Terms and Conditions

TERMS AND CONDITIONS APPLICABLE TO ALL PURCHASES AND RENTALS:

1. Receipt and Inspection of Equipment. Customer (i) acknowledges receipt of the personal property described on the front of this Agreement ("Equipment") from Hawkins-Graves, Inc. ("Company") (ii) agrees Equipment was inspected by Customer and that it was in good condition without damage or faults, that its fuel tanks were full and in the case of Equipment registered for use on public roads, contained no dyed fuel, and that it was suitable for Customer's intended uses; and (iii) agrees Equipment was delivered with all necessary reasonable safety decals, and operating manuals. Customer acknowledged it has received and reviewed all information necessary to safely operate Equipment.
2. Credit Card Authorizations. Customer authorizes Hawkins-Graves, Inc. to, and appoints it as Customer's true and lawful agent to, charge the credit card(s) and/or debit card(s) Customer provided for all amounts owed under this Agreement. Such authorization shall be continuing and shall not be rescinded by Customer until all amounts owed are paid. Customer agrees any attempt to rescind this authorization prior to Hawkins-Graves, Inc. being fully paid shall be void and without effect. This authorization includes the right of Hawkins-Graves, Inc. to reinitiate charges to Customer's card(s) that are dishonored for any reason.
3. Limitation of Warranties. The parties agree that Company is not the manufacturer of Equipment, nor is it the agent of the manufacturer, and that no warranty is given against evident or hidden defects in Equipment. Company shall not be liable to Customer for any losses or damages of any kind resulting from defects or inefficiency of Equipment or its breakage. CUSTOMER WAIVES ANY AND ALL CLAIMS OF CONSEQUENTIAL DAMAGES ARISING FROM EQUIPMENT OR ITS USE. CUSTOMER HEREBY PURCHASES OR LEASES EQUIPMENT WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, UNLESS THEY APPEAR IN WRITING SIGNED BY THE COMPANY. THERE ARE NO IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE SALE OR LEASE OF THE EQUIPMENT, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED BY COMPANY AND WAIVED BY CUSTOMER. WARRANTIES ON NEW EQUIPMENT ARE LIMITED TO THOSE EXTENDED BY THE EQUIPMENT MANUFACTURER, IF ANY; COPIES OF SUCH WARRANTIES ARE AVAILABLE UPON REQUEST. ALL USED EQUIPMENT IS SOLD "AS IS, WHERE IS."
4. Indemnification. CUSTOMER AGREES TO DEFEND, INDEMNIFY & HOLD HARMLESS COMPANY, AND ITS OFFICERS, DIRECTORS EMPLOYEES AND INSURERS, AGAINST ALL LOSSES, DAMAGES, CLAIMS, CAUSES OF ACTION, EXPENSES, AND PENALTIES (INCLUDING COURT COSTS, ATTORNEY'S FEES, AND OPINION WITNESS' FEES) ARISING ON ACCOUNT OF ANY INJURY OR DEATH TO ANY PERSON (INCLUDING ANY CUSTOMER AND/OR COMPANY EMPLOYEES) OR DAMAGE TO ANY PROPERTY CAUSED IN WHOLE OR IN PART BY EQUIPMENT, OR ITS CONDITION, OPERATION OR TRANSPORTATION, AND/OR ANY NEGLIGENT ACT/OMISSION OF CUSTOMER OR ANY OF ITS EMPLOYEES, REGARDLESS OF WHETHER COMPANY IS FOUND TO BE JOINTLY LIABLE FOR SUCH DEATH, INJURY OR DAMAGE, AND FURTHER REGARDLESS OF WHETHER ANY OF THE FOREGOING LIABILITY ARISES AT LAW, IN EQUITY, OR BY STATUTE, INCLUDING STRICT LIABILITY.
