1. Applicable Terms
All Proposals by Specialist Services RedGuard ("SSRG"), all acceptances by SSRG of Lessee's orders (“Acceptance”), and all performance of services by SSRG are submitted or made subject to these Standard Terms and Conditions for Rental Equipment and Purchases ("Terms and Conditions") and all specific terms and conditions set forth in the Proposal issued by SSRG (the "Proposal"). “Rental Equipment” is defined as all equipment, tools, products, materials, supplies, prefabricated and portable buildings, erectable structures, furniture, accessories, and ancillary equipment, supplied to Lessee by SSRG under an individual Proposal. Technical advice or field services may also be provided by SSRG, as described in the Proposal or separately; any technical advice or field services provided will be subject to these Terms and Conditions. In the event of any conflict between the Terms and Conditions and the specific terms and conditions or the Proposal, the specific terms and conditions of the Proposal will control. Lessee by submission of a Purchase Order, acceptance of the Proposal, submission of initial payment required by the Proposal, or any other act in furtherance of requesting SSRG to act in accordance with the Proposal, accepts and agrees to these Terms and Conditions, and waives any conflicting or additional provisions contained in Lessee's forms. Any provision, printed or otherwise, contained in any order, acceptance, confirmation, or acknowledgment issued by Lessee that is inconsistent with, different from, or in addition to these Terms and Conditions are hereby expressly rejected by SSRG and will not be considered as part of the agreement between Lessee and SSRG. All references to "Lessee" include the party taking SSRG Rental Equipment, its joint ventures, partners, co-lessors, its contractors and subcontractors (other than SSRG), its affiliates and the officers, directors, employees, agents, successors, assignees, consultants, servants and invites of each of them. All Purchase Orders are subject to review and Acceptance by SSRG prior to performing any work.
2. Representations of the Lesee
Lessee represents and warrants to SSRG, which representations SSRG may rely upon, that
- Lessee's acceptance of the SSRG Proposal is authorized by appropriate act of Lessee and is executed by an individual authorized to bind Lessee;
- the Rental Equipment will remain at Lessee’s facility or in the location specified in the Proposal during the duration of the lease term specified in the Proposal (the “Lease Term”);
- Lessee intends to use the Rental Equipment for a use permitted by law and as represented to SSRG in the Proposal;
- Lessee is financially able to complete its obligations of payment of the full lease payment; and
- Lessee will adhere to recommendations and directions made by SSRG for the installation, maintenance, and use of the Rental Equipment, will not modify or remodel the Rental Equipment in any way, will maintain the Rental Equipment in good condition, and notify SSRG of any damage to the Rental Equipment, within 48 hours of the damage, during the duration of the Lease In the event the Rental Equipment will be located on a third party’s premises, Lessee will obtain advanced written approval that SSRG may enter into the premises, and remove and retrieve the Rental Equipment from the premises at any time upon reasonable notice to the third party. During the Rental Term, Lessee shall at all times allow SSRG, the SSRG agents or servants to have reasonable access to the Rental Equipment to inspect, test, adjust, repair or replace. SSRG retains the right to affix a mark or plate on the Rental Equipment identifying them as SSRG property and the Lessee shall not remove, deface or cover up the same.
Unless otherwise specified in the proposal, invoices shall be due and payable within 30 days of the invoice date. SSRG will invoice Lessee and Lessee will make all payments in accordance with the schedule set forth in the Proposal or as set forth in this Paragraph 3, whichever applies. Advance payment may be required based on Lessee credit application. Where a specific date for payment is set, payment must be made on or before that date. Payment in full for each invoiced amount is a condition precedent to the performance of any further work by SSRG. Should Lessee fail to make any payment as required, SSRG, at its sole option, and without incurring any liability, may, upon reasonable notice to Lessee, enter the premises where the Rental Equipment is located (including on the premises of any third party), disconnect all utilities, and remove the Rental Equipment from the premises. In such an event, all remaining lease payments will be immediately due and payable to SSRG. All payments not made when due will bear interest at One and one-half percent (1.5%) per month, Eighteen percent (18%) per annum (or the highest rate permitted by law, if lower) beginning thirty (30) days after the date payment was due until paid. Unless otherwise specified in the Proposal, all risk of loss of or damage to the Rental Equipment will transfer to Lessee at the time the Rental Equipment is delivered to the location where it will be installed. In all cases, title to the Rental Equipment remains with SSRG. Given the customization and reconditioning required by SSRG for Rental Equipment, Lessee understands and agrees the minimum payment required will be equal to the amount stated in the Proposal regardless of whether Lessee elects to cancel the lease and return the equipment prior to the expiration of the minimum Rental Term stated in the Proposal (the “Min. Rental Term”). The minimum rental term will be defined in the proposal and the rental period shall be consecutive days.
