The Shedd, LLC Equipment Use Agreement
TERMS AND CONDITIONS
By clicking the “I Accept” button, you, the Customer (as defined below) agree and acknowledge that Customer has read, understands, accepts full responsibility for and is bound by the terms and conditions contained in this Rental Agreement (as defined below).
“Rental Agreement” means this Online Rental Agreement, including the Reservation Details. “The Shedd” means The Shedd, LLC. “Equipment” means any one or more of the items identified in the Reservation Details and any accessories, attachments or other similar items delivered to Customer with the Equipment (but excluding any consumables separately purchased by Customer). “Customer” means the person or entity identified as such in the Reservation Detail or any representative, agent, officer or employee of Customer. “Facility” means any of The Shedd’s warehouses, wherever located, from which Customer receives Equipment. “Rental Period” means the period of time between the date “From” and date “To” set forth in the Reservation Details, except that the Rental Period may terminate earlier as provided inSections 18 and 24 hereof or if Customer returns the Equipment earlier. “Reservation Details” means the Equipment, Rental Period, delivery information, Customer address, payment information and other information set forth on the Confirmation/Order Summary Screen. “Credit Card” means the credit card provided by Customer as part of this Rental Agreement or otherwise kept on file with The Shedd.
2. AUTHORITY TO SIGN
Any individual agreeing to this Rental Agreement represents and warrants that he or she is of legal age, competent and has the authority and power to sign this Rental Agreement on behalf of the Customer.
3. INDEMNITY / HOLD HARMLESS
To the Fullest Extent Permitted by Law, Customer Agrees to Indemnify, Defend and Hold The Shedd, and Any of Its Officers, Agents, Members, Managers, Servants, and Employees, and The Shedd’s Affiliates and Subsidiaries, Harmless From and Against Any and All Liability, Claims, Loss, Damages or Costs (Including, but Not Limited to, Attorneys’ Fees, as Incurred, Loss of Profit, Business Interruption or Other Special or Consequential Damages, Damages Relating to Property Damage, Bodily Injury or Damages Relating to Wrongful Death) Arising Out of or Related to the Operation, Use, Possession or Rental of the Equipment. This Indemnity Provision Also Applies to Any Claims Asserted Against The Shedd Based Upon Strict or Product Liability Causes of Action. However, Customer Shall Not Be Obligated to Indemnify The Shedd for That Part of Any Loss, Damage or Liability Caused Solely by the Intentional Misconduct or Sole Negligence of The Shedd. In Furtherance of, but Not in Limitation of the Indemnity Provisions in This Rental Agreement, Customer Expressly and Specifically Agrees That the Foregoing Obligation to Indemnify Shall Not in Any Way Be Affected or Diminished by Any Statutory or Constitutional Limitation of Liability or Immunity Customer Enjoys From Suits by Its Own Employees. The Duty to Indemnify Will Continue in Full Force and Effect Notwithstanding the Expiration or Early Termination of This Rental Agreement.
4. INSPECTION OF EQUIPMENT
Customer acknowledges that Customer will inspect the Equipment prior to using the Equipment, and Customer will only use the Equipment if Customer determines that the Equipment is in good working order and repair, and is suitable for Customer’s needs. Customer acknowledges that Customer is familiar with the proper operation and use of each item of Equipment. Customer acknowledges that, prior to using the Equipment, Customer will read all safety bulletins and operator manuals provided by The Shedd for each item of Equipment.
5. LIMITATION OF LIABILITY
A. In no event shall The Shedd be liable or responsible to Customer or any other party for: (i) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its operation or its use, or (ii) The Shedd’s failure to deliver the Equipment as required hereunder, or (iii) The Shedd’s failure to repair or replace non-working Equipment. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to The Shedd and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.
B. In No Event Shall The Shedd Be Liable to the Customer Under This Rental Agreement for Any Special, Incidental, Indirect, Exemplary, or Consequential Damages, Whether Based on Breach of Contract, Warranty, Tort, Lost Profits or Savings, Loss of Income, Loss of Production, Punitive Damages, Injury to Reputation, Loss of Customers or Business, or Otherwise, and Whether or Not Customer Has Been Advised of the Possibility of Such Damage. Customer Acknowledges and Agrees That the Foregoing Limitations of Liability Are a Condition and Material Consideration for The Shedd’s Entry Into This Rental Agreement.
