Terms and Conditions
Term and Conditions 1. Definitions. Agreement" means the Reservation Details, together with any associated Rental and Service Agreement, including these Rental and Service Terms which are incorporated by reference therein. "Customer" means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer. "Equipment" means any one or more of the items identified as rental items in the Reservation Details and any accessories, attachments or other similar items delivered to Customer including, but not limited to, air hoses, electric cords, blades, welding cables, liquid fuel tanks and nozzles. “Qualified Operator” means any individual who is permitted by Customer to operate the Vehicle. This includes individuals identified in the Rental and Service Agreement as additional QUALIFIED OPERATOR(S). All Qualified Operators must have a valid operator’s license to operate the Vehicles and/or Equipment. By operating the Vehicle, a Qualified Operator will be deemed jointly and severally responsible for Customer’s obligations related to the Vehicle and for any obligations that the Rental and Service Agreement imposes on a Qualified Operator of the Vehicle. “Rental and Service Agreement” means the agreement made between Customer and LANDMARK for LANDMARK to rent Equipment and/or provided Services, whether that Agreement is made in person at the Store Location, online, or at the time of Equipment delivery, and which incorporates by reference these Rental and Service Terms and which identifies the Equipment to be rented by Customer. The Agreement incorporates these Rental and Service Terms by reference. “Rental Period” means the period of time between the “Rental Out” and “Scheduled In,” set forth in the Rental and Service Agreement, except that the Rental Period may terminate earlier as provided in Sections 18 and 28 hereof or if Customer returns the Equipment earlier. “Credit Card” means the credit card provided by Customer as part of this Agreement or otherwise kept on file with LANDMARK. “Reservation Details” means the Equipment, Rental Period, delivery information, payment information and other information set forth on the Confirmation/Order Summary Screen or the Rental and Service Agreement, as the case may be. “Service” or “Services” means the services provided by LANDMARK in connection with the rental of Equipment, including Trench Services, Scaffolding Services, Portable Sanitation Services, Fluid Solutions Services, Power and HVAC Services and Tool Services (each as defined in Section 27 below). “Specialty Media” means specialty filtration materials purchased in connection with the rental of Equipment used for fluid solutions, such as sand, gravel, carbon, or other materials used to remove certain contaminants or other materials. "Store Location" means the LANDMARK address set forth in the Rental and Service Agreement. “Tanks” means the Equipment identified as rental items as part of the Fluid Solutions Services in which Customer stores materials. “LANDMARK” means LANDMARK Rentals (North America), Inc. “Vehicle” means a motor vehicle identified as the rental item(s) in a Rental and Service Agreement, reservation detail, or similar document; and “Vehicles” collectively refers to each such Vehicle. 2. Authority to sign; form contracts Any individual signing the Agreement represents and warrants that he or she is of legal age and has the authority and power to sign this Agreement on behalf of Customer. 3. Indemnity/ Hold harmless TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD LANDMARK, AND ANY OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES, 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 (A) INSTALLATION, OPERATION, USE, POSSESSION OR RENTAL OF THE EQUIPMENT, OR (B) ERRORS, OMISSIONS OR INACCURACIES IN THE DOCUMENTS OR OTHER INFORMATION PROVIDED BY CUSTOMER, OR OBTAINED FROM OTHERS, UPON WHICH LANDMARK RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST LANDMARK BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY LANDMARK FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF LANDMARK. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS 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 THE AGREEMENT. 4. Inspection of equipment Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer's needs. Customer further acknowledges that Customer has inspected the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or public road prior to taking possession thereof, and such propulsion tank contained no dyed fuel. Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues, and other devices and materials used to connect the Equipment to Customer's towing vehicle, if any. Customer acknowledges LANDMARK is not responsible for any damage to Customer's towing vehicle caused by detachable hitches or mirrors. With respect to the rental of Tanks, Customer shall take independent action to ensure that any materials Customer stores in the Tanks are chemically compatible with the Equipment. Customer shall provide LANDMARK with the safety data sheet (“SDS”) or verified laboratory tests that identify the material Customer stores in the Tanks. For Tanks subject to the West Virginia tank law, Customer agrees that Customer has received a copy of the Certificate to Operate for each Tank identified rented under this Agreement. 5. Limitation of liability In no event shall LANDMARK 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; (ii) LANDMARK's failure to deliver the Equipment as required hereunder or LANDMARK's failure to repair or replace non-working Equipment; or (iii) any incidental, consequential, punitive or special damages, even if so advised of the possibility of such damages. 