4. Proposal Price Limitations
All prices quoted, unless otherwise specified in the Proposal, are based on a 28-day lease cycle and not on a calendar basis, do not include transportation charges, any federal, state, or local taxes (including, for example, sales or use taxes, VAT, GST, or transfer tax) or other governmental charges on labor or the production, shipment, importation, exportation, duties, sale, certificate of origin, installation, or use of the Rental Equipment covered by the Proposal. All such charges, whether or not paid by SSRG, will be for the account of Lessee and Lessee agrees to pay all such charges. All crating, Packaging, freight, and crane charges are to be paid by Lessee unless otherwise specified in the Proposal. All price quotes expire thirty (30) days from the Proposal date unless otherwise specified in the Proposal, and may be withdrawn or modified by SSRG at any time before acceptance by Lessee. All Proposals are subject to Rental Equipment availability at the time of Lessee’s order, and can only be reserved when a purchase order with a defined/confirmed date is accepted by SSRG. Unless otherwise stated in the Proposal, the Rental Term will begin upon commencement of delivery (“Commencement Date”) of Rental Equipment from SSRG premises and terminates the actual date SSRG receives Rental Equipment back at SSRG premises.
5. Schedule of Work
Placement of an acceptable Purchase Order by Lessee will release SSRG to begin preparation of the Rental Equipment in accordance with the Proposal. If modifications to the Rental Equipment are required per Lessee’s Purchase Order prior to delivery, Lessee is responsible for all costs incurred for such modifications. Lessee will pay for all additional costs incurred by SSRG resulting from Lessee's delays, including, for example, failure to approve drawings promptly or to the necessary releases to purchase materials and to proceed with fabrication, shipment, or installation. If transportation services are included in SSRG scope as outlined in the Proposal, one and a half (1.5) hours of detention time is included in proposal transportation quote. Any time spent on the site after that time period will be billed at $75/half hour/truck. All delivery and completion dates, as specified in the Proposal are of critical importance; however, time will not be construed to be "of the essence". Lessee shall pay the cost of the transport of the Rental Equipment from SSRG premises to the site and return to the named premises on completion of the Rental Term unless specifically stated otherwise. In such case, SSRG shall assume the risks of loss or damage to the Rental Equipment while in transit. All permits, legalization, port charges, documentation, and certification necessary for transportation will be charged to the Lessee.
6. Force Majeure
In the event of any act, delay, or failure to act by a federal, state, or local government, war conditions, civil unrest or political disturbances, fire, flood, severe weather, high winds, or other natural disaster, labor troubles, strikes, lockouts, governmental action, inaction, delay, or restriction, or act of terrorism, or any other circumstances beyond the control of SSRG, should prevent, curtail or delay the performance by SSRG, then such non-performance or delay will not be considered a breach, and SSRG will be excused while such condition or circumstances and its consequences prevail, and the time for SSRG to perform hereunder will be extended accordingly.
After placement of an acceptable Purchase Order, the Lessee may cancel the order only upon written notice to SSRG, which notice will be effective only upon actual receipt by SSRG. In the event of cancellation, Lessee will be required to pay SSRG a cancellation charge equal to the lead time or period required to prepare the Rental Equipment for Lessee multiplied by the lease rate stated in the Proposal, plus all costs associated with modifications, staging, and transportation arranged for the delivery of the Rental Equipment to Lessee, and the cost to close out all purchase orders issued to subcontractors and vendors of SSRG for materials, services, and transportation related to the Rental Equipment.
8. Warranties of SSRG
No conditions or warranties other than herein specifically set forth shall be implied or deemed to be incorporated or to form part of the Contract. The Rental Equipment shall be deemed to be in good order and condition in accordance with the terms of the Proposal and to the Lessee’s satisfaction unless notification is received by SSRG at the point of collection by Lessee or within three days of the Rental Equipment being delivered to the Lessee. SSRG hereby warrants that it has title to the Rental Equipment, that the same is free from defects in workmanship and materials and in good operating condition at the time of delivery. No warranty is given that the Rental Equipment is suitable for the purpose required by the Lessee. The SSRG Warranty is void if Lessee performs any repair or modifications to the Rental Equipment or attempts to or otherwise relocates the Rental Equipment without the prior written consent or approval of SSRG. Correction of any non-conformance, in the manner provided above, will satisfy all obligations of SSRG under the SSRG Warranty with respect to the Rental Equipment. Unless otherwise stated on the SSRG Proposal, any purchased pre-utilized Rental Equipment includes a one hundred and twenty (120) day warranty from the date of purchase. Unless otherwise stated on the SSRG Proposal, any purchased new manufactured building includes a one (1) year warranty from the date of purchase.
