TERMS AND CONDITIONS OF RENTAL CONTRACT
This Agreement is for the rental of the Equipment shown on the other side of this page, including all parts and accessories (“Equipment”). This document can be signed in counterpart and facsimile and photocopy signatures are binding upon the customer.
1. Agreement and Acceptance of Terms. These Rental Terms and Conditions (“Terms”) govern the rental of all equipment (“Equipment”) from Madco Logistics, LLC d/b/a Madco Rentals (“Madco”) and are incorporated into each and every rental order for Equipment from Madco (each, a “Rental Order”) by any individual or entity that rents such Equipment from Madco (“Customer”). Madco hereby rejects the terms of any purchase order, rental agreement or other document submitted by Customer, and only a document signed by the manager of Madco may modify these Terms or accept any alternate terms. The placing of a Rental Order with Madco, the issuance of a purchase order for rental of Equipment from Madco, or the receipt, acknowledgement, or acceptance of Equipment for rental by Customer constitutes Customer’s acceptance of these Terms exactly as written. Madco reserves the right, in its sole discretion, to modify or replace any of these Terms at any time, and such modifications or replacements shall apply to all subsequent rentals of Equipment from Madco. It is Customer’s responsibility to review the Terms each time Customer rents Equipment from Madco.
2. Title. Madco is and shall remain the owner of the Equipment. Customer will not acquire any equity or ownership interest in the Equipment by making rental payments or performing repairs. Customer will not place any liens on the Equipment and will not allow third parties to encumber Madco’s title to the Equipment. Rental rates, in compliance with A.R.S. § 44-1799.41, include an amount sufficient to cover personal property tax due in connection with the Equipment.
3. Rental Term and Rental Period. As to each piece of Equipment, the “Rental Term” is the time period for which Customer has ordered such Equipment, as specified on the Rental Order. As to each piece of Equipment, the “Rental Period” is the time period that commences on the delivery of the Equipment to Customer and ends upon its return to Madco’s premises. Customer shall pay rent on the Equipment at the rates set forth on the Rental Order for the entire Rental Period (and also during any time period when repairs are made to Equipment returned to Madco in a damaged or excessively worn condition; see, Section 10 below). No allowances will be made for Saturdays, Sundays, holidays, transit time, or for any period Equipment is not in actual use.
4. Payment Terms. For Customers with an open credit account with Madco, payments are due Net 30 from date of invoice. For Customers who do not have an open credit account with Madco, payment is due upon delivery of Equipment. Madco may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Equipment, until receipt of payment. If Customer fails to pay for Equipment as and when due, Customer shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full together with all costs of collection, including all reasonable attorneys’ fees whether or not litigation is filed.
5. Excess Usage Charge. Rental rates are based upon maximum Equipment usage of: one shift of 8 hours per day; or upon 40 hours per week; or upon 160 hours per four weeks. If the Equipment is used longer during any specified period, overtime rental will accrue at the hourly rate of 1/8 of the daily charge (daily rental), 1/40 of the week charge (weekly rental) and 1/160 of the 4 week charge (4 week rental).
6. Written Safety Instructions; Training. Operating instructions and safety manuals will be located inside of the Equipment. If Customer is unable to locate operating instructions and safety manuals inside of the Equipment or if Customer has any questions or concerns regarding the safe operation of the Equipment, Customer must contact Madco immediately. It is Customer’s obligation to ensure that individuals operating the Equipment or working in proximity to the Equipment fully understand all safety and operating instructions associated with the Equipment.
7. Disclaimer of Warranties. By receiving the Equipment, Customer acknowledges the Equipment to be in good, safe and serviceable condition, and Customer accepts the Equipment “AS IS” regardless of defects, latent or otherwise. Madco makes no warranty, express or implied, with respect to the Equipment, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Madco and waived by Customer. Customer’s sole remedy shall be the termination of the rental charges at the time of failure or discovery of defect, provided Customer returns the Equipment to Madco’s premises within 24 hours of the failure or discovery of defect.
8. Machine Maintenance and Repairs. During the Rental Period Customer, at its own cost, shall perform all daily lube, fuel and daily maintenance on the Equipment as prescribed in the Original Equipment Manufacturer’s Operation and Maintenance Manual (the “OEM Manual”). Madco will perform the required preventative maintenance during the Rental Period as prescribed in the OEM Manual. Upon request, Customer will make the Equipment available for Madco to perform such preventative maintenance during Madco’s regular business hours. Customer is not authorized to make any repairs to the Equipment or incur any expense for the account of Madco. In the event that the Equipment become inoperable or requires a repair, Customer shall immediately stop using the Equipment and notify Madco. All repairs must be approved and authorized by Madco, and Madco must also approve the Vendor which will repair the Equipment. Madco and Customer shall also communicate and coordinate regarding the transportation of the Equipment to a Vendor for repairs pre-approved by Madco.