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 LANDMARK and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment. 6. Customer responsibilities Customer shall provide LANDMARK with the information and the documentation LANDMARK requests to assess, plan, and perform the Services and/or provide the Equipment. All Equipment is provided and Services are performed based on information provided by Customer or others and LANDMARK is relying on the accuracy and completeness of such information in providing the Equipment and performing such Services. Customer recognizes that it is impossible for LANDMARK to assure the accuracy, completeness and sufficiency of information provided by others, either because it is impossible to verify, or because of errors or omissions that may have occurred in assembling such information. Customer is responsible for providing a secure and safe work environment for all parties, including LANDMARK and its employees, and for ensuring that the Services are carried out in compliance with applicable laws. 7A. Use of equipment Customer is familiar with the proper operation and use of each item of Equipment. Customer has selected the Equipment based on its requirements and will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, if required under any applicable law; or who is not qualified to operate it. Customer shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or other public road. In addition, Customer shall only use ultra-low-sulfur diesel fuel (“USLD”) in equipment with tier 5 engines. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD LANDMARK HARMLESS FROM ALL FINES, PENALTIES, DAMAGE TO EQUIPMENT AND ANY OTHER COSTS INCURRED BY LANDMARK DUE TO DYED FUEL BEING INTRODUCED INTO THE PROPULSION TANK OF SUCH VEHICLES. Customer agrees to: (i) check filters, oil, fluid levels and tire air pressure; (ii) clean and visually inspect the Equipment daily; and (iii) immediately cease using the Equipment and immediately notify LANDMARK if Equipment needs repair or maintenance. Customer acknowledges that LANDMARK has no responsibility to inspect the Equipment while it is in Customer's possession. LANDMARK shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason. 7B. Regulated materials If Customer intends to use the Equipment for the storage and handling of Regulated Materials (as defined herein), the following terms set forth in this Section shall apply. Definitions. “Regulated Materials” includes any material, substance or waste that falls into the following five categories: (i) “Hazardous Materials,” as defined or listed or regulated by any local, state, or federal government authority; (ii) “DOT Hazardous Materials,” as defined or identified as “hazardous material” by the Department of Transportation as set forth in 49 C.F.R. Parts 171 to 180; (iii) “Polychlorinated Biphenyls” or “PCBs,” meaning any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances which contains such substance, and which are regulated under the Toxic Substances Control Act and its implementing regulations found at 40 C.F.R. part 761; (iv) “Radioactive Materials,” identified by any local, state, or federal government authority as being radioactive; and (v) “Infectious Materials,” meaning any infectious substance, material, or waste that is defined, listed, or regulated by any local, state, or federal government authority. Tank Testing. Customer acknowledges that the Equipment may have contained Regulated Materials in the past. Customer may, at Customer's expense, test the Equipment for the presence of residual amounts of Regulated Materials prior to taking possession of the Equipment. In the event that residual amounts of Regulated Materials are detected in the Equipment by preliminary testing, Customer may notify LANDMARK and request new Equipment or Customer may terminate the rental. If Customer elects to continue use of the Equipment or elects not to test the Equipment, Customer will be bound by the terms set forth herein and waives any right to object to the presence of Regulated Material in the Equipment resulting from any prior use, and agrees that the Equipment is suitable for Customer’s intended use. Upon expiration or termination of the Rental Period, but before the Equipment is returned to LANDMARK, Customer shall, at Customer’s sole expense, remove all Regulated Materials from the Equipment and clean the Equipment to one of the following standards: (i) for Hazardous Substances: to the RCRA “empty” condition, as defined in 40 C.F.R. § 261.7(b)(3) (“RCRA Empty Condition”); or (ii) for DOT Hazardous Materials, PCBs, Radioactive Materials, or Infectious Materials: to Non-detect contamination levels (“NDCL”). Cleaning. Prior to return, Customer shall clean the Equipment in accordance with the following requirements: (i) Cleaning must be performed by an independent contractor acceptable to LANDMARK; (ii) it must be documented to LANDMARK’s satisfaction; (iii) When a NDCL is required, Equipment must be triple-rinsed using a solvent capable of removing Regulated Materials, then purged to remove any vapors. Equipment can also be cleaned by another method capable of achieving equivalent removal to a NDCL; (iv)For Radioactive Materials, cleaning must comply with cleaning procedures set forth in the U.S. Nuclear Regulatory Commission’s (“NRC”) Regulatory Guide 1.86 to achieve a NDCL; and (v) the independent contractor must certify that the cleaning meets the above specifications. Sampling. After cleaning, Customer will confirm the Equipment’s RCRA Empty Condition or NDCL, as applicable, by obtaining a professional written