9. Limitation of Liability
- EXCLUSION OF WARRANTIES: EXCEPT FOR THE EXPRESS WARRANTY PROVIDED HEREIN, SSRG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RENTAL EQUIPMENT, AND ANY RELATED TECHNICAL ADVICE OR FIELD SERVICES, PROVIDED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
- EXCLUSION OF CONSEQUENTIAL DAMAGES: IN NO EVENT, WILL SSRG BE RESPONSIBLE FOR ANY LOST PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES.
- DOLLAR LIMITATION: ANY LIABILITY OF SSRG OR ITS SUBCONTRACTORS OR VENDORS WITH RESPECT TO ANY CONTRACT, OR ANYTHING DONE IN CONNECTION HEREWITH, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, TECHNICAL ADVICE OR FIELD SERVICES REGARDING THE STORAGE, INSTALLATION, COMMISSIONING, START-UP ASSISTANCE, OPTIMIZATION, OPERATION, USE, MAINTENANCE, REPAIR OR REPLACEMENT OF ANY RENTAL EQUIPMENT, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER, WILL NOT EXCEED THE MINIMUM PAYMENT.
- EXCLUSIVE REMEDY: THE REMEDIES OF LESSEE ARE THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LESSEE’S REMEDIES ARE LIMITED TO THE REMEDIES STATED HEREIN AND THESE REMEDIES SHALL NOT FAIL OF THEIR ESSENTIAL PURPOSE BECAUSE LESSEE IS LIMITED TO THE EXCLUSIVE REMEDIES PROVIDED HEREIN.
- Provisions applicable to Owner: In the event Lessee and Owner are different parties, the following will apply: (1) Lessee will obtain from Owner, in favor of SSRG, an agreement that Owner will be bound by the remedies extended herein; if Lessee does not do so, Lessee, will indemnify SSRG from and against all liability, damages, costs, losses, or expenses, including reasonable attorney fees, in excess of those remedies provided for (2) Lessee will obtain from Owner, in favor of SSRG, its subcontractors and vendors, a release from consequential damages to the extent stated herein; or if Lessee does not do so, Lessee will indemnify and hold harmless SSRG from and against all liability, damages, costs, losses, and expenses, including reasonable attorney fees, resulting from Owner's consequential losses of any nature.
- Subrogation Rights: Lessee and Owner/User hereby waive the subrogation rights of their respective property damage and business interruption/extra expenses insurers in favor of SSRG and its All liability of SSRG and its subcontractors for damage to the property of Lessee will be subject to the limitations herein and limited to occurrences prior to the expiration of the warranty period.
10. General Indemnity
To the fullest extent permitted by law, Lessee will indemnify, defend and hold harmless SSRG and its affiliated companies, and their respective directors, officers, managers, employees, agents, successors and assigns (the “SSRG Group”) from and against any and all liability, loss, damages, cost, expense, penalty, lien, award or judgment, including attorneys fees and court costs, arising out of or related to any claim, demand suit, or legal action, or proceeding of any nature, including without limitation personal injury, death, or property damage, or any combination, including to the Rental Equipment (collectively a “Claim”), made upon or against the SSRG Group, or any of them, and caused by, or otherwise arises under or is related, directly or indirectly, to Lessee’s installation, operation, use, maintenance, modification, repair or replacement of the Rental Equipment following delivery, any other action or omission of Lessee, its contractors, employees, borrowed servants, agents and representatives, or any other person for whom Lessee may be liable or Lessee’s failure to observe and perform its obligations hereunder; provided, however, Lessee will not be required to indemnify the SSRG Group to the extent a Claim arises out of the negligence, gross negligence, or willful misconduct of any member of SSRG. Lessee’s indemnity obligations are in addition to any other rights available to any member of the SSRG Group and will not be limited in any manner by the provisions of applicable workers’ compensation, disability benefits, or other employee benefit statutes, nor by Lessee’s obligation to procure and maintain insurance. The provisions of this Section will survive termination of the Lease Term.