9. Return of Equipment. Upon expiration of the Rental Term set forth in the Rental Order (unless Madco agrees in writing to an extension) or upon demand from Madco prior to expiration of the Rental Term, Customer shall return the Equipment to Madco’s premises during Madco’s regular business hours. Customer shall be liable for all damages, theft or loss occurring because the Equipment was not returned within Madco’s regular business hours. If the Rental Order for the Equipment states that Madco will pick up the Equipment, Customer will be responsible for all damages, theft or loss to the Equipment until Madco actually picks up the Equipment.
10. Reasonable Wear and Tear; Damaged Equipment. Madco will accept return of the Equipment subject to reasonable wear and tear, which means only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift (eight hours per day, five days per week) basis. Examples of improper use which shall not be deemed reasonable wear and tear include but are not limited to the following: damage resulting from lack of lubrication or failing to maintain necessary oil, water, and air pressure levels; damage resulting from lack of daily inspection and maintenance; damage from improper operation, including over-loading or exceeding the rated capacity of the Equipment; damage in the nature of dents, bending, tearing, straining and misalignment; and damage resulting from exposure to leach pads, scrap metal operations or other corrosive or harsh environments. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay Madco the reasonable cost of repair and also shall pay rental for the Equipment at the regular rental rate until repairs have been completed. In the event that Madco allows the Customer to make a specific repair, repairs to the Equipment shall be made to the reasonable satisfaction of Madco and in a manner that will not adversely affect the operation or value of the Equipment as pre-determined by Madco (for example, approval of welding repairs rather than replacing a part will be at Madco’s discretion).
11. Tires and Tracks. Repair and replacement of tires or tracks are not included in the rental rate. Customer shall pay for any tire or track damage, regardless of the cause. All tires substituted by Customer shall become Madco’s property.
12. Insurance. Prior to commencement of the Rental Term, Customer must obtain, and must maintain in effect during the entire Rental Period, the following insurance: workers’ compensation insurance (in accordance with applicable law); employer’s liability insurance (not less than $1,000,000 per person, per accident); if renting a truck licensed for use on public highways, automobile liability insurance covering all owned, non-owned and hired vehicles (with a combined single limit of $1,000,000); general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate); and physical damage insurance (full value of the Equipment). Customer’s required policies shall be primary, and any insurance maintained by Madco shall be excess and non-contributory. Customer must provide an insurance certificate to Madco evidencing all of the foregoing before commencement of the Rental Term. Additionally, Customer’s required policies must be endorsed to include waivers of subrogation; Customer’s general liability and automobile liability policies must be endorsed to name Madco as an additional insured; and Madco must be named as loss payee on the physical damage insurance. Such endorsements shall be provided to Madco along with the insurance certificate. Madco’s standard insurance requirements do not limit or qualify the liabilities, obligations or indemnities of Customer hereunder.
13. Limitation of Liability; Indemnification. Under no circumstances shall Madco be liable for any indirect, punitive or consequential damages, including but not limited to lost profits, downtime, or loss of third party contracts, regardless of whether or not Madco is advised of the possibility of such damages. Madco’s maximum total liability for damages or loss relating to or arising from the rental of Equipment shall in no event exceed the amount Customer paid to Madco for rental of such Equipment. Customer shall indemnify, defend and hold harmless Madco, its owners, officers, employees and agents, for, from and against any and all threatened or actual claims, losses, liabilities, damages, costs or expenses (including attorneys’ fees, expert witness fees, costs and expenses) of any nature whatsoever arising out of or related to: the operation, possession, use, failure, or maintenance of the Equipment while on rent to Customer; the breach of any provision of the Rental Order by Customer; personal injury, death or property damage or loss of any nature whatsoever arising from or related to the Equipment while on rent to Customer; the negligence or willful misconduct of Customer; any violation by Customer of applicable laws; and claims by Customer’s employees related to the Equipment.
14. Default. Customer is in default if (a) Customer fails to pay any installment of rent or other payment to Madco when due; (b) Customer fails to return the Equipment at the end of the Rental Term or upon demand; (c) Customer fails to perform or observe any condition of the Rental Order or any other agreement with Madco; (d) Customer ceases doing business as a going concern, makes an assignment for the benefit of creditors, files a petition in bankruptcy or consents to or acquiesces in the appointment of a trustee, receiver or liquidator of all or any substantial part of its assets or properties; (e) Customer abuses, neglects or attempts to remove, sell, transfer, encumber, part with possession of, or sublease the Equipment or any item thereof; or (f) Madco in good faith deems itself insecure.
