORNEYS’ FEES EQUAL TO FIVE PERCENT (5%) OF THE INDEBTEDNESS THEN DUE HEREON. YOU HEREBY RATIFY AND CONFIRM ALL THAT THE ATTORNEY MAY DO BY VIRTUE HEREOF AND WAIVE AND RELEASE ALL ERRORS WHICH MAY INTERVENE IN SUCH PROCEEDINGS. IF A COPY OF THIS NOTE SHALL BE PRODUCED IN ANY PROCEEDING BROUGHT UPON THE WARRANT OF ATTORNEY CONTAINED IN THIS PARAGRAPH, SUCH COPY SHALL BE CONCLUSIVE EVIDENCE OF SUCH ATTORNEY’S AUTHORITY TO TAKE THE ACTION SPECIFIED HEREIN AND IT SHALL NOT BE NECESSARY TO PRODUCE THE ORIGINAL INSTRUMENT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER. This Section shall not apply in any state where it is prohibited by law.
Sale of Equipment and Supplies. If the Order includes the sale of Products, the terms and conditions in Sections 13, 14 and 19 through 35 hereof apply to such sale in addition to any other terms and conditions hereof that apply to the Order. If the Order does not include the rental or lease of Equipment, Sections 1 through 11 do not apply to the Order. If the Order does not include Services, Sections 14 through 17 do not apply to the Order.
13. TERMS OF SALE. Each Order for the sale of Products is a binding, non-cancelable purchase commitment. All freight, insurance and other shipping expenses, as well as any packing expenses not included in the Order or quote, as applicable, shall be at your expense.
14. LIMITED WARRANTY. For new Products, the only warranty available to you is the warranty provided by the manufacturer of the Products. We offer no additional warranties. For used Products, unless otherwise stated on the Order, Modern disclaims all warranties.
Services. If the Order includes Services, the terms in Sections15 through 35 hereof apply to the Order in addition to any other terms and conditions hereof that apply to the Order. If the Order does not include the rental or lease of Equipment, Sections 1 through 12 do not apply to the Order. If the Order does not include the sale of Products (other than an end-of-lease-term purchase option or purchase obligation), Sections 13 and 14 do not apply to the Order.
15. SERVICES. We will provide the Services in a commercially reasonable manner and with good workmanship. The Order covers only the equipment and work specified therein. We reserve the right to charge additional amounts for additional work performed at your request or necessitated by unanticipated conditions, not to exceed 10% of the quoted cost without your prior consent. The term “Services” includes such additional services. Unless otherwise stated in the Order, we will charge for labor at our standard labor rates in effect on the date Services are performed. Any invoice for Services not disputed within 15 days following the invoice date shall be deemed accepted and properly payable.
16. TRIP CHARGES. A trip charge will be incurred for all service calls to any Equipment location exceeding 60 miles round-trip from our nearest office. Each mile in excess of such amount will be charged at the IRS-approved rate at the time of service.
17. LIMITED WARRANTY. We warrant for 30 days after performance that the Services will be free from material defects in workmanship by us. All parts and supplies provided in connection with the Services shall be subject to the applicable manufacturer’s or supplier’s warranty and are not independently warrantied by us unless otherwise stated on the Order. For Services performed on equipment owned by you, we will use only new parts unless you otherwise agree. Labor and supplies required to replace defective parts on equipment not subject to a Rental Order shall be at your cost except to the extend paid for by the manufacturer.
18. PERSONNEL; INDEPENDENT CONTRACTOR. We reserve the right to determine the assignment of our employees and third-party contractors in providing Services. We are an independent contractor and neither of the parties shall be deemed to be an agent of the other party.
General Terms and Conditions. The following terms and conditions apply to each Order in addition to any other terms and conditions hereof that apply to the Order.