No liens will be permitted to be placed on any Rental Equipment. Lessee will immediately take all action necessary to remove any lien and will indemnify and hold harmless SSRG from and against any lien claims and any other costs and expenses related to any such lien.
11. Risk of Loss and Insurance
All loss or damage to the Rental Equipment from any cause during the Lease Term, including wind, fire, flood, theft, and comprehensive losses will be the sole risk and responsibility of Lessee. In case of total loss of Rental Equipment for which Lessee is responsible, such responsibility will include payment of an amount equal to the replacement value of the Rental Equipment. Where the Proposal includes furniture and equipment; this furniture and equipment is the property of SSRG and shall be returned in good order, fair wear and tear excepted, on completion of the Rental Term.
Lessee is responsible for, and will procure and maintain at all times during the Lease Term, the insurance coverage specified in this Section and to furnish to SSRG certificates of insurance at least ten (10) days prior to the date of delivery of the Rental Equipment. Such policies and certificates will certify that Lessee has and will maintain during the Lease Term, the following insurance coverage: (a) worker’s compensation and employer’s liability insurance, with limits of at least the statutory minimum or $1,000,000, whichever is greater; (b) primary, non-contributory commercial general liability insurance on an occurrence basis, including bodily injury and property damage coverage and contractual liability, with minimum limits of $2,000,000 per occurrence and $5,000,000 in the aggregate (non-contributory excess/umbrella policy may be utilized to meet aggregate limits); (c) physical damage insurance providing coverage for the Rental Equipment against ALL RISK PERILS in an amount no less than the full replacement value of the Rental Equipment; and (d) automobile liability and collision insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. All policies will be written with deductibles and other terms and by insurance carriers acceptable to SSRG. All liability policies (other than workers compensation policies) and certificates will name SSRG as an Additional Insured. All property insurance policies and certificates will name SSRG as an Additional Insured/Loss Payee as its interests may appear. Lessee will also provide a waiver of subrogation against SSRG with respect to the insurance required under subsections (b) and (c) above and provide evidence of such waiver in the certificate of insurance provided to SSRG.
All policies and certificates will be endorsed to provide SSRG with no less than (30) thirty days advance written notice of a modification, cancellation, or expiration of the specified insurance coverage. SSRG’s insurance policies will be considered excess over all of Lessee’s policies. Indemnification obligations by Lessee are in addition, and not an alternative, to the insurance coverage required, and Lessee’s maintenance of the insurance coverage will not operate to waive any indemnification obligations. If Lessee fails to procure and maintain the required physical damage insurance coverage in accordance with this Section, SSRG will have the right (but not the obligation), without notice and at Lessee’s expense, to obtain the insurance coverage, and Lessee will pay the cost upon the terms set forth in SSRG’s invoice issued in accordance with the provisions of Section 3. To the extent Lessee may perform hereunder without obtaining the required insurance coverage, it will not operate in any manner as a waiver by SSRG of its right to maintain any breach of contract action against Lessee.
12. Documents, Installation, Maintenance, and Removal
Any drawings, sketches, or other documents furnished by SSRG, including the Proposal, are strictly for the stated one time use of Lessee and/or Owner as stated in the Proposal. The Proposal and all information contained in such documents are proprietary to SSRG. Lessee will keep all information relating to the Rental Equipment in strictest confidence. Neither Lessee nor Owner may copy, publish, or otherwise disseminate the Proposal or any drawings, sketches, or other documents furnished by SSRG or their contents nor provide any other information relating to the Rental Equipment or the Proposal to any other party without the prior written permission of SSRG. Lessee may not reverse engineer or attempt to reverse engineer any feature of the Rental Equipment.
The Lessee shall obtain all permissions, permits, regulations, consents, and licenses for the Rental Equipment to be installed on location under any statute, regulation or by law or by any land or property owner and in due time comply with any conditions imposed in respect thereof. Unless otherwise specified in the Proposal, Lessee shall be responsible for preparing the site location, and for installation and placement of the Rental Equipment on level foundation pads in accordance with any drawing if supplied by SSRG, and all utility installation and connections. Lessee is responsible for ensuring that the building start-up procedure is adhered to. Lessee shall be responsible for the loading & offloading of the Rental Equipment at the site and shall be responsible for any damaged caused. Without prior written approval from SSRG, Lessee shall not place any material or equipment on the roof or any other parts of the Rental Equipment. In the event of cancellation or termination of the Lease Term, Lessee will be responsible for disconnecting all utilities and preparing the Rental Equipment for removal by SSRG, and Lessee understands and agrees that SSRG will require a minimum of five (5) days from the date of termination or receipt of the written cancellation notice to arrange for and remove the Rental Equipment from Lessee’s premises, have the same force and effect as personal service within the State of Kansas.