laboratory analysis of representative samples taken from various internal parts of the Equipment. Customer agrees the sampling must be: (i)performed by an independent contractor acceptable to LANDMARK; (ii) documented to LANDMARK’s satisfaction; (iii) taken from various internal parts of the Equipment including at a minimum, the floor, the underside of various crossbraces, and each wall (“Representative Samples”); (iv) conducted in the presence of and pursuant to the direction of a designated employee of Unite Customer agrees to contact LANDMARK to schedule an appointment for an employee of LANDMARK to witness the sampling not less than ten (10) business days prior to the termination of the rental term. For intermodal, roll-off, and vacuum container Equipment, in addition to the above requirements, Customer agrees that: (vi) Initially, 20% of the intermodal, roll-off, or vacuum container Equipment rented by Customer will be tested by the third-party laboratory. Based on satisfactory initial sampling results, and LANDMARK’s sole discretion, that figure may be reduced to 10%, random sampling; (vii) If liners are not used, or if any intermodal, roll-off or vacuum container Equipment fails the testing procedures outlined in Section 3(b), then 100% sampling of all intermodals, roll-offs or vacuum container equipment will be require Sample Analysis. Customer agree that the analysis of the sampling must: (i) be performed by a laboratory acceptable to Lessor that is certified to perform such analysis by the state in which the Equipment is located; (ii) be documented to Lessor’s satisfaction, and must include a record of the chain of custody for the Representative Samples; (iii) meet or exceed protocols established by the U.S. Environmental Protection Agency (“EPA”) or the NRC, as applicable. Return. Customer shall return the Equipment in a RCRA Empty Condition or NDCL in accordance with the terms set forth herein. If the Equipment does not meet the standard, Customer will undertake additional cleaning of Equipment, in accordance with all applicable law, to meet the standard, and will provide LANDMARK with written evidence of same. LANDMARK will not pick up the Equipment and Customer will continue to pay rental charges until the Equipment has been cleaned to the standards specified herein. In the event that Customer is unable to clean the Equipment in accordance with the terms set forth herein, Customer shall pay LANDMARK for the full replacement value of the Equipment, plus any applicable taxes. Customer agrees that in such event it assumes full ownership of and responsibility for the Equipment and any residual contents and all related liability for the management, transportation and disposal of such Equipment in accordance with all applicable laws. Customer agrees that it shall be the generator of any hazardous, solid, or radioactive waste generated as a result of Customer’s failure to return the Equipment in a RCRA Empty Condition or NDCL, and of any residual materials resulting from Customer’s attempt to clean the Equipment. Customer further agrees to indemnify, defend and hold LANDMARK harmless for any liability incurred by LANDMARK as a result of Customer’s breach of its obligations in this Section or as a result of LANDMARK being deemed a "generator" under applicable environmental laws. The foregoing indemnity obligation shall survive the termination or expiration of this Agreement. 8. Compliance with applicable laws Customer shall, at Customer's sole expense, comply with all applicable municipal, state, and federal laws, ordinances and regulations (including but not limited to those relating to worker safety or the environment), building and zoning codes, professional licenses, and licenses and permits which may apply to the use of the Equipment (“Licenses and Permits”). Licenses and Permits include, without limitation, the discharge of treated water, and disposal of waste or spent Specialty Media or other materials, and security, traffic control and road crossings associated with the use of the Equipment. Customer shall ensure that the Equipment at all times remains movable personal property. Customer shall not permit or allow the Equipment to be incorporated, attached or joined to any real or immovable property such that it causes the Equipment to be deemed a fixture. 9. Warranty/ Disclaimer of warranties LANDMARK WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD WORKING ORDER UPON DELIVERY AND THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LANDMARK MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT, SPECIALTY MEDIA, OR SERVICES AND MAKES NO WARRANTIES AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING THE PERFORMANCE OF ANY FILTRATION EQUIPMENT TO MEET ANY APPLICABLE REGULATORY STANDARD. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMER'S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS OR CONTAMINANTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE AGREEMENT, LANDMARK DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION. IN THE EVENT OF A BREACH OF THE ABOVE EQUIPMENT WARRANTY, LANDMARK SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR OR REPLACE THE EQUIPMENT. IN THE EVENT OF A BREACH OF THE ABOVE SERVICE WARRANTY, LANDMARK SHALL, AT ITS SOLE COST AND EXPENSE, RE-PERFORM THE SERVICE. 10. 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 LANDMARK. If such condition is the result of normal operation, LANDMARK will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. LANDMARK 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 Store Location within twenty-four (24) hours from the time of defect in order to terminate rental charges. 