Terms and conditions | Holland Pump
HOLLAND PUMP COMPANY AND AFFILIATES TERMS & CONDITIONS FOR RENTALS AND SALES
These terms and conditions for service (“Terms”), along with any conditions expressly incorporated in the Quotation, will govern any rental or sale of service by Holland Pump Company and Affiliates (“Lessor”) to Customer (“Lessee”) (collectively, the “Parties”). These Terms, including any applicable conditions in the Quotation, (collectively, the “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. If the Parties have entered into a Master Services Agreement (a “MSA”), the Order shall be governed by the terms of such MSA. In case of discrepancy between the Agreement documents, they shall be applied in the following order: (a) the MSA (if any); (b) these Terms. Lessee desires to enter into this Agreement with Lessor, a pump and accessory supplier, for the performance of services and/or purchase or lease goods, equipment, materials, tools, property, or supplies. This Agreement shall control and govern any and all (c) services (including the goods, equipment, materials, tools, property or supplies necessary for the services) performed by Provider for Customer (the “Services”), and/or (d) the lease of equipment, tools, or property by Lessor from Lessee. The Services performed and the rentals provided (collectively, the “Rentals”) will be as requested by Lessee and will be defined by separate work orders or purchase orders (either oral or written) (collectively, “Order”). This Agreement does not obligate Lessee to issue any Order to Lessor or accept Lessor’s offers in response to a request to provide Rentals, nor does it obligate Lessor to accept an Order from Lessee, but this Agreement shall govern and be deemed to be incorporated in full in every Order accepted and agreed to by the parties. Lessee shall be deemed to accept these terms and conditions upon acceptance of the Order or upon acceptance of delivery of the Rentals. The Terms of this Agreement shall take precedence over any conflicting or similar terms and conditions in any Order or other document, unless the parties expressly state, in writing, the intent to amend the terms and conditions of this Agreement.
1) QUOTATION: “Quotation” means the Lessor’s offer to Lessee for the proposed Rental. Lessor’s quotation is valid for 30 days unless otherwise specified. Changes in specifications requested by Lessee are subject to approval in writing by Lessor. In the event such changes are approved, the price for Equipment and the delivery schedule shall be changed to reflect such changes. All drawings are the property of Lessor. Lessor does not supply detailed or shop working drawings of Equipment; however, Lessor will supply necessary installation drawings when required. Drawings and illustrations submitted with Lessor’s quotation show general type, arrangement and approximate dimensions of Equipment to be furnished and are for Lessee’s information only and Provider makes no representation or warranty regarding their accuracy. Unless expressly stated to the contrary within the quotation or sales form, all drawings, illustrations, specifications or diagrams form no part of this Contract. Where Lessor has design responsibility, Lessor reserves the right to alter such details in design or arrangement of Equipment which, in its judgment, constitute an improvement in construction, application, or operation. All engineering information necessary for installation of Equipment shall be forwarded by Lessor to Lessee upon Lessee’s acceptance of this Contract. After Lessee’s acceptance of this Contract,
2) any changes in the type of goods, the arrangement of Equipment, or application of Equipment requested by Lessee will be made at Lessee’s expense. (e) The Equipment is offered subject to it being available to Lessor when Lessee’s acceptance of the Contract is received by Lessor. (f) This quotation is Lessor’s estimate of equipment and material required. Actual installation may vary in cost due to site requirements. Additional equipment or time to set-up will be charged at the itemized rates herein or based upon Lessor’s published rental rate schedule.
3) APPLICATION DATA: At a minimum, the Lessee is to provide the Lessor’s Pump Consultant with the desired duty points (or information, i.e., (Soil Geology, etc.) to determine the actual duty points) for the pump system including a description of the application requirements and estimate of flow rate, particle size, and solids content. Lessee understands that operating the pumps and accessories outside of the operating range may result in damage to the pump and could result in injury to personnel.
4) HIDDEN CONDITIONS: Where applicable, the Lessee will pay the Lessor for any additional installation expenses related to “hidden conditions” including, but not limited to, rock formations, boulders, hard pan, poor permeability, gas lines, electrical conduit, drainpipes, or any other obstructions.
5) SUITABILITY: Although Lessor promises to provide consultation and to make a recommendation based on the information provided by the customer and from subsequent review, the customer assumes any and all risk associated with the uses of Lessor products including the suitability of the products for their application. Lessee agrees that it has determined the suitability of the Equipment for Lessee’s intended use based upon its own judgment and disclaims any reliance upon any statements or representations made by Lessor. Lessor will permit Lessee to inspect the Equipment at the time of delivery to Lessee, or at the time the well point installation by Lessor, if applicable, is complete. Unless Lessee notifies Lessor at the time of completed delivery or wellpoint installation that the Equipment, or the wellpoint installation, is not in conformity with this Contract, Lessee shall be deemed to have accepted the Equipment in its “AS IS” condition, or, in case of any wellpoint installation, as installed by Lessor’s personnel. LESSOR MAKES NO WARRANTY WITH RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED, AND LESSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, THE OPERATION OF, THE MALFUNCTION OF, OR THE INABILITY TO USE THE EQUIPMENT OR WITH RESPECT TO ANY WELLPOINT INSTALLATION.
6) LOSS DAMAGE WAIVER: (referred to as “LDW”) is an agreement between Lessee and Lessor where under Lessor will not hold Lessee responsible for certain causes of damage to Equipment leased by Lessee under this Contract. A LDW IS NOT INSURANCE; however, it relieves Lessee of the obligation to purchase physical damage insurance as set forth in Paragraph 6 of the terms and conditions of this Contract. Lessee understands that this LDW (a) has: a $1000.00 deductible which the Lessee must pay in the event of any damage, (b) covers only risks of direct physical loss, (c) is subject to exclusions, as set forth in the Lessor’s LDW terms and conditions, which Lessee acknowledges receiving, (d) Lessee will be charged an LDW fee of 14% of the total rental due for the entire term of this Contract (e) The LDW is available at all Holland Pump and affiliate locations.
7) ALL-RISK INSURANCE: Unless Lessee has elected to accept the Loss Damage Waiver option above, and has paid Lessor the consideration for such waiver, Lessee will maintain all risk insurance on all the leased Equipment for its full insurable value, with loss payable to Lessor and Lessee as their interest may appear. Lessee agrees to pay Lessor for any damages suffered by Lessor due to any loss including fire, flood, theft, pilferage, or vandalism to the Equipment which occurs during the rental term, except to the extent that the Loss Damage Waiver is in effect and compensates the Lessor for the loss suffered by Lessor. At Lessor’s request the Lessee will deliver to lessor policies or certificates of insurance evidencing such coverage with loss payable to lessor and lessee as their interests may appear, all proceeds to be applