CREDIT TERMS
These terms and conditions are in addition to the terms of the LESSOR’s Standard Credit Agreement Terms, which are incorporated herein by reference as if fully set forth herein and can be found at https://old-site.gregorypoole.com/credit-terms/. Customer agrees to be bound by electronic communications relating to transactions with Gregory Poole.
CONDITIONS
The personal property (hereafter called “EQUIPMENT”) described herein shall include all replacement parts, additions, repairs and accessories incorporated therein or affixed thereto.
TITLE/TRUE LEASE
Gregory Poole Equipment Company, with its office and place of business located at 4807 Beryl Road, Raleigh, North Carolina 27606 (together with its successors and/or assigns, collectively, hereafter called “LESSOR”) hereby leases to the LESSEE identified herein and the LESSEE hereby takes and hires from the LESSOR the personal property described on the front of this Rental Contract. Title to EQUIPMENT at all times shall be and remain in LESSOR and LESSEE shall keep EQUIPMENT and title thereto free and clear of any and all liens or encumbrances. LESSOR may elect to file financing statements pursuant to Section 9-505 of the UCC. LESSEE ACKNOWLEDGES THAT THIS RENTAL CONTRACT CONSTITUTES A TRUE LEASE. LESSEE grants LESSOR a specific power of attorney for LESSOR to use as follows: LESSOR may sign and file on LESSEE’S behalf any document LESSOR deems necessary to perfect or protect LESSOR’S interest in the EQUIPMENT or pursuant to the Uniform Commercial Code.
RENT
RENT for EQUIPMENT shall be paid by LESSEE to LESSOR in the amounts and at the time stated at the office of the LESSOR at the address above stated or to such other person, firm, or corporation or at such other place as may from time to time be directed in writing by LESSOR.
USE OF AND TRANSPORTATION OF EQUIPMENT
LESSEE shall not cause or permit EQUIPMENT to be removed from or taken out of the state in which EQUIPMENT is delivered except upon the prior written consent of LESSOR. LESSEE shall not permit or cause EQUIPMENT to be used or operated by anyone other than competent, qualified personnel and LESSEE shall be liable for and shall pay all costs of operation, transportation and use of EQUIPMENT and will not permit or cause EQUIPMENT to be used in violation of EQUIPMENT’S intended use. EQUIPMENT shall not be used in connection with a nuclear facility or hazardous application. LESSEE shall not cause or permit the EQUIPMENT to become affixed or attached to any real property or any structures erected thereon. Upon the expiration or termination of this Rental Contract, LESSEE shall deliver EQUIPMENT to LESSOR unencumbered by any lien or encumbrance and in as good condition as when received hereunder by LESSEE, reasonable wear and tear resulting from proper use thereof expected. By entering into this Rental Contract, LESSEE represents and warrants to LESSOR that LESSEE will only permit qualified and properly trained persons to use, operate or transport the EQUIPMENT. LESSOR makes no representations and warranties whatsoever about the proper and safe use, operation or transportation of the EQUIPMENT. LESSEE should contact the specific manufacturer of the EQUIPMENT for questions or information on the safe and proper use, operation and transportation of the EQUIPMENT and refer to the operator’s manual. If LESSEE is not provided with an operator’s manual, it is LESSEE’S responsibility to request it from LESSOR.
RENTAL CONTRACT TERM
(a) The Rental Contract terms shall begin on the date the EQUIPMENT is picked up by LESSEE or is delivered by LESSOR and shall end on the date all of the EQUIPMENT is returned to LESSOR’S address indicated on the face side hereof; provided, however, that the term hereof in no event shall be less than the “minimum term” indicated on the face side hereof.
(b) Conversion. On the final return to LESSOR of the EQUIPMENT, LESSEE hereby agrees to return all items of EQUIPMENT. If LESSEE does not return all items of EQUIPMENT at the time of final return, those items not returned shall, at LESSOR’S option, be deemed sold to LESSEE and automatically converted to a sale to LESSEE at the then current list price of manufacturer thereof. Upon receipt of the sales invoice converting to sale the items of EQUIPMENT which were not returned, the LESSEE hereby agrees to pay to LESSOR the amount of the sale as stated on the sales invoice, without any right of set off, recoupment, counterclaim, deduction, defense or abatement. If not paid in full upon receipt of invoice, the unpaid balance shall bear interest at the highest rate allowed by law from the invoice date until paid in full; and
(c) LESSOR will make reasonable efforts to meet the delivery date, if any, stated on the face hereof and to meet any EQUIPMENT pick up date that may be scheduled hereafter, but shall not be liable for any failure to meet such dates.