19. ORDERING; SHIPMENT. Unless otherwise stated in the Order, prices are FOB at the FOB point designated in the Order. If no FOB point is designated, delivery shall be deemed FOB our place of business. Except as otherwise stated in the Order, if you request us to arrange for shipment, we may at our own election ship to you in a commercially reasonable manner at your sole risk and expense. We may charge twenty percent (20%) of the shipping costs as an administration fee when we make shipping arrangements. Personnel travel and related costs will be as specified in the Order, or if not specified, pursuant to our then applicable rates. Prices for sales and rentals may not include the cost of personnel or equipment or aids required to install Equipment. Upon request, we will provide such personnel and equipment or aids at our then applicable rates. By executing an Order or by accepting the Products, Services, Rental or Lease, you agree to be bound by subsequent written (including by email, facsimile, text message) modifications to the Order and pricing reflected therein. Orders agreed to by you and us may be cancelled or modified by you only with our written consent. Any cancellation, modification or requested delays of an Order by you may result in a charge equal to (a) 15% percent of the quoted or estimated costs and fees if relating to standard Products and (b) our supplier’s cancelation fees plus 15% for nonstandard or special Products. Products returned after delivery are subject to a 25% restocking fee. Custom Products may not be returned without our written consent.
20. ACCEPTANCE. You must inspect the Products immediately following receipt from us or the carrier. You may reject only defective Products and only by written notice to us received within three (3) days following delivery receipt by you or your agent. Products not properly and timely rejected shall be deemed accepted. Notwithstanding the foregoing, we may require you to execute a certificate of acceptance or delivery receipt with respect to Equipment at delivery, which document shall constitute binding evidence of the visible condition of the Equipment at delivery. Defective Products rejected and returned to us in accordance herewith shall be promptly repaired or replaced, at our option, and returned freight pre-paid.
21. TITLE AND RISK OF LOSS. Title for Product sold to you under an Order and risk of loss for all Product subject to an Order shall transfer to you upon delivery of the Product to the first carrier for shipment to you or your consignee even if delivery is made prior to the arrival of the articles at the FOB point. All claims for shortages, deliveries, damages or non-delivery must be made by you or your consignee to the carrier. We shall in no event be responsible for shortages in shipment unless notice of such shortage is given in writing to the us within three (3) days after receipt of shipment.
22. DELIVERY DELAY. We will use commercially reasonable efforts to meet agreed upon delivery dates. However, we assume no liability for damages incurred as a result of late delivery of Products or Services, regardless of cause.
23. PAYMENT; TAXES. Unless otherwise stated in the Order, payment terms are net thirty (30) days after the invoice date. You shall notify us within five (5) business days after receipt of an invoice if you in good faith dispute all or any part of an invoice. The parties shall promptly attempt to resolve any dispute. Notwithstanding the foregoing, you shall pay when due the portion of any invoice that is not disputed in good faith. If any amount, other than an amount disputed in good faith, due under the Order is not made when due, you agree to pay a late charge at the rate of ten percent (10%) of such late payment; and, beginning on the 31st day after the due date, a finance charge of one and one-half percent (1.5%) per month on the delinquent balance, not to exceed the maximum rate allowable under applicable law. Unless otherwise stated in these Terms and Conditions or in the Order, all charges are exclusive of federal, state and local excise, privilege, sales, use and similar taxes and duties, each of which shall be you shall pay as invoiced unless you provide us with a valid and applicable exemption certificate. All payments received will be applied to past due amounts and to the current amount due in such order as we determine. Security deposits are non-interest bearing, may be commingled with our funds, may be applied by us at any time to past-due amounts. If any check or other form of payment is dishonored, you shall pay us a fee of $30. The unused portion will be returned to you within 90 days after the end of this Order.
