Terms and Conditions of Rental Contract

TERMS AND CONDITIONS OF RENTAL CONTRACT- LIBERY EQUIPMENT RENTALS LLC

For good and valuable consideration, you and Liberty Equipment Rentals, LLC, a Georgia limited liability

company (also referred to herein as "Liberty,” "LER,” "Lessor,” "we,” "us” and "our”) agree as follows:

1. As used herein, "P.1” refers to the first page or "face” of this Contract; "Contract” refers to P.1 together with

these Terms and Conditions, "Rented Item(s)” or "Item(s)” means the item(s) provided (rented or if specifically

set forth on P.1, sold) to you, as identified on P.1 (including any "Instructions” and/or safety devices provided per

Section [or "§”] 3 below); "Site” means the address set forth on P.1 where the Item(s) is/are to be delivered

and/or used; and "Customer,” "Lessee,” "you” and "your” mean the "Renter,” "Customer,” "Lessee” and/or

"Guarantor” (as applicable) identified on P.1.

2. You agree to rent from LER the Rented Item(s) for the period(s) specified on P.1 (the "Term”), to pay us our

stated rental rate(s) (the "Rent”), together with all other charges accruing hereunder, without proration, reduction

or setoff, and to remain liable for all loss, theft, injuries and damages of, to, or associated with such Item(s), until

all Rented Item(s) is/are returned to and accepted by LER in the return condition required under this Contract

(including § 10). Unless otherwise specifically agreed by LER, all rental rates are for normal use of the Rented

Item(s) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which Rent is

charged hereunder (each, a "Rental Day”), 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day

period (zero hours for any and all uncharged-for periods), and in accordance with the terms of this Contract.

Additional Rent at our highest incremental rate will be charged for late returns and overuse. You will not be

entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder to account for time

in transit, Act(s) of God, event(s) of force majeure or any other period(s) of nonuse. We have estimated the Rent

based on your estimate of the length of the Term (the "Estimated Rent”). Unless otherwise agreed by LER in

writing, you agree: (a) to pay us: (i) the Estimated Rent specified on P.1 in advance of the Term (the

"Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct

any amount(s) you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no

Prepayment will be deemed a limit of your liability to us; and (iv) all Prepayments are NON-REFUNDABLE.

Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.

3. Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(s) unless you thereupon

reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good

order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was

selected (not based on any recommendation by us), carefully examined, counted and tested by you or your

agent(s); and (b) you: (i) have carefully reviewed and fully understand all laws, rules, regulations, training,

instructions, user manuals, maintenance requirements, and other information, if any, including all EPA, OSHA,

MSHA, ASME, IBC, IFC, IEEE, UL, ASSP, DOT, FMCSA, IFTA, ANSI and other standards, applicable to the

Item(s) (collectively, "Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust, Ventilation,

cleaning, and site assessment requirements ); (iii) have been made aware of the need to use all applicable

personal protective equipment and safety devices (including RESPIRATORY PROTECTION); (iv) will use each

Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all applicable notice(s)

to, and obtain all applicable licenses, authorizations, permits and approvals from, all affected parties, including

governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure that all underground

lines, cables and conduits are clearly and properly marked before using any Item(s) to disturb the ground surface

(call 811 or 800-282-7411 (770-623-4344 for professional excavators) and go to www.Georgia811.com at

least 72 hours before beginning any mechanized digging); (vi) will immediately cease using any Item that is

damaged, breaks down, or proves defective (a "Malfunction”); and (vii) will ensure that all others comply with this

Contract. You agree to notify: (A) the police and LER in the event of any theft or accident involving any Rented

Item(s); and (B) LER if any of the above requirements is/are breached or incorrect.


 

4. Except with respect to Rented Items LER rents from one or more third parties (each, a "TPO”) and then re-

rents to you ("Re-Rented Items”), Liberty owns and will retain title to all Rented Items at all times. You will have


 

exclusive control over the Rented Item(s) during the Term; subject however, to your obligation to fully and

timely comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien,

claim, security interest or encumbrance on any Rented Item(s); (b) have any title or ownership interest in or with

respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any Rented

Item(s) or this Contract, without our prior written consent (in our sole discretion). Liberty may, from time to

time, substitute Rented Item(s) and/or sell or assign all or any part of its interests in one or more Rented Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of LER or any TPO.