COMPLIANCE WITH LAWS: TAXES
LESSEE shall comply with and conform to all laws, ordinances and regulations that shall relate to the possession, use, operation, transportation or maintenance of EQUIPMENT and shall save LESSOR harmless from and against any and all actual or asserted violations thereof. LESSEE is responsible for payment of any and all ad valorem taxes assessed on the EQUIPMENT during the term of this Rental Contract. LESSOR shall pay such taxes to the taxing authority and shall compute, on a pro rata basis, LESSEE’S responsibility for such taxes, based on the period of the tax year in which LESSEE is in possession of the EQUIPMENT. Upon LESSEE’S receipt of a statement from LESSOR indicating LESSEE’S share of such taxes, LESSEE shall immediately pay such amounts to LESSOR and such amounts shall constitute additional RENT payable under this Rental Contract. LESSEE shall pay as additional RENT any amount from assessment by any State or Municipal body against the LESSOR for sales, use and/or gross receipts taxes with respect to the EQUIPMENT. Such payment shall be made at the time and in manner requested by LESSOR.
INSURANCES
(A) Public Liability and Property Damage Liability Insurance (Third Party). LESSEE will, at its own expense and at all times during the term of this Rental Contract maintain in force Commercial General Liability insurance with a combined, single limit for bodily injury, including death, and property damages of $1,000,000.00 on a primary and not excess or contributory basis, for LESSEE’S liability for damages sustained by any person, including, but not limited to, agents or employees of LESSEE, as a result of the maintenance, use, operation, possession, storage, erection, dismantling, servicing or transportation of EQUIPMENT. LESSEE will, on demand, furnish LESSOR a Certificate of Insurance evidencing such insurance, endorsed to provide that such insurance may not be canceled or materially modified except on 30 days prior written notice to LESSOR at the LESSOR’S branch from which the EQUIPMENT was rented, LESSEE agrees to abide by all terms and conditions of said insurance. LESSEE, its agents and employees will cooperate fully with LESSOR and LESSEE’S insurer in an investigation, prosecution or defense of any claim or suit arising therefrom and will do nothing to impair or invalidate the applicable insurance coverage, LESSOR’S acceptance of LESSEE’S Certificate of insurance will not be deemed a waiver, limitation or liability hereunder.
(B) Property Insurance for LESSOR’S EQUIPMENT, LESSEE will, at its own expense and at all times during the term of this Rental Contract, maintain in force Property insurance in an amount adequate to cover any damages to, or loss of, the EQUIPMENT. LESSEE’S policy must expressly cover non-owned equipment while in LESSEE’S care, custody or control. LESSEE will, on demand, furnish LESSOR a Certificate of insurance evidencing such insurance and endorsed to provide that such insurance may not be canceled or materially modified except on 30 days prior written notice to LESSOR at the LESSOR’S branch from which the EQUIPMENT was rented. The amount, terms and conditions of the insurance required by this sub-paragraph must be acceptable to LESSOR. LESSEE agrees to abide by all of the terms and conditions of such insurance.
LIABILITY; INDEMNIFICATION
LESSEE shall indemnify and save LESSOR harmless from and against (A) any and all damage or injury to or loss of EQUIPMENT or any part thereof; and (B) any and all claims, damages, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees incurred by LESSOR) and liability whatsoever (including, without limitation, any personal injury, bodily injury, death or damage to any persons or property) occasioned by or resulting from the use, operation, possession, or transportation or EQUIPMENT. The amount of damage for any loss of or injury to EQUIPMENT shall be based upon the then actual reasonable market value and without regard to the RENT paid or accrued hereunder.