15. Remedies; Retaking of Equipment. Madco reserves all rights and remedies available at law or under contract in the event of a default by Customer, and Madco may, at its option, demand that Customer immediately deliver the Equipment to Madco’s premises at Customer’s expense. If the Equipment is not returned at the end of the Rental Term or for any reason it becomes necessary for Madco to retake the Equipment to protect it from loss or damage, Madco and its agents may, without notice or legal process, enter into any job, building, or place where the Equipment may be and repossess same by using all force necessary to do so. In the event of default, Customer waives all rights to a prior judicial hearing, any further right to possession of the Equipment and all claims for injuries, damages or loss arising out of the repossession of the Equipment. Customer shall pay all costs and expenses incurred by Madco in retaking the Equipment.
16. Compliance with Laws and Regulations; Hazardous Materials. Customer shall not abuse, harm or improperly operate the Equipment. Customer, at its sole expense, shall comply with all laws and regulations applying to the use, operation or possession of the Equipment. Customer warrants and represents that it shall return the Equipment free from all toxic, hazardous or regulated materials, as those terms may be defined in applicable federal, state and local regulations and laws. Customer shall indemnify, defend and hold Madco harmless from any loss, claim or damage that may arise out of Customer’s breach of these representations and warranties.
17. Additional Customer Obligations. Customer warrants that the Equipment will be used for business or agricultural purposes and not for personal, family or household purposes. Customer shall not sublet, re-rent or loan the Equipment to any third party. At all times, Customer shall advise Madco of the exact location and condition of the Equipment and shall give Madco immediate written notice of any lien or judicial process affecting the Equipment. Customer understands and agrees that Madco may enter any job, building or place to inspect, repair or retake the Equipment. Customer shall promptly furnish Madco with a complete written report of any accident involving the Equipment, including names and addresses of all witnesses and persons involved.
18. Choice of Law; Venue. All Rental Orders shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict of law provisions. The parties agree that the exclusive jurisdiction and venue for any proceedings at law or in equity will be in the state or federal courts located in Maricopa County, Arizona. Madco shall recover all costs and reasonable attorneys’ fees in enforcing its rights and remedies against Customer, whether or not litigation has been filed. CUSTOMER WAIVES THE RIGHT TO A JURY TRIAL OF ANY CLAIM OR DISPUTE RELATED TO OR ARISING FROM THIS RENTAL AGREEMENT.
19. Miscellaneous. Customer may not assign Customer’s rights or obligations hereunder without Madco’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Madco and Customer. These Terms may only be amended by a written document signed by Customer and Madco’s president. Electronic, facsimile and counterpart signatures are binding on the parties.
20. Requirements Applicable to Rental of On-Highway Equipment. The provisions of this Section 20 apply to all rentals of Equipment that are authorized or used for operation on public roadways (“On-Highway Equipment”). Upon rental of On-Highway Equipment by Customer, Customer shall have complete control and supervision of the On-Highway Equipment (unless otherwise in the care, custody and control of Madco). Customer represents and warrants that, at all times such On-Highway Equipment is in Customer’s care, custody or control, such On-Highway Equipment shall be operated only under the USDOT number and operating authority of Customer (i.e., Customer may not allow a third-party to transport such On-Highway Equipment without the written consent of Madco). Further, Customer shall comply with the Federal Motor Carrier Safety Administration (“FMCSA”) requirements set forth in 49 CFR 376.11(c) pertaining to the proper identification and marking of the On-Highway Equipment upon taking possession and prior to operating any On-Highway Equipment. Before giving up possession of the On-Highway Equipment, Customer shall remove all identification showing it as the operating carrier. If Customer provides drivers, such drivers must be qualified under and meet all applicable federal, state and local laws and regulations, including but not limited to a valid CDL in good standing. The Rental Order shall constitute the receipt evidencing the transfer of possession of On-Highway Equipment as set forth in 49 CFR 376.11(b). The Rental Order shall be carried in the On-Highway Equipment by Customer during the full term of the Rental Order. Madco agrees to cooperate with all federal, state and local law enforcement officials nationwide to provide the identity of any Customer who operates the On-Highway Equipment. Customer will provide persons to manage and/or operate the On-Highway Equipment. Such persons are under the sole control and direction of Customer and are not acting in the capacity of independent contractors or employees of Madco.
CUSTOMER ACKNOWLEDGES THAT A LARGER-PRINT VERSION OF THESE TERMS AND CONDITIONS HAS BEEN MADE AVAILABLE.