6. USE OF EQUIPMENT
Customer will not use or allow anyone to use the Equipment: (a) for an illegal purpose or in an illegal manner;(b) or who is not qualified to operate it, or (c) in a manner likely to cause damage to the Equipment, other property or personal injury. Customer agrees, at Customer’s sole expense, to comply with all applicable municipal, state, and federal laws, ordinances and regulations (including, without limitation, OSHA) which may apply to the use of the Equipment. Customer agrees to: (x) check filters, oil and fluid levels, hoses, and tire air pressure; (y) clean and visually inspect the Equipment daily; (z) and immediately notify The Shedd when Equipment needs repair or maintenance and cease using the Equipment. Customer acknowledges that The Shedd has no responsibility to inspect the Equipment while it is in Customer’s possession. The Shedd shall have the right to replace the Equipment with other reasonably similar equipment and to inspect the Equipment at any time and for any reason. Except as otherwise permitted in this Rental Agreement, Customer shall not alter or modify the Equipment.
7. DISCLAIMER OF WARRANTIES
The Shedd Makes No Warranties, Express or Implied, as to the Merchantability of the Equipment or Its Fitness for Any Particular Purpose. There is No Warranty That the Equipment is Suited for Customer’s Intended Use, or That It is Free From Defects. Except as May Be Specifically Set Forth in This Rental Agreement, The Shedd Disclaims All Warranties, Either Express or Implied, Made in Connection With This Rental Transaction.
8. MALFUNCTIONING EQUIPMENT
Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify The Shedd. If such condition is the result of normal operation, The Shedd will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. The Shedd has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect. Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Customer must return the Equipment to the Facility within twenty-four (24) hours from the time of defect in order to terminate rental charges.
9. RETURN OF EQUIPMENT /DAMAGED & LOST EQUIPMENT
At the expiration of the Rental Period, Customer will either return the Equipment to the Facility from which it was received during The Shedd’s regular business hours or shall have previously requested that The Shedd pick-up the Equipment at the Customer’s address as shown on the Reservation Details. The Equipment is to be in the same condition as when delivered to Customer, subject to reasonable wear and tear, as defined below. Subject to the terms and conditions of Section 14, Customer shall be liable for all damages to or loss of the Equipment from the time the Equipment leaves the Facility until the Equipment is returned to the Facility, including any damage during transit to or from Customer, or picked-up by The Shedd, as applicable.
10. REASONABLE WEAR AND TEAR
Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use. The following shall not be deemed reasonable wear and tear: (a) damage resulting from lack of lubrication, insertion of improper fuel, or maintenance of necessary oil, water and air pressure levels; (b) damage resulting from any collision, overturning, or improper operation, including overloading, overheating or exceeding the rated capacity of the Equipment; (c) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof, and (d)any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.
Customer agrees that the full amount of any deposit or any portion of the rental charge or Protection Fee received by The Shedd is non-refundable except as otherwise expressly set forth in this Section. In the event Customer cancels a Reservation Detail with greater than forty-eight (48) hours written notice prior to the beginning of the Rental Period, then The Shedd shall provide a full refund to the Customer of the amount of any deposit, rental charge or Protection Fee received from the Customer. In the event Customer cancels a Reservation Detail with forty-eight (48) hours or less written notice prior to the beginning of the Rental Period, The Shedd will suffer damages from such cancellation and, due to the difficulty in ascertaining such damages, the Customer agrees that The Shedd shall be entitled to retain, as liquidated damages, and not as a penalty for such cancellation, the full amount of any deposit, rental charge or Protection Fee received from the Customer.
12. LATE RETURN
Customer agrees that if the Equipment is not returned by the end of the Rental Period, The Shedd, in its sole discretion, may require Customer to continue to pay the rental rate(s) then in effect for the applicable Equipment as specified in the Reservation Details. Customer agrees that The Shedd reserves the right to charge, and Customer authorizes The Shedd to charge, the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this Section due to late return of Equipment.