 

5. If we agree to deliver and/or retrieve any Item(s), you agree to: (a) pay our regular charge(s) therefor, and

for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access

to the Site. We will not be responsible for delay(s) caused by any acts or omissions of/by you, your agents,

employees or contractors, or any other parties, including providers of other equipment or services ("Other

Providers”) for which you agree to indemnify, defend and hold harmless Liberty, its agents, employees and

contractors. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of

our representatives and/or delivery personnel regarding the same (including status, condition, quality, utility,

defects, and quantities of or with respect to the Item(s) and the Site).

6. NO WARRANTIES. LER IS NOT THE MANUFACTURER OR DESIGNER of any of the Item(s), all

of which are provided "AS-IS”. NEITHER LIBERTY NOR ANY TPO MAKES ANY WARRANTY(IES),

EXPRESS OR IMPLIED (INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANTABILITY,

SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY,

CAPACITY, FREEDOM FROM DEFECTS AND GOOD AND WORKMANLIKE PERFORMANCE, as

well as any warranty(ies) arising from course of dealing, course of performance and/or usage of trade)

regarding any Item(s) or Service(s) provided by or at the direction of LER or any TPO, nor does LER or

any TPO make any warranty against INTERFERENCE OR INFRINGEMENT, all of which warranties you

hereby waive. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE

REPRESENTATIONS OR WARRANTIES BY LER OR ANY TPO.

7. In the event of a Malfunction (as defined in § 3), you will immediately notify LER, and provided such

Malfunction did not result from or in connection with: (a) any wrongful or negligent act or omission of/by you or

anyone you permit to use or otherwise deal with any Rented Item; or (b) your breach of any provision of this

Contract, LER may, at its sole option: (i) repair the Malfunctioning Item; (ii) provide you with a comparable item;

or (iii) solely with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this

Contract. The foregoing remedies are EXCLUSIVE. Neither LER nor any TPO shall have other obligation(s)

regarding Malfunctions, all of which you waive, together with all incidental and consequential damages.

8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE SERVICED,

MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR ITS/THEIR INTENDED

PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED,

AND IF APPLICABLE, LICENSED, ADULT USERS, OPERATORS AND OCCUPANTS. YOU AGREE

TO PROVIDE ALL APPLICABLE FAMILIARIZATION, TRAINING, INSTRUCTIONS AND WARNINGS TO

ALL SUCH PARTIES, and ensure that each such Item is used, operated and occupied safely and only:

(a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by

LER at the Site; (d) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED AND/OR

LICENSED ADULTS; and (e) otherwise in full compliance with this Contract, the Instructions and all

applicable warranties and insurance policies, at all times.

9. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME

ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS, THEFT,

PROPERTY DAMAGE, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE

ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS,

DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR

IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE,

LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, CLEANING, STORAGE,

SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SER-

VICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, "RISKS”); (B) RELEASE AND DISCHARGE,

AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, LER, EACH TPO, their respective parents,

affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors,

agents, employees, insurers, subrogees, representatives, successors and assigns (each, an "Indemnitee”), for,

from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from and/or in connection with the Item(s), this Contract, our negligence, and/or

your breach of any one or more of the terms hereof; and except only as provided in § 7, (C) WAIVE all rights,

remedies and defenses available under the Uniform Commercial Code, as well as all direct, indirect, incidental,

consequential, general, special, exemplary and punitive damages, against each and every Indemnitee.