FIRE, THEFT, AND VANDALISM WAIVER
If the EQUIPMENT is used in compliance with this Rental Contract and if LESSEE accepts the “FIRE, THEFT, AND VANDALISM Waiver” option (hereafter called “FTV”), which is NOT INSURANCE, at the beginning of the rental period by initialing the FTV Accepts Box on the front of this Rental Contract, and pays the additional charges for the FTV when due, then LESSOR agrees to waive, to the extent specified herein and in the “FIRE, THEFT, AND VANDALISM WAIVER GUIDE” provided herewith, LESSEE’S responsibility to LESSOR for loss of or damage to the EQUIPMENT exceeding $2,500.00 per item of EQUIPMENT. LESSOR reserves the right to deny FTV to LESSEE. LESSEE not initialing either the “YES ” or “NO” FTV box will be deemed to have accepted FTV unless the EQUIPMENT is insured or insurable by LESSEE. LESSEE will provide LESSOR with a copy of LESSEE’S Certificate of Insurance upon request, but LESSEE’S failure to obtain coverage on the EQUIPMENT is at LESSEE’S peril and will not automatically trigger FTV if the EQUIPMENT is insurable. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, LESSEE WILL BE LIABLE FOR ALL LOSS OR DAMAGE TO THE EQUIPMENT AND EXPENSE OF LESSOR RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE, WHICH INCLUDES, BUT IS NOT LIMITED TO THE USE OR OPERATION OF THE EQUIPMENT IN A RECKLESS OR ABUSIVE MANNER OR INTENTIONAL DAMAGE TO THE EQUIPMENT BY LESSEE OR WITH THE LESSEE’S PERMISSION, OR UNDER ANY OF THE FOLLOWING CIRCUMSTANCES: (A) striking overhead objects with the EQUIPMENT; (B) all loss and damage associated with vandalism, malicious mischief, theft or conversion of the EQUIPMENT not documented by LESSEE’S prompt filing with the applicable public authorities (with an immediate written copy to LESSOR) of a formal written theft, vandalism or conversion report; (C) a loss of, or damage to, the EQUIPMENT resulting from any exposure to radioactive, contaminated or other hazardous materials; (D) boom damage from overloading of a boom or from a collision when a boom is in motion; (E) all loss or damage associated with the EQUIPMENT’S rollover or upset; (F) use of or operation of the EQUIPMENT by a person other than an employee of LESSEE possessing all necessary permits and not otherwise prohibited by law from such operation; (G) use or operations of the EQUIPMENT in violation of any law or ordinance; (H) the failure of a LESSEE to perform, or the improper performance of, the basic maintenance required under this Rental Contract ; (I) any failure of LESSEE to comply with any notice requirements of this Rental Contract; and (J) LESSEE’S failure to secure the EQUIPMENT by leaving the keys readily available to any unauthorized operator or by not reasonably restricting access to the EQUIPMENT. If such charges for the FTV are not paid as specified in this Rental Contract, then at LESSOR’S option and discretion, LESSOR may terminate this Rental Contract without prejudice to any of its other remedies. Pending exercise of LESSOR’S option, or if LESSOR’S option is not exercised, the FTV will not be in effect regardless of any initialing of the “Accepts” Box and LESSEE will remain fully responsible for loss and damage to the EQUIPMENT. In the event of any loss or damage to the EQUIPMENT, LESSOR will subrogate with respect to any rights of LESSEE to recover against any person or entity. LESSEE will execute and deliver whatever instruments are required and do whatever else is necessary to secure such rights. LESSEE will cooperate fully with LESSOR and its insurers in the prosecution of those rights and will neither take, nor permit nor suffer any action to prejudice LESSOR’S rights with respect thereto.
CONDITION UPON DELIVERY
LESSEE shall be conclusively presumed to have accepted EQUIPMENT in the condition existing at the time of delivery hereunder unless within forty-eight (48) hours thereafter LESSEE shall notify LESSOR of any actual existing defects and of LESSEE’S refusal to accept EQUIPMENT in its then condition and thereupon LESSOR, if it shall so elect, without liability to LESSEE, may arrange to correct any such defect of EQUIPMENT, or may pay to LESSEE any RENT, subject to offsets paid hereunder and terminate this Rental Contract.