13. RENTAL PERIOD / CALCULATION OF CHARGES
Rental charges commence for that day when the Equipment leaves the Facility and end for that day when the Equipment is returned to the Facility during The Shedd’s regular business hours or picked-up by The Shedd, as applicable. Rental charges accrue in twenty-four (24) hour increments and do not include the cost of any applicable taxes, the cost of the Delivery and Pick-up Service Charge, transportation surcharges, the cost of any consumables purchased by Customer (for example, and without limitation, cleaning solutions, sandpaper, saw blades or discs, drill bits, fluids, filters and other consumable items), or other miscellaneous charges specified in the Reservation Details or purchased at a Facility. If Customer chooses to have The Shedd deliver and pick-up the Equipment, Customer agrees to pay a Delivery and Pick-up Service Charge. Rental charges accrue during Saturdays, Sundays and Holidays occurring during the Rental Period; provided, however, rental charges will not accrued for the last day of a Rental Period if the Facility is not open for business on such day for return of the Equipment and provided Customer returns the Equipment on the next day the Facility is open for business. Except to the extent otherwise agreed to in advance by The Shedd in its sole discretion, Customer’s right to possess the Equipment terminates on the expiration of the Rental Period and retention of possession after this time is a material breach of this Rental Agreement. TIME IS OF THE ESSENCE.
14. PROTECTION FEE
Upon the acceptance of this Rental Agreement, Customer shall pay The Shedd a fee equal to six percent (6%) of the rental charges due under this Rental Agreement (the “Protection Fee”). The Protection Fee is not insurance. The Protection Fee is intended to limit Customer’s financial responsibility for damage to, or theft of, the Equipment during the Rental Period. Upon receipt of the Protection Fee from Customer, The Shedd waives its right to collect amounts from Customer exceeding the greater of fifty percent (50%) of the replacement value of the Equipment or fifty percent (50%) of the cost of repairs, as determined in The Shedd’s sole discretion, plus applicable state and local taxes, for damage or loss occurring to the Equipment during the Rental Period arising from theft of or physical damage to the Equipment. The Shedd does not waive a claim for loss or damage to tires, tubes or hoses caused by blow-outs, cuts, or punctures. Further, The Shedd does not waive a claim for loss or damage to the Equipment resulting from the negligent misuse or intentional abuse of the Equipment, as determined in The Shedd’s sole discretion. Customer agrees that The Shedd reserves the right to charge, and Customer authorizes The Shedd to charge, the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this Section due to damaged or lost Equipment.
All amounts due hereunder for the rental of the Equipment and for the Protection Fee shall be payable in full upon the date this Rental Agreement is accepted by Customer. Customer shall pay a late payment fee equal to the lesser of one and a half percent (1.5%) per month (18% per annum) on any payments due from Customer under this Rental Agreement which are outstanding after thirty (30) days, or the maximum amount allowed by applicable law. Customer agrees that The Shedd reserves the right to charge, and Customer authorizes The Shedd to charge, the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this Section due to late or past due payment(s) or rental charges.
16. TITLE / NO PURCHASE OPTION / NO LIENS
This Rental Agreement is not a contract of sale, and title to the Equipment shall at all times remain with The Shedd. Customer has no option or right to purchase the Equipment. Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances.
17. TIRE AND TUBE REPAIR OR REPLACEMENT
Repair or replacement of tires, tubes and hoses is the responsibility of Customer, and is not included in the rental rate.
Customer shall be deemed in default should Customer: (a) in any way fail to pay any amount when due hereunder, or to perform, observe or keep any provision of this Rental Agreement; (b) become Insolvent (as defined herein), or should The Shedd anticipate that Customer may become Insolvent, (c) fails to return the Equipment to The Shedd at the end of the Rental Period, or (d) otherwise be in default under this Rental Agreement. If Customer is in default, The Shedd may do any one or more of the following: (w) terminate the Rental Period; (x) declare the entire amount due hereunder immediately due and payable and commence legal action therefor; (y) to the extent permitted by law, cause The Shedd’s employees or agents, with notice but without legal process, to enter upon Customer’s property and take all action necessary to retake and repossess the Equipment, and Customer hereby consents to such entry, re-taking and re-possession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by The Shedd in retaking and repossessing the Equipment, or (z) pursue any other remedies available by law or in equity. Customer shall be considered “Insolvent” if Customer shall: (i) generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; (ii) make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; (iii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; (iv) have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, or (v) take any action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or any substantial part of its properties.
19. NO ASSIGNMENT, LENDING OR SUBLETTING
Customer shall not sublease, subrent, assign or loan the Equipment, and any such action by Customer shall be void. Customer agrees to use and keep the Equipment at the location set forth in the Reservation Details. The Shedd may at any time, without notice to Customer, transfer or assign this Rental Agreement or any Equipment or any moneys or other benefits due or to become due hereunder.