11. Return of equipment/ Damaged & lost equipment At the expiration of the Rental Period, Customer will return the Equipment to the Store Location during LANDMARK's regular business hours or if LANDMARK has agreed to pick up the Equipment, LANDMARK shall endeavor to pick up the Equipment within a commercially reasonable period of time after Customer notifies LANDMARK that the Equipment is called “off rent.” Customer is obligated to restore the Equipment to the same condition as when delivered, reasonable wear and tear (as defined below) excepted. Tanks shall be empty of all contents as required by any applicable federal, state or local regulation, including but not limited to those set forth in the Resource Conservation and Recovery Act (“RCRA”). Customer shall be responsible for all damages to or loss of the Equipment from the time the Equipment leaves the Store Location until the Equipment is either returned to the Store Location, including any damage during transit to or from Customer, or picked up by LANDMARK. In the case of the loss or destruction of any Equipment, or inability or failure to return same to LANDMARK for any reason whatsoever, Customer will pay LANDMARK the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay LANDMARK the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. LANDMARK shall be under no obligation to commence repair work until Customer has paid to LANDMARK the estimated cost therefor. Customer agrees that LANDMARK reserves the right 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. Disinfecting: During a widespread or global occurrence of an infectious disease, for Equipment handled by a person known or suspected to be infected or used in a known or suspected zone of infection including but not limited to permanent or temporary healthcare facilities and testing facilities, ambulance interiors, and biological laboratories, Customer shall disinfect the Equipment in accordance with the following requirements: (i) disinfection must be performed by an independent contractor acceptable to LANDMARK; (ii) it must be documented to LANDMARK’s satisfaction; (iii) in the event Customer is unable to disinfect in accordance the Equipment, LANDMARK will disinfect it and charge Customer for the costs incurred. 12. 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 on a one -shift basis (as defined in Section 14 below). The following shall not be considered reasonable wear and tear: (i) damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels; cavitation; or freezing; (ii) except where LANDMARK expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer's operation and maintenance manual; (iii) damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment; (iv) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (v) wear resulting from use in excess of shifts for which rented; and (vi) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry. 13. Late return Customer agrees that if the Equipment is not returned by the end of the Rental Period, or if the Tanks are not in RCRA Empty Condition ( as defined below) when LANDMARK comes to the Customer site to pick up the Tanks, LANDMARK, in its sole discretion, may require Customer to do any of the following: (A) continue to pay the rental rate(s) applicable to the Equipment as specified in the Agreement; (B) for periods less than 24 hours, pay the full daily rental rate applicable to the Equipment; (C) pay any increased rental rate(s) in effect at the time of, or after, the expiration of the Rental Period; or (D) assess a pickup charge if the Tanks are not in RCRA Empty Condition. Customer agrees that LANDMARK reserves the right 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. 14. Rental period/ Calculation of charges Rental charges commence when the Equipment leaves the Store Location and end when the Equipment is either returned to the Store Location during LANDMARK’s regular business hours or picked up by LANDMARK after Customer notifies LANDMARK that the Equipment is “off rent” and obtains an “off rent” confirmation number from LANDMARK. Pick-up and delivery by LANDMARK is subject to a “Delivery and Pick-up Service Charge,” the amount(s) of which are disclosed on the Rental and Service Agreement. Notwithstanding anything to the contrary in the preceding sentence, for the rental of Tanks, the rental period continues until Customer has emptied the Tanks of all contents and cleaned the Tanks in accordance with all applicable regulations, including but not limited to RCRA (“RCRA Empty Condition”) and any equivalent state clean-up laws. Rental charges do not include the cost of the Refueling Service Charge, any applicable Taxes (as defined below), the Delivery and Pickup Service Charge, transportation surcharges, the cost of the Environmental Service Charge or other miscellaneous charges, the amount(s) of which are disclosed on the Rental and Service Agreement. Additionally, LANDMARK shall invoice Customer for any additional excess cleaning or repair costs, including: (i) removal of any alterations made by Customer to the Equipment; (ii) restoration of the Equipment to its original configuration; (iii) re-lining or re-painting of Tanks; (iv) disposal of any contents left in Tanks; or (v) transportation to and from an approved repair facility. As set forth herein, “Taxes” shall mean sales tax, goods and services tax, property taxes (including, without limitation, the Estimated Personal Property Tax Reimbursement Charge) or other taxes, levies and assessments required to be collected by LANDMARK from Customer at any time upon, or in respect of, the Equipment and/or this Agreement. Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are for normal “one-shift” usage based on an eight (8) hours per day, 40 hours per week and 160 hours per four-week period. On power equipment, operations in excess of one shift will be as follows: one and one-half times the rental charge for double shift and two times the rental charge for triple shift. Customer will truthfully and accurately certify to LANDMARK the number of shifts the Equipment was operated. 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 the Agreement. TIME IS OF THE ESSENCE OF THE AGREEMENT. 15. Refueling service charge Customer acknowledges that a “Refueling Service Charge” will be applied to all Equipment not returned with a full tank of fuel. The exact cost of the Refueling Service Charge may vary depending on the rate being charged by the Store Location on the date Customer returns the Equipment. Customer acknowledges that the Refueling Service Charge is not a retail sale of fuel. Customer may avoid the Refueling Service Charge if Customer returns the Equipment with a full tank of fuel. 16. Environmental service charge Due to the hazardous nature of some waste and other products, to comply with federal and state environmental regulations, and to promote a clean environment, LANDMARK charges an Environmental Service Charge for certain rentals. The Environmental Service Charge is not a government-mandated charge, is not designated for any particular use, and is used at LANDMARK’s discretion. The Environmental Service Charge is 2.00% of the service charge and will not exceed $99. Customer acknowledges the items indicated above are subject to the Environmental Service Charge and Customer agrees to pay that Charge. 17. Deposit & payment A. DEPOSIT: In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms of this Agreement to be performed by Customer. In the event of any breach by Customer, the deposit will be credited against any damages, cost or expense incurred by LANDMARK as a result of the breach. B. PAYMENT: All amounts due hereunder shall be payable in full upon receipt of invoice by Customer. Customer acknowledges that timely payment of rental and service charges is essential to LANDMARK's business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and LANDMARK agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of two percent (2%) per month (24% per annum) on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law. Rental rates do not include sales tax, goods and services tax or other taxes, levies and assessments required to be collected by LANDMARK from Customer at any time upon, or in respect of, the Equipment and/or the Agreement (collectively, “Taxes”). Customer agrees that LANDMARK reserves the right 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 or Taxes. In the event Customer asserts that a transaction is exempt from Taxes, Customer agrees to provide a valid tax exemption certificate. Should the transaction later be deemed taxable, Customer is obligated to reimburse LANDMARK for any Tax assessed that was attributable to Customer. 18. Title/ No purchase option/ No liens With the exception of Specialty Media, the Agreement is not a contract of sale, and title to the Equipment shall at all times remain with LANDMARK. Unless covered by a specific supplemental agreement signed by LANDMARK, 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. 19. Tire and tube repair or replacement Repair or replacement of tires and tubes on Equipment is the responsibility of Customer and is not included in the rental rate. 20. Default Customer shall be deemed in default should Customer fail to pay any amount when due hereunder; fail to perform, observe or keep any provision of the Agreement; become “Insolvent” (as defined herein), or should LANDMARK anticipate that Customer may become Insolvent; or otherwise be in default. If Customer is in default, LANDMARK may do any one or more of the following: (i) terminate the Rental Period; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (iii) cause LANDMARK’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 repossession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by LANDMARK in retaking and repossessing the Equipment; or (iv) pursue any other remedies available by law. Customer shall be considered “Insolvent” if Customer shall generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; make an assignment for the benefit of creditors, or petition or apply to any court or tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; 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; 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 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. 21. Customer's insurance coverage Customer agrees to maintain and carry, at Customer’s sole cost, the following insurance: (i) commercial auto liability insurance with at least a per occurrence limit of $2 million; (ii) commercial general liability insurance (providing coverage equal to or greater than the standard ISO CG 00 01 12 04 form) with limits of insurance not less than $2 million per occurrence and $4 million in the aggregate; and (iii) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment. Customer shall obtain insurance policies that provide, or are endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by LANDMARK. LANDMARK shall be named as an additional insured for liability insurance and, if applicable, additional loss payee for property insurance. Any deductibles or self-insured retentions shall be the sole responsibility of the Customer. All insurance required by the Agreement shall include a