REPAIRS; MAINTENANCE
LESSEE at all times shall maintain EQUIPMENT in good repair and operating condition and will not add, change, alter or remove any markings, insignia, lettering or numbering on the above described EQUIPMENT. LESSEE agrees to check and maintain engine oil, radiator air flow, water, air intake filter, LP. gas, cylinders and fuel daily. LESSEE is responsible for all periodic maintenance, fuel, and missing parts. Qualified personnel, as approved by LESSOR, shall make all repairs and replacements only, for such purposes only standard parts and accessories will be used. LESSEE will pay all claims arising from the LESSEE’S abuse of the EQUIPMENT or from the LESSEE’S failure to maintain the equipment, ordinary wear and tear expected. LESSEE shall be responsible for any tire failures or abnormal tire wear.
LESSOR LIABILITY
In no event shall LESSOR be liable for special or consequential damages whatsoever or however caused.
INSPECTIONS
LESSEE, unless otherwise agreed by LESSOR, shall advise LESSOR of the exact location of EQUIPMENT. LESSEE shall give LESSOR immediate notice of any attachment or other judicial proceeding affecting EQUIPMENT and shall indemnify and save LESSOR harmless from and against any and all loss or damage that may result therefrom. LESSOR, for the purpose of inspection, at all reasonable times, may enter upon any building, structure, or place where EQUIPMENT is located and LESSOR may remove said EQUIPMENT, without prior notice to LESSEE, if the EQUIPMENT, in the judgment of LESSOR, is being used beyond its capacity or the same is in any manner being improperly cared for or abused.
WARRANTIES
LESSOR MAKES NO REPRESENTATION, GUARANTEE, OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO QUALITY, AND/OR FITNESS FOR PARTICUL AR PURPOSES OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION OF EQUIPMENT, UNLESS REDUCED TO WRITING AND MADE A PART OF THIS RENTAL CONTRACT, it being agreed that the EQUIPMENT is being leased “As Is” and in no event shall LESSOR be liable to LESSEE for anticipated profits or incidental or consequential damages. This Rental Contract, in conjunction with LESSEE’S signed and executed Application for Credit and Standard Credit Agreement, constitutes the entire agreement between LESSOR and LESEEE and no oral agreement, guaranty, promise, condition, or representation heretofore, made or claimed to have been made by LESSOR shall be binding upon LESSOR unless herein expressly stated.
EVENTS OF DEFAULT
Default shall mean any breach of this Rental Contract by LESSEE. In the event LESSEE shall default hereunder or shall become insolvent or shall cease doing business as a going concern or a petition is filed by or against LESSEE under the U.S. Bankruptcy Act or any amendment thereof or if a petition is filed by or, against LESSEE under state court receivership statutes or if LESSEE shall make an assignment for the benefit of creditors or if LESSEE shall attempt to remove or sell, transfer, or encumber or part with possession of EQUIPMENT, then LESSOR, without notice or liability or legal process, may enter into any premises where said EQUIPMENT may be located and repossess the same, disconnecting and separating EQUIPMENT from any other property and using all force necessary or permitted by applicable law, and LESSEE hereby expressly waives all rights to possession of EQUIPMENT and any and all claims for injury or loss sustained or suffered by LESSEE by reason of any such repossession of EQUIPMENT by LESSOR. In the event legal action is necessary to enforce the rights of LESSOR hereunder, LESSOR shall be entitled to recover reasonable attorneys’ fees as well as other costs of collection in accordance with the laws in the state in which this Rental Contract is executed.