10. You will ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the Item(s), protect,

properly maintain and care for each Item at all times, keep each such Item safely and securely stored and locked

when not in use, and return each such Item to LER on time at the end of the Term, complete (with all original

batteries, cords, attachments and peripherals), clean and free of contamination (including asbestos, beryllium,

silica and pathogens), and otherwise in good order, condition and repair, properly serviced and maintained, and

if applicable, full of the appropriate fuel, fluids and lubricants. If you fail to do so, in addition to any other amounts

specified on P.1, you will promptly pay to Liberty: (a) Rent at our highest incremental rate(s) until all such Item(s)

have been returned or replaced as required; and (b) all costs and expenses we may incur in connection with

such failure. You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the

influence of any intoxicant(s) (including without limitation, CANNABIS AND ALCOHOL, WHETHER OR NOT

LEGAL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented

Item(s); (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any

flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent

any safety equipment or device(s) in, on or with any Item(s); or (v) take possession of or exercise control over

any Rented Item(s), without our prior consent (in our sole and absolute discretion).

11. You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits of

$1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new)

replacement cost thereof; (c) workers’ compensation insurance; and (d) for all vehicles and trailers included with

or in the Rented Item(s): (i) hired auto liability insurance with minimum limits of $1,000,000; (ii) hired auto

physical damage insurance for actual cash value; and (iii) replacement cost contents insurance for all contents

thereof. Such policies shall, whenever possible: (A) name LER as an additional insured and loss payee; (B)

waive subrogation against us; (C) be primary and non-contributory; and (D) include a severability of interests

clause and such other provisions (including deductibles) as we may require. You irrevocably appoint LER as your

agent and attorney-in-fact for purposes of submitting, negotiating and settling claims on all such policies.

12. If and only if, we have offered, and you have paid for our OPTIONAL LIMITED DAMAGE WAIVER ("LDW”)

(set forth on P.1, if available) in advance of the Term, you will have no liability to us for 80% of the costs for

physical damage to Item(s) covered by LDW ("Covered Item(s)”); provided however, that you will, remain fully

liable for: (a) intentional damage as well as all loss of and damage to: (i) Item(s) not covered by LDW; (ii)

Covered Item(s) lost or damaged during transportation and/or as a result of: (A) any breach of this Contract by

you or your agents, employees, sublessees, transferees, borrowers, successors and/or assigns; (B) theft or other

failure to timely return Covered Item(s) to us; (C) negligence, misuse and/or abuse of Rented Item(s) (including

submerging, overturning, overloading and damage by falling objects); (iii) GPS and telematics systems, passen-

ger vehicles, batteries, keys, glass, tires, tubes, tracks, booms, belts, chains, knobs, fittings and hoses; (b) 20%

of the first $5,000 of covered repair/replacement costs; and (c) all repair and replacement costs exceeding

$5,000 in the aggregate across all Covered Item(s). You may decline LDW if you provide the property/physical

damage/inland marine insurance referenced in § 11. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.

13. You agree to fully and timely pay all taxes (including without limitation, rental, sales, excise, use, machinery

and fuel taxes), fines, fees, tolls, duties, assessments and other charges (including without limitation, any heavy

equipment surcharge(s) permitted under applicable law) related to each Item and/or the transactions

contemplated herein. If legal action is commenced in connection herewith, we will be entitled to recover our

associated costs and expenses (including without limitation, attorneys’ fees) from you if we prevail. To the

maximum extent permitted under applicable law, you grant to LER a lien on all real and personal property: (a)

placed in or on; and/or (b) improved with, any Rented Item(s). We may, without notice or liability to you, monitor

and/or inspect, in person and/or electronically (including via Telematics/GPS systems) any Rented Item(s) at any

time. You consent thereto and agree that all information thereby obtained will be LER’s property. If any

performance required of us is delayed, impaired or made more costly as a result of any act or omission of/by

you, any Other Provider(s) or any "Act of God,” event of force majeure (including fire, flood, storm, earthquake,

tsunami, slide, subsidence, collapse, riot, war, violence or threat thereof, theft, terrorism, power surge or outage,

epidemic, pandemic and governmental and regulatory actions) or other facts or circumstances beyond our

reasonable control, we will be excused from such performance. You waive all statutes of limitations regarding our

rights and remedies. All amounts due hereunder but not timely paid will bear interest at 18% per annum. You

authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide (up to

150% of the new replacement cost of the Item(s)). You agree to pay us the maximum lawful charge for any

check you write which is returned unpaid. Our maximum liability in connection with this Contract is limited to the

amount(s) actually paid by you and received by us hereunder for the Item(s) identified on P.1. Neither our

exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will

constitute an election of remedies or a waiver of any of our rights or remedies. Time is of the essence. There are

no third-party beneficiaries hereto other than the applicable Indemnitees. The terms of this Contract are

severable. If any provision (t)hereof is deemed invalid or unenforceable by any court or arbitrator of competent

jurisdiction, such provision will be deleted, and the remainder (t)hereof will remain valid and enforceable. This

Contract, and any addenda we provide, each of which shall be deemed incorporated herein, represent(s) the

entire agreement between you and LER, superseding all other agreements and representations (including our

website and advertising) and cannot otherwise be amended or extended except in a writing signed by LER.

These Terms and Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us at

any time (except only as we may otherwise agree). This Contract: (i) is a true operating lease, and not a

financing; (ii) is fair and reasonable; and (iii) shall bind and be enforceable by you, LER, the other Indemnitees

and their respective insurers, subrogees, successors and permitted assigns. Digital, electronic, photocopied and

facsimiled signatures and initials appearing on this Contract will be deemed originals.

14. Item(s), if any, sold to you ("Sale Items”), as provided on P.1 are provided "AS-IS” and "WITH ALL

FAULTS,” and are subject to the terms of this Contract (modified to address sales); provided that we will have no

obligations under § 7. All item(s) not specifically identified as Sale Items on P.1 will be deemed "Rented Item(s)”.

15. This is a "net” rental. Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to fully

and timely honor, pay, perform or comply with this Contract and/or any of your obligations arising hereunder or in

connection herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or

cease conducting business, or if any Rented Item(s) shall be lost or, except to the extent covered by LDW per §

12, damaged, you will be in DEFAULT under this Contract, whereupon, Liberty may, with or without legal

process or notice (and without liability to you or any guarantor), to the maximum extent permitted under

applicable law: (i) cancel the Term and/or the subject Contract(s) (and/or your rights to use and possess the

Rented Item(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict and/or disable any Item(s) without

being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage, including

without limitation, any and all damage to crops, flora and/or fauna (for which you will indemnify, defend and hold

harmless each Indemnitee); (iv) perform your obligations hereunder on your behalf, without being obligated to do

so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor our associated damages,

losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, overtime, loss of

use, interest, attorneys’ fees, repossession costs, and collection costs); and/or (vii) pursue any one or more other

rights and/or remedies available in connection (t)herewith, all of which shall be cumulative and unimpaired.

16. This Contract shall be governed by and enforceable under the laws of Georgia. Disputes arising in

connection with this Contract and/or its subject matter, shall, at LER’s option, be submitted to binding

ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator in

a location selected by LER. Judgment on the arbitrator’s award shall be final and binding and may be entered in

any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection

herewith shall lie solely and exclusively in the federal, state and local courts located in or nearest to, Pickens

County, Georgia (unless waived by LER). You consent and submit thereto and waive all claims that such venue

lies in an inconvenient forum. YOU HEREBY WAIVE YOUR RIGHT(S) TO: (A) PARTICIPATE IN ANY CLASS,

COLLECTIVE OR OTHER JOINT ACTION AGAINST LER; AND (B) TRIAL BY JURY.

17. WARNING: Unlawfully appropriating the property of another with the intention of depriving him or her of the

property, and/or obtaining use of personal property available only for compensation by deception and with the

intent to avoid payment, may be deemed THEFT, resulting in CRIMINAL PROSECUTION AND/OR CIVIL

PENALTY(IES). See OCGA, §16-8-2, et seq. and its/their successor provision(s) for details.

LESSEE ACKNOWLEDGES THAT A LARGE-PRINT VERSION OF THESE TERMS AND CONDITIONS HAS BEEN MADE AVAILABLE TO LESSEE


 

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