waiver of rights of recovery against LANDMARK or its insurers by the Customer and its insurers, as well as a waiver of subrogation against LANDMARK or its insurers. The policies required hereunder shall provide that LANDMARK must receive not less than 90 days’ notice prior to any cancellation. FOR RENTAL OF EQUIPMENT NOT LICENSED FOR ROAD USE, CUSTOMER MUST EITHER ELECT TO NAME LANDMARK AS LOSS PAYEE EVIDENCING PROPERTY INSURANCE COVERAGE OR ELECT TO PURCHASE THE RENTAL PROTECTION PLAN. 22. No assignment, lending or subletting Customer shall not sublease, sub rent, assign or loan the Equipment without first obtaining the written consent of LANDMARK, and any such action by Customer, without LANDMARK’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth in the Agreement unless LANDMARK approves otherwise in writing. LANDMARK may at any time, without notice to Customer, transfer or assign the Agreement or any Equipment or any moneys or other benefits due or to become due hereunder. 23. Entire agreement/ Only agreement These terms and conditions and the front the Agreement, and any Addendum attached thereto, represent the entire agreement between Customer and LANDMARK with respect to the Equipment and the rental and servicing of the Equipment. There are no oral or other representations or agreements not included herein. None of LANDMARK's rights or Customer's rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by both LANDMARK and Customer. Any use of Customer's purchase order number on this Agreement is for Customer's convenience only. 24. Order of precedence These terms and conditions and the Agreement shall control over any terms and conditions contained in Customer’s purchase order or similar documents and such other terms are hereby rejected by LANDMARK. In the event that LANDMARK signs Customer’s purchase order or similar document, such signature shall be solely for the purpose of acknowledging the order; it being the express intent of the parties that the Agreement and these terms and conditions shall govern all rental and service transactions. 25. Class action waiver Customer agrees that any claims or proceedings brought by Customer relating to this 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 LANDMARK 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 LANDMARK. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff. 26. Jury waiver Customer submits hereby to the Jurisdiction of the courts of NY and Oswego County NY and agrees that they shall have exclusive jurisdiction over all matters relating to this Agreement. TRIAL BY JURY IS WAIVED. In order to effect service of process on LANDMARK, please contact the Secretary of State Corporations Division or the equivalent office in your state to obtain the name of the registered agent and the registered office address that is on file with the Secretary of State for LANDMARK. LANDMARK shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available. 27. Other provisions Any failure of LANDMARK to insist upon strict performance by Customer of any terms and conditions of this Agreement shall not be construed as a waiver of LANDMARK's right to demand strict compliance. Customer has carefully reviewed this Agreement and waives any principle of law which would construe any provision hereof against LANDMARK as the drafter of this 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 Agreement. Customer agrees to pay all reasonable costs of collection, court costs, attorneys' fees and other expenses incurred by LANDMARK in the collection of any charges due under this Agreement or in connection with the enforcement of its terms. Customer shall pay the rental charges without any offsets, deductions or claims. Customer consents to the collection, use and disclosure of his or her personal identification and financial information as described herein and in LANDMARK’s Privacy Policy. 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 Agreement. Customer’s personal identification information can be used for purposes of this transaction, any subsequent transactions with LANDMARK and for LANDMARK 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 LANDMARK’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. LANDMARK shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of (i) permanent closure of the Store Location; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government; or (iii) as otherwise set forth in this Agreement. 28. 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. 29. GPS tracking Customer and LANDMARK each consent to the collection and monitoring of electronic information, including Global Positioning System (“GPS”) data, generated by or in connection with Customer’s use of or the location of the Equipment. Customer agrees that LANDMARK owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes. 30. Force Majeure Neither party shall be liable to the other party for failure to comply with the terms of the Rental and Service Agreement or performance of its obligations hereunder to the extent such failure has been caused by Force Majeure, provided that the non-performing party shall give notice to the other party as soon as commercially possible and shall exercise reasonable efforts to resume performance. For the purposes of the Rental and Service Agreement, “Force Majeure” shall mean fire, war, insurrection, act of terrorism, riots, flood, hurricane, typhoon, earthquake, tornado, mudslide, tsunami, and any other natural disaster, pandemic or other causes beyond the reasonable control and not due to the fault of the non-performing party.
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