LESSOR’S REMEDIES ON DEFAULT
Upon the occurrence of an Event of Default, LESSOR shall have all the rights and remedies provided by applicable law and by this Rental Contract. Notwithstanding that this Rental Contract is a lease and title to the EQUIPMENT shall at all times remain in LESSOR. LESSOR may nevertheless at its option choose those rights and remedies of a secured party under the Uniform Commercial Code. In addition, LESSOR, at its option, may: (a) declare all unpaid RENT and other sums due and to become due hereunder immediately due and payable; (b) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by LESSEE of any and all covenants of this Rental Contract and to recover damages for the breach thereof; (c) demand that LESSEE deliver the EQUIPMENT forthwith to LESSOR at LESSEE’S expense at such place as LESSOR may designate; and (d) without notice, liability or legal process, enter by itself and/or its agents into any premises of or under control or jurisdiction of LESSEE or any agent of LESSEE where the EQUIPMENT may be or by LESSEE is believed to be, and repossess all or any item thereof, disconnecting and separating all thereof from any other property and using all force necessary or permitted by applicable law so to do, LESSEE hereby expressly waiving all further rights to possession of the EQUIPMENT and all claims for injuries suffered through or loss caused by such repossession. Notwithstanding any recovery of the EQUIPMENT by LESSOR, LESSOR shall, nevertheless, also be entitled to recover immediately as liquidated damages for loss of the bargain, and not as penalty, any unpaid RENT that accrued on or before the occurrence of the Event of Default plus an amount equal to the difference between the present value, as of the date of the occurrence of such Event of Default, of the aggregate RENT reserved hereunder for the unexpired term of this Rental Contract and the then present value of the aggregate rental value of all EQUIPMENT for such unexpired term which the LESSOR reasonably estimates to be obtainable for the use of all of the EQUIPMENT during such unexpired term. If any statute governing the proceeding in which such damages are to be proved specifies the amount of such claim, LESSOR shall be entitled to prove as and for damages for the breach an amount equal to that allowed under such statute. The provisions of this paragraph shall be without prejudice to any rights given to LESSOR by such statute to prove for any amounts allowed thereby. Should any proceedings be instituted by or against LESSOR hereunder and/or for possession of any or all of the EQUIPMENT or for any other relief, LESSEE shall pay the costs and expenses incurred by LESSOR in connection therewith including, without limitation, attorneys’ fees and other professional fees incurred by LESSOR. No remedy of LESSOR hereunder shall be exclusive of any remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy.
ASSIGNMENT AND SUBLETTING
LESSEE shall not assign or in any manner transfer this Rental Contract or any estate, interest, or benefit therein or sublet said EQUIPMENT or permit the use of the same by anyone other than LESSEE, its agents and employees without the prior written consent of LESSOR. Consent by LESSOR to any assignment or transfer under this Rental Contract shall be limited to the specific assignment or transfer of which LESSOR’S consent is sought and shall not constitute a waiver, release or consent to any future assignments or transfers on the part of LESSOR.
EFFECT OF TERMINATION/ACCELERATION CLAUSE
In the event LESSOR shall terminate this Rental Contract or shall terminate LESSEE’S possession of EQUIPMENT prior to the expiration of the TERM, the RENT shall not abate by reason thereof or for any other reason and unpaid installments of RENT shall bear interest from the due date thereof at the highest lawful rate. At any time beyond the minimum rental period, the term of which is described above, LESSOR reserves the right to terminate this Rental Contract upon five (5) days written notice to LESSEE. LESSOR further reserves the right to retake possession of the EQUIPMENT without prior notice to LESSEE.
CONSTRUCTION I MODIFICATION
This Rental Contract shall be construed in accordance with the laws of the state of North Carolina. This Rental Contract contains the entire agreement of the parties and cannot be modified except in a writing signed by LESSOR. Upon thirty (30) days written notice to LESSEE, LESSOR reserves the right to make such changes to the terms of the Rental Contract, including, but not limited to, changes in the Rental Rates and Overtime Usage charges, as LESSOR shall deem necessary.
NON-WAIVER
Failure of LESSOR to insist on strict performance of any of the covenants or agreements set forth herein shall not be construed to be a waiver of any such or other covenants or agreements and the same shall remain in full force and effect.
FINANCE CHARGE
Rental payments are due the first day of the term. Rental payments, which are not paid within 30 days of the due date, shall be subject to a Finance Charge computed on such account balance by a “Periodic Rate” equal to the highest rate permitted by law.
RENTAL CONTRACTS WITH PURCHASE OPTION
In the event that this Rental Contract contains a purchase option on the Front Side hereof, LESSEE shall, in addition to the purchase price, maintenance, repairs and other items set forth in the Rental Contract including these Terms and Conditions, be responsible for the payment of any local, state and federal taxes payable in connection with such purchase and sale.