24. DEFAULT; REMEDIES. Each of the following is a “Default” under the Order: (a) you fail to pay any amount within 5 days of its due date or you or any guarantor of your obligations under the Order makes any false statement or misrepresentation to us; (b) you fail to perform any of your other obligations under the Order or any other agreement with us or with any of our affiliates, and such failure continues for 10 days after notice or you fail to provide insurance required under the Order; (c) you die, become insolvent, dissolve or are dissolved, fail to pay your debts as they mature, suffer a material adverse change in financial, business or operating condition, assign your assets for the benefit of creditors, or voluntarily or involuntarily enter any bankruptcy or reorganization proceeding; (d) any guarantor of the Order dies, does not perform its obligations under, or repudiates the guaranty, or becomes subject to one of the events listed above; or (e) you or any guarantor transfers substantially all of your/ its assets or transfers a controlling interest in your/its ownership to any third party without our prior written consent. If a Default occurs, we may do one or more of the following: (i) cancel or terminate the Order and/or any or all other agreements that we have entered into with you; (ii) require you to immediately pay all unpaid amounts then due under the Order; (iii) exercise any other right or remedy available at law or in equity; and, with respect to Rental Orders and Lease Orders, (iv) require you to immediately pay us, as compensation for loss of our bargain and not as a penalty, liquidated damages in the amount of all unpaid Rent for the remainder of the Minimum Term, discounted as of the date of payment to present value at the rate of 3% per annum, which amount you agree is a reasonable estimation of our damages and not a penalty; (v) require you to deliver the Equipment to us at your expense at a location designated by us; and/or (vi) peaceably enter upon any premises where the Equipment is located and repossess the Equipment without court order in which case you will not make any claims against us for damages or trespass or any other reason other than damage to property or bodily harm caused by our gross negligence. You agree to pay all of our costs of enforcing our rights against you, including reasonable attorneys’ fees and costs. If we repossess Equipment, we may sell or otherwise dispose of it without notice at a public or private sale and apply the net proceeds (after we have deducted all related costs) to amounts that you owe us. You will remain responsible for any deficit. Our remedies are cumulative, are in addition to any other provided for by law and may be exercised concurrently or separately. Failure or delay by us to exercise any right or remedy shall not operate as a waiver thereof.
25. WARRANTY DISCLAIMER. Except as set forth in Sections 4 and 13, we are providing the Product and Services to you “AS-IS”, “WHERE IS”. YOU ACKNOWLEDGE THAT WE DO NOT MANUFACTURE THE PRODUCT AND THAT YOU SELECTED THE SAME IN YOUR OWN JUDGMENT. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE. WE SHALL HAVE NO LIABILITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, SUFFERED BY ANYONE IN CONNECTION WITH THE PRODUCT, SERVICES OR ANY ORDER. If the Order is a Lease Order, we transfer to you for the term of the Order our rights under the manufacturer’s warranty, provided that no Default has occurred and is continuing.
26. INDEMNIFICATION. Except to the extent caused by our gross negligence or willful misconduct, you are responsible for and will indemnify, defend and hold us harmless from any (a) losses, damages, penalties, claims, suits and actions (collectively “Claims”) caused by or related to the manufacture, installation, ownership, use, lease, financing, possession, or delivery of any Product; any defects in, or inadequate or non-performance of, the Product; and/or your non-compliance with this Agreement including, without limitation, failure to properly inspect Equipment prior to use or use of Equipment that you know or should know is not operationally safe; and (b) all costs and attorneys’ fees incurred by us relating to any Claim. To the extent you are obligated to indemnify, defend and hold us harmless hereunder, you will reimburse us for and, if we request, defend us with attorneys we reasonably approve, at your cost and expense, against any Claims.
27. LIMITATIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY COVER DAMAGES OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING, OR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE, ACTIVE OR OTHERWISE, OR STRICT LIABILITY), OR OTHERWISE EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY HEREUNDER (WHETHER ASSERTED ON THE BASIS OF CONTRACT, TORT, INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY) WITH RESPECT TO ANY ORDER SHALL NOT IN ANY EVENT EXCEED THE AMOUNTS RECEIVED BY US WITH RESPECT TO SUCH ORDER DURING THE 12-MONTH PERIOD PRECEDING THE EVENTS WHICH GAVE RISE TO THE CLAIM, AND IN NO EVENT MORE THAN $1,000,000. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
28. ASSIGNMENT. You may not sell, pledge, transfer, or assign any interest in any Order or sublease any Equipment subject to a Rental Order or Lease Order. We may sell, assign or transfer to any third party(ies) all or any part of our interest in any Order without notice or consent. The assignee (and its assigns) will have our rights, but none of our obligations under the Order. You may not assert against any assignee any claims, recoupment rights, defenses or set-off that you may have against us or other person. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
29. COMPLIANCE WITH LAW. Each party shall comply with all applicable laws in connection with the performance of this Agreement. Each party warrants, represents and agrees that in securing this Agreement it has complied, and in performing this Agreement it shall comply, with all applicable laws, statutes, regulations and orders relating to anti-bribery, anti-corruption, anti-money laundering, competition. Each party agrees to indemnify, defend and hold harmless the other party from and against all claims, demands, causes of action, and proceedings of every kinds and character without limit with respect to the failure of any member of the indemnifying party’s group to comply with this provision.
30. FORCE MAJEURE. Except for your obligation to make payments when due, neither party shall be liable for delays in performance or for non-performance, occasioned or caused by Force Majeure. Force Majeure means any event beyond the reasonable control of the party claiming to be affected thereby, including, without limitation, acts of God, storms, floods, war, fire, labor disputes, acts of the public enemy, public disorder, terrorism, insurrections, riots or rules or regulations of any governmental authority asserting jurisdiction or control, compliance with which makes continuance of operations impossible, or substantially increases in costs to us. Upon the occurrence of Force Majeure, the party affected shall give prompt notice thereof to the other party. If the event of Force Majeure continues for more than sixty (60) days, either party may terminate the Order.
31. ELECTRONIC EXECUTION. The Order may be signed in counterpart. You acknowledge that the Order was delivered to you in electronic format. By executing and delivering the Order you represent and warrant that the Order has not been altered or modified in any manner whatsoever from the version we sent you for execution. You agree that an electronically reproduced copy of the Order shall be fully enforceable and admissible in evidence for all purposes as if it were an original. An electronically transmitted copy of a Rental or Lease Order, when received by us and stamped “Original” or wet-ink signed by us shall be binding on you for all purposes as if originally signed by you and shall constitute the original chattel paper.
32. CREDIT. You authorize us or our authorized representatives to conduct a confidential credit inquiry on your financial responsibility and credit worthiness at any time during the term of this Agreement and you consent to our having done so in anticipation of entering into this Agreement. We reserve the right to approve or reject the credit of any customer and to establish credit terms for each customer. We may terminate this Agreement or modify credit terms at any time while furnishing Equipment, Services or Rentals to you without further liability if in our assessment your financial condition materially and adversely changes.
33. SECURITY INTEREST. You grant us and we retain a security in all Products, including all parts supplied in connection with any Services, to secure your payment obligations under the applicable Order, and you authorize us to take all steps necessary to protect such security interest, including filing of financing statements.
34. FORCE MAJEURE. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement (other than a payment obligation) to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other party
35. MISCELLANEOUS. (a) Unconditional Payment. YOU ACKNOWLEDGE THAT YOUR OBLIGATIONS UNDER EACH RENTAL AND LEASE ORDER, INCLUDING, BUT NOT LIMITED TO, YOUR OBLIGATION TO MAKE ALL RENT PAYMENTS TO US, ARE ABSOLUTE AND UNCONDITIONAL AND SHALL BE MADE TO US WITHOUT DEFENSE, ABATEMENT, WITHHOLDING, CLAIM, COUNTERCLAIM, SET-OFF OR REDUCTION FOR ANY REASON AND WILL IN NO MANNER BE AFFECTED BY ANY OTHER AGREEMENT YOU MAY HAVE WITH US OR ANY OTHER PERSON. (b) Choice of Law. The Order shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws principles. (c) Jurisdiction. You consent to the jurisdiction of any local, state or federal court located in the Eastern District of Pennsylvania and you waive any right to transfer or change the venue of any litigation brought against you by us in accordance herewith. (d) Jury Trial. YOU AND WE EXPRESSLY WAIVE TRIAL BY JURY AS TO ALL ISSUES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS. (e) Third-Party Beneficiaries. This agreement does not and is not intended to confer any rights or remedies upon any person other than the parties hereto. (f) Severability. If any provision of this Agreement is unenforceable, illegal or invalid, the remaining provisions shall continue to be effective. (g) Amendment. This Agreement may not be modified or amended except by a writing signed by you and us. You agree however, that we are authorized, without notice to you, to supply missing information or correct obvious errors in the Order. (h) Notices. All notices shall be in writing and shall be delivered to the appropriate party personally by facsimile or by private courier, or by mail, postage prepaid, at its address (or phone number) shown herein or to such other address (or phone number) as directed in writing by such party reasonably in advance. Notices delivered to you by email shall be effective if receipt is acknowledged. (i) Prepayment. Prepayment or early termination of a Rental Order or Lease Order is not permitted except as set forth in the Order or otherwise agreed to buy us in writing. (j) Assurances. You will promptly execute and deliver such other documents as we reasonably request to protect our interests hereunder and carry out the intent of the Order. (k) Survival. Sections 7, 11, 22, 24-26 and 28 of these Terms and Conditions shall survive termination of the Order. (l) Headings. Headings are for convenience only. Definitions for capitalized terms in any section of these Terms and Conditions apply to all sections whether or not such section applies to the Order. (m) Conflicts. In the event of any conflict between this General Terms and Conditions section and any other section of these Terms and Conditions, such other section shall control. In the event of a conflict between an Order and these Terms and Conditions, the Order shall control.
Guaranty Terms and Conditions. If the Order includes a guaranty, the terms “you” and “your” refer to the guarantor(s) identified on the Order and the following terms and conditions apply to such guaranty:
A. In consideration of credit and financing accommodations granted or to be granted by us to the customer identified in the Order into which these terms and conditions are incorporated (“Customer”), which Order you represent is in your best interest, and for other good and valuable consideration received, you guaranty the prompt and unconditional performance and payment by Customer of any and all obligations and liabilities pursuant to the Order and any and all other orders, leases, rental agreements or other agreements under which Customer is in any manner obligated to us, heretofore, now, or hereafter (“Liabilities”), whether the Liabilities are individual, joint, several, primary, secondary, direct, contingent or otherwise. You also agree to indemnify us and hold us harmless against any losses we may sustain and expenses we may incur, suffer or be liable for as a result of or in any way arising out of, following, or consequential to any transactions with or for the benefit of Customer.
B. If Customer fails to pay or perform any Liabilities to us when due, all Liabilities to us shall then be deemed to have become immediately due and payable, and you shall then pay upon demand the full amount of all sums owed to us by Customer, together with all expenses, including reasonable attorneys’ fees.
C. Your liability hereunder is direct and unconditional and shall not be affected by any extension, renewal or other change in the terms of payment of any agreement between us and Customer, or any change in the manner, place or terms of payment or performance thereof, or the release, settlement or compromise of or with any party liable for the payment or performance thereof, or the waiver of any default or event of default under any such agreement, or the release or non-perfection of any security thereunder, any change in Customer’s financial condition, or the interruption of business relations between us and Customer. This guaranty is and shall be deemed to be a continuing guaranty and shall remain in full force and effect until the indefeasible payment in full of the Liabilities and any other amounts payable hereunder and the cessation of all obligations of Customer to us. You acknowledge that your obligations hereunder are in addition to and independent of any agreement or transaction between us and Customer or any other person creating or reserving any lien, encumbrance or security interest in any property of Customer or any other person as security for any obligation of Customer. We need not exhaust our rights or recourse against Customer or any other person or any security we may have at any time before being entitled to payment from you.