20. ENTIRE AGREEMENT / ONLY AGREEMENT
The Rental Agreement, including the Reservation Details, represents the entire agreement between Customer and The Shedd with respect to the Equipment and the rental of the Equipment. There are no oral or other representations or agreements not included herein. None of The Shedd’s rights or Customer’s rights may be changed and no extension of the terms of this Rental Agreement may be made except in writing, signed by both The Shedd and Customer. The headings used herein are for convenience and reference only and do not limit the contents of this Rental Agreement. The headings do not interpret, modify, or in any way limit the meaning of this Rental Agreement.
21. ORDER OF PRECEDENCE
The terms and conditions of this Rental Agreement shall control over any preprinted terms and conditions contained in Customer’s purchase order or similar documents and such other terms are hereby rejected by The Shedd.
22. CLASSACTION WAIVER
Customer agrees that any claims or proceedings brought by Customer relating to this Rental Agreement will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. Customer will not sue The Shedd as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against The Shedd. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
23. JURY WAIVER
The federal and state courts in the county in which the Facility is located shall have exclusive jurisdiction over all matters relating to this Rental Agreement. TRIAL BY JURY IS WAIVED. The Shedd shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.
24. OTHER PROVISIONS.
A. Any failure of The Shedd to insist upon strict performance by Customer of any terms and conditions of this Rental Agreement shall not be construed as a waiver of The Shedd’s right to demand strict compliance. Customer has carefully reviewed this Rental Agreement and waives any principle of law which would construe any provision hereof against The Shedd as the drafter of this Rental Agreement. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Rental Agreement.
B. Customer agrees to pay all reasonable costs of collection, court, attorneys’ fees and other expenses incurred by The Shedd in the collection of any amounts due under this Rental Agreement or in connection with the enforcement of its terms or in retaking possession of any Equipment.
C. Customer shall pay the rental charge(s) without any offsets, deductions or claims.
D. Customer consents to the collection, use, and disclosure of his or her personal identification and financial information as described herein. Customer’s personal identification and financial information is provided voluntarily and not as part of a credit card transaction. Personal identification information includes, for example, Customer’s name, billing address, zip code, telephone number, date of birth, driver’s license number, and email address. Financial information includes, for example, information related to any balances or invoices related to the Rental Agreement. Customer’s personal identification information can be used for purposes of this transaction, any subsequent transactions with The Shedd, and for The Shedd to evaluate and improve its products and services and/or develop new products or services. Customer’s personal identification information and/or financial information may be disclosed to contractors, service providers, and other third-parties that support The Shedd’s business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
E. The Shedd shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of: (i) permanent closure of the Facility; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government, or (iii)as otherwise set forth in this Rental Agreement.
F. Customer expressly acknowledges that Customer and The Shedd are the only parties to this Agreement.
G. For matters arising from this Rental Agreement, Customer authorizes The Shedd to verify and obtain through credit agencies or other sources Customer’s credit information.
H. A Cleaning Charge will apply to Equipment returned with excessive dirt, concrete and/or paint. There will be an additional charge for missing keys.
I. CRIMINAL WARNING: The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the Rental Period may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.
J. In the event that any provision of this Rental Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such invalid or unenforceable provision will not invalidate or affect the other provisions of this Rental Agreement which will remain in effect to be construed as if such provision were not a part hereof.
K. Any provisions of this Rental Agreement creating obligations that by their terms extend beyond the term of this Rental Agreement will survive the expiration or termination of this Rental Agreement, regardless of the reason for the termination.
L. This Rental Agreement and the relationship of the parties hereunder will be governed by and interpreted in accordance with the laws of the state in which the Facility is located, without regard to that state’s rules of conflicts of laws.
M. All payments, costs, expenses, charges and/or assessments that are due under or are to be made in accordance with this Rental Agreement shall be in U.S. dollars.
N. Any right and remedy belonging to The Shedd hereunder or under law shall be deemed cumulative and not exclusive of one another and the exercise by The Shedd of any such right or remedy shall not preclude The Shedd from exercising or enforcing any other right or remedy it may have.
O. The Shedd will not be liable in any manner for any delay or failure to perform its obligations hereunder that are beyond its reasonable control, including without limitation, any delay or failure due to strike, labor disputes, riots, earthquakes, storms, floods, or other extreme weather conditions, fires, explosion, acts of God, infectious disease pandemics, embargoes, war other outbreak of hostilities, terrorist activities, government acts or regulations, or the failure or inability of carriers, suppliers, delivery services, or telecommunications providers to provide services necessary to enable The Shedd to perform its obligations hereunder.