5. Risk of Loss; Insurance. Except as otherwise specifically stated otherwise herein, Customer assumes and bears the entire risk of loss, theft, or damage of or to Equipment or any piece thereof, regardless of cause, whether or not the loss, theft, or damage is covered by insurance and regardless of any deductibles that may have to be paid. Customer is responsible for maintaining liability and physical damage insurance on Equipment as provided herein (i) during the rental period or (ii) in the event of a purchase financed by Company, until Equipment is paid in full. Customer shall insure against the loss or destruction of Equipment in the amount of its full replacement list value. Customer shall purchase and maintain insurance of the following types of coverage and limits of liability: (i) Commercial General Liability (CGL) with limits of insurance of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate (Company shall be included as additional insured on the CGL policy, using ISO Additional Insured Endorsement CG2010 0704 and CG2037 0704 or an endorsement providing equivalent coverage to additional insured; insurance for the additional insured shall be as broad as the coverage provided for the named insured. The policy shall apply as primary insurance before any other insurance, including any deductible available to the additional insured, and shall include a waiver of subrogation in favor of Company); (ii) Commercial Umbrella policy with limits of lot less than $1,000,000; (iii) Contractors Equipment Coverage policy with damage and loss limits equal to or exceeding the value of Equipment (Company shall be included as loss payee with respects to the Equipment); (iv) Business Auto Liability policy with limits of at least $1,000,000 for each accident (Business Auto coverage must include coverage for liability, arising out of all owned, leased, hired and non-owned automobiles); and (v) Workers Compensation and Employers Liability Insurance with limits of at least $100,000 each accident for bodily injury by accident, $500,000 for injury by disease, and $100,000 for each employee for bodily injury by disease. Customer shall provide Company a certificate evidencing such coverage and endorsed that the coverage will not be canceled or changed without the provider endeavoring to provide the Company 30 days' prior written notice. Customer hereby appoints Company as its attorney-in-fact with power and authority to do all things required under any such policy, including but not limited to making claims, receiving payments and executing and endorsing all documents, checks, or drafts.
6. Payment and Default. Customer shall pay Company all amounts due, without offset as follows: (i) Customer shall pay rental charges in advance, or, with prior agreement of Company, immediately upon return of Equipment, and (ii) unless stated otherwise on the Rental Order, Customer shall pay all other charges (e.g. repair, fluids, etc.) upon Customer's receipt of invoice. Customer shall pay all taxes arising as a result of its purchase or rental of Equipment. Taxes are not included in prices quoted for Equipment. Any amount due Company not paid when due shall accrue interest at the rate of 2% per month until paid. In the event Company takes any action to enforce its rights under this Agreement, Customer agrees to pay Company's attorney's fees, opinion witness' fees, and court costs incurred in enforcing this Agreement, which costs may, at the option of Company, be represented as a percentage equal to 33 percent of all amounts due. Customer agrees venue for any such action shall be in the state courts located in Lynchburg or Campbell County, Virginia, at Company's discretion. CUSTOMER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY. In addition to Customer's failure to timely pay amounts due, the following shall be considered events of default: if Customer fails to perform any obligations of this Agreement, if Customer or any guarantor becomes subject to any insolvency, bankruptcy, or similar proceeding, if there is a material adverse change in Customer's or Guarantor's financial condition, or if any representation or warranty by Customer (including financial information) is untrue or breached, or if any guarantor dies or attempts to revoke a guaranty. Upon the occurrence of a default, Company may, in addition to its other rights or remedies available in law or equity: (i) terminate this Agreement and any other agreements between Company and Customer or its affiliates, (ii) declare the full balance of rent, charges, and other amounts due immediately due and payable, or (iii) repossess the Equipment, wherever located, without notice, demand, or court order Customer hereby grants Company a security interest in any purchased Equipment, until paid for in full and authorizes Company to file financing statements perfecting the security interest. In any action by Customer against Company, Company's maximum liability to Customer shall be limited to the amount Customer paid Company for Equipment, whether in rent or purchase money. In the event Customer fails to pay when due any invoice for a weekly or monthly rental, the rental rate for the Equipment shall revert to the daily rate and the Customer shall be responsible for paying rent for the Equipment as if the original lease had been at the daily rate. Customer agrees that such increased rate is a reasonable estimate of the damages Company will sustain by Customer's failure to timely pay amounts due.
7. Loading of Equipment onto Customer Vehicles. Customer is solely responsible for loading and unloading Equipment to and from Customer's trucks or trailers. Customer assumes all liability for damage to Customer's trucks or trailers and for injury or death to persons resulting from loading or unloading operations, even if caused by Company's employees, and Customer further agrees to indemnity, defend, and hold Company harmless from any such damage, injury or death.
8. No Damages for Delay. Company shall not be responsible for delays in delivery of Equipment. Under no circumstances shall Company be liable to Customer for loss of use of Equipment or its down-time, lost profits, or from any damages resulting therefrom.
9. Safety. Standards. Company makes no representations or certifications expressed or implied concerning compliance of Equipment with OSHA, MSHA, or other occupational safety standards. Compliance with OSHA or other occupational safety standards applicable to the operation, use, and maintenance of Equipment is the sole responsibility of the Customer. Customer agrees to make no modification to any safety systems or features, including decals, of Equipment.