D. This guaranty is assignable in part or in whole, shall be construed liberally in our favor, and shall inure to the benefit of and bind our and your respective successors, personal representatives, heirs, executors administrators and assigns, and also benefit any of our existing or future affiliates that may extend credit to Customer.
E. If Customer hereafter is incorporated, acquired by a corporation, dissolved, or otherwise undergoes any change in its management, ownership, identity or organizational structure, this guaranty shall continue to extend to any Liabilities of the Customer or such resulting corporation, dissolved corporation, or new or changed legal entity or identity to us.
F. You hereby waive notice of the acceptance of this guaranty, and of presentment, demand and protest; notice of nonpayment, nonperformance, and dishonor; notice of amount of indebtedness of Customer outstanding at any time; notice of the number and amount of advances made by us to Customer in reliance on this guaranty; notice of the financial condition of Customer or any other person; notice of the release of collateral for the Liabilities, of any other guaranty, pledge or suretyship agreement or any collateral therefor; notices of any legal proceedings or other efforts to collect against Customer; notice of any recoupment, setoff, administrative freeze on Customer’s credit or assets; notice and any opportunity for a hearing as to any prejudgment remedies; and any other demands and notices required by law. You further waive all rights to assert against us any right of recoupment, set-off, and all claims, defenses, and counterclaims against us or Customer, including any defense based on the lack of good faith. To the extent permitted by law, you also waive any and all rights in and notices or demands relating to any collateral now or hereafter securing any of the Liabilities. All waivers by you herein shall survive any termination or revocation of this guaranty.
G. You authorize us to sell at public or private sale or otherwise realize upon the collateral now or hereafter securing any of the Liabilities, in such manner and upon such terms and conditions as we deem best, all without advertisement or notice to Customer, you or any third parties. You further authorize us to deal with the proceeds of such collateral as provided in our agreement with Customer, without prejudice to our claim for any deficiency and free from any right or redemption on the part of Customer, you or any third parties, which right or redemption is hereby waived together with every formality prescribed by custom or by law in relation to any such sale or other realization.
H. You further agree that all of your right, title and interest in, to and under any loans, notes, debts and all other liabilities and obligations whatsoever owed by Customer to you, whether heretofore or hereafter created or incurred and for whatever amount, and all security therefor, shall be now and hereafter at all times fully subordinated to all Liabilities. Following and during the continuance of a default under the Order, will not ask, demand or sue for, or take or receive payment of, all or any part of such loans, notes, debts or any other liabilities or obligations whatsoever or any security therefor, until and unless all of the Liabilities are paid, performed and fully satisfied. In addition, until such time that the Liabilities are indefeasibly paid in full, you irrevocably waive for our benefit any and all rights you presently have, or may hereafter have, whether by virtue of any payment or payments hereunder or otherwise, to be subrogated to our rights against the Customer with respect to any such indebtedness of the Customer to us.
I. You represent that you have made an independent investigation of the financial condition of Customer and give this guaranty based on that investigation and not upon any representations made by us. You acknowledge that you have access to current and future Customer financial information which will enable you to continuously remain informed of Customer’s financial condition. You also consent to and agree that the obligations under this guaranty shall not be affected by our subsequent increases or decreases in the credit line that we may grant to Customer; substitutions, exchanges or releases of all or any part of the collateral now or hereafter securing any of the Liabilities; sales or other dispositions of any or all of the collateral now or hereafter securing any of the Liabilities without demand, advertisement or notice of the time or place of the sales or other dispositions; realizing on the collateral to the extent we, in its sole discretion, deems proper; or purchases of all or any part of the collateral for our own account.