The Lessee shall be responsible for maintaining the Rental Equipment in the same condition as on the date of delivery using the same in a workmanlike manner and returning the Rental Equipment on completion of hire in a good and clean condition (fair wear and tear excepted). Upon return, SSRG will carry out an inspection and a notification will be sent to the Lessee detailing any loss, damage or cleaning costs chargeable to the Lessee. Lessee shall be responsible for replacing light bulbs, AC gas (with SSRG's written permission), fuses, MCBs, light tubes and other small consumables as necessary and the adjustment, calibration, and maintenance of all equipment inclusive of regular services of the same. If the Rental Equipment ceases to function or partially during the hire period, SSRG will provide a technician to repair the unit. All costs of travel, accommodation, visas, passes etc. shall be paid by the Lessee. The technicians’ time shall be to SSRG account only if the unit failure is due to SSRG defective workmanship or materials otherwise these costs are to the Lessee account. SSRG will give written authorization for the Lessee to use qualified technicians to make necessary repairs and adjustments. Should the Rental Equipment need to be replaced, Lessee shall pay the cost of the transport of the replacement unit and returned the unit if the replacement of the unit is not due to SSRG defective workmanship or materials.
13. Default and Remedies
A default by Lessee includes, for example, Lessee’s failure to make any payment on time, modifying the Rental Equipment, failure to notify SSRG of any damage to the Rental Equipment within 48 hours of the damage, relocating the Rental Equipment on or removing the Rental Equipment from the specified location, failure to maintain the Rental Equipment, breach of any provision of the Purchase Order, Terms and Conditions, or the Proposal, or Lessee enters bankruptcy or receivership. Upon default by Lessee, the obligations of SSRG will terminate completely and automatically. All amounts due to SSRG under the Proposal will be immediately due and payable. In addition, Lessee will be responsible for all costs and expenses incurred by SSRG as a result of exercising its rights, including reasonable attorney fees, court costs, and collection costs.
Neither party may assign their rights and obligations under any Purchase Order issued by Lessee without the prior written consent of the other party. Lessee may not sublease any Rental Equipment to any third party without the prior written consent of SSRG.
Any consent, agreement, or notice required or permitted to be given or made by one of the parties hereto to another party will be in writing and in the English language and will be delivered in person, United States Postal Service, email, or by Federal Express (or other recognized international courier service requiring signature upon receipt), and receipt is verified. Such notice will be effective upon receipt. Addresses and designated contact names will be set forth in the Purchase Order or Proposal and such addresses and designated contact names may be modified from time to time, by written notice to the other party, given in an aforesaid manner.
It is intended that each provision of these Terms and Conditions will be viewed as separate and divisible and that in the event any provision is held to be invalid, the remaining provisions will continue in full force and effect.
17. Binding Upon Successors
These Terms and Conditions will be binding upon and inure to the benefit of the parties hereto and their heirs, successors, administrators, and assigns as herein provided. No third party is nor will be construed as a beneficiary of any provision of the Proposal, the Purchase Order, or these Terms and Conditions, or any Rental Equipment provided by SSRG.
18. Modification and Waiver
No change, modification, or waiver to any terms or scope of any order will be binding and valid unless it is accepted in writing and signed by an authorized representative of SSRG. No waiver of any of the provisions of the Purchase Order, the Terms and Conditions, or the Proposal will be deemed or constitute, waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver.
19. Prior Agreements
These Terms and Conditions supersede and replace all prior agreements, representations and warranties (including without limitation, implied warranties of merchantability or fitness for a particular purpose), written or oral, with respect to the Rental Equipment to be provided by SSRG.
The captions set forth herein are for convenience only and have no binding effect nor will they be considered in interpreting these provisions.
These terms shall be governed by the laws of the State of Texas (excluding any conflict of law principles or rules which would impose the laws of another jurisdiction). SSRG and Lessee agree that a venue for any lawsuit arising from or in connection with these Terms shall be the U.S. District Court for the Southern District of Texas, or the State Courts of Harris County, TX.