10. Entire Agreement. This Agreement, any credit application and any personal guaranty is the entire agreement between Customer and Company with regard to the Equipment and its use. No verbal agreement exists, and Customer agrees Company has made no verbal representations or warranties about the Equipment. This Agreement may only be modified in a writing signed by Company. Customer may not assign this Agreement or any of its rights hereunder.
11. Miscellaneous. Any failure of Company to insist on Customer's strict compliance with this Agreement shall not be treated as a waiver of Company's right enforce each provision hereof. If more than one person or entity is named as renter on the Rental Order, the liability of each shall be joint and several. A copy or fax of this Agreement shall be admissible in court as an original.

ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO RENTALS:

12. Rental Period. Rent begins when Equipment leaves the Company's property and ends when Equipment is returned to the Company's property in the condition required herein during normal business hours. Rental rates are based on Equipment being used 8 hours per day, 40 hours per week, and 160 hours per 28-day period. Use in excess of these amounts will be charged at an hourly rate equal to: 1/8th of the daily rate for daily rentals. 1/40th of the weekly rale for weekly rentals, 1/160th of the 28 day rate for 28 day rentals. In the event Company establishes a "Due In" time for Equipment and Customer does not return Equipment when due, Company may revert weekly and month rentals to the daily rental rate from the "Due In" time forward. Customer agrees that such increased rate is a reasonable estimate of the damages Company will sustain by Customer's failure to timely return the Equipment.
13. Title. Title to Equipment is and at all times shall remain in Company. Customer will give Company immediate notice of any levy attempted upon Equipment, or if Equipment becomes liable to seizure, and will defend indemnify and hold harmless Company against all loss and damages caused by such action. Unless the Company and Customer have entered into a separate written Rent to Purchase Agreement, Customer has no option to purchase Equipment.
14. Usage; Maintenance. Customer shall not permit Equipment to be used by any person or entity other than Customer. nor will Customer allow Equipment to be used at any location other than the location designated on the front of this Agreement. Unless instructed otherwise in writing by Company, Customer shall maintain Equipment in keeping with the recommendations of Equipment's manufacturer. Customer shall keep Equipment in clean, maintained, and good working order. On a daily basis and after each transportation of Equipment, Customer shall visually inspect Equipment for damage or defects and check tire air pressure, all fluid levels, and all points or lubrication. Customer shall immediately, at Customer's expense, correct any deficiencies noted during such inspection. Tire plugs are not permitted on Equipment. Customer shall not use Equipment for any illegal purposes or in an illegal manner or use Equipment for any purpose other than its intended purposes. Unless otherwise stated on the Rental Order, "intended purposes" do not include flood debris removal, stream channelization, or use in water, swampy conditions, or marine environments such as beaches. Customer shall ensure Equipment is operated in full compliance with all OSHA, MNSH and other applicable safety standards.
15. Damaged - Malfunctioning Equipment. If Equipment is damaged or becomes unsafe or in a state of disrepair, Customer agrees to: (i) immediately discontinue its use; (ii) immediately notify the Company; and (iii) await further instruction from Company before allowing further operation of Equipment. In the event Equipment malfunctions through no fault of Customer, Company has the options of repairing Equipment, or asking Customer to return Equipment in termination of further rent obligations, either as Customer's sole remedy for such malfunction. Company has no obligation to repair Equipment damaged by Customer's misuse, failure to maintain, abuse, neglect, or accident.
16. Return of Equipment. At termination of the rental period, Customer shall promptly return Equipment to Company's place of business in clean condition with all fluid tanks, including fuel full (dye free in the event of fuel for Equipment registered for use on public roads). It is to be in the same condition as it was received, ordinary wear and tear, as determined by Company in its sole discretion, excepted. Customer agrees to pay Company the full costs of repairing any damage to Equipment (at the labor rates posted in Company's office) and of replacing lost parts or attachments that occurred during the rental period. Customer shall be responsible for repair or replacement of any tires, tubes, or rubber tracks damaged while Equipment during the rental period. In the event Equipment is returned unclean, per Company's determination, or with fluid tanks not properly full, Customer shall pay for cleaning of Equipment and/or filling of fluid tanks, as the case may be. In the event any Equipment is returned damaged, rent shall continue to accrue until Equipment is repaired and made available for rent. In the event Customer does not return Equipment or Equipment is lost, stolen, or destroyed, Customer shall pay Company for the full replacement list value of Equipment together with the full rental rate for Equipment until it is replaced and put back into rental inventory by the Company. Company may notify the Customer, verbally or in writing, of a new or revised "Due in" time at any time. Customer will not retain Equipment beyond any "Due in" time established by Company, without prior notice to and written consent of Company. Company may report Equipment stolen if not returned when due. This Agreement shall be deemed a close-ended lease.