J. This guaranty and any and all obligations, liabilities, terms and provisions herein shall survive any and all bankruptcy or insolvency proceedings, actions and/or claims brought by or against Customer, whether such proceedings, actions and/or claims are federal and/or state.
K. No delay by us, our successors, affiliates or assigns in exercising any or all rights granted under this guaranty shall operate as a waiver of those rights. Furthermore, no failure by us, our successors, affiliates or assigns, to exercise any or all rights granted hereunder shall operate as a waiver of the right to exercise any or all of them later.
L. You hereby represent and warrant that you have full power, and authority to execute, deliver and perform this guaranty; this guaranty has been duly authorized by all necessary action, executed and delivered by you and constitutes your legal, valid and binding obligation enforceable in accordance with its terms; if you are an entity, you are duly organized and validly existing; neither the execution of this guaranty nor the fulfillment of the obligations created hereunder will conflict with or result in a breach of any other agreement or instrument to which you are a party or by which you are bound or be in violation or default of any statute, rule, or decree of any court, administrative agency or governmental body to which you may be subject; all financial information you previously delivered to us presents fairly your financial condition as of the date hereof, all in conformity with generally accepted accounting principles, applied on a consistent basis; since the date of the latest financial information, there has been no material adverse change in your financial condition; you are not default with respect to any indenture, agreement, mortgage, lease, deed or similar agreement to which you are a party or by which you are bound; there are no actions, suits or proceedings (whether or not purportedly on behalf of you) pending or, to the knowledge of you, threatened against you in any court, before or by any governmental body, or otherwise, which would, if adversely determined, adversely affect your financial condition, or impair your ability to perform your obligations hereunder, and you have filed all federal, state and local tax returns and other reports required by law and have paid all taxes which have become due, other than those being contested in good faith.
M. If this guaranty is signed by more than one person, the obligations of each of you shall be joint and several. This document contains your entire agreement concerning the guaranty of the Liabilities and can be varied only by a document signed by us.
N. This guaranty shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws principles. You consent to the jurisdiction of any local, state or federal court located in the Eastern District of Pennsylvania and you waive any right to transfer or change the venue of any litigation brought against you by us in accordance with this paragraph. YOU EXPRESSLY WAIVE TRIAL BY JURY AS TO ALL ISSUES ARISING OUT OF OR RELATED TO THIS GUARANTY.
O. CONFESSION OF JUDGMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU IRREVOCABLY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR YOU IN ANY SUCH COURT (UPON THE OCCURRENCE OF A DEFAULT HEREUNDER) AT ANY TIME TO WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND TO CONFESS AND ENTER JUDGMENT AGAINST YOU AND IN FAVOR OF US FOR SUCH AGGREGATE AMOUNT AS IS UNPAID, WITH ACCRUED INTEREST, TOGETHER WITH COSTS AND ATTORNEYS’ FEES EQUAL TO FIVE PERCENT (5%) OF THE INDEBTEDNESS THEN DUE HEREON. YOU HEREBY RATIFY AND CONFIRM ALL THAT THE ATTORNEY MAY DO BY VIRTUE HEREOF AND WAIVE AND RELEASE ALL ERRORS WHICH MAY INTERVENE IN SUCH PROCEEDINGS. IF A COPY OF THIS NOTE SHALL BE PRODUCED IN ANY PROCEEDING BROUGHT UPON THE WARRANT OF ATTORNEY CONTAINED IN THIS PARAGRAPH, SUCH COPY SHALL BE CONCLUSIVE EVIDENCE OF SUCH ATTORNEY’S AUTHORITY TO TAKE THE ACTION SPECIFIED HEREIN AND IT SHALL NOT BE NECESSARY TO PRODUCE THE ORIGINAL INSTRUMENT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER. This Section shall not apply in any state where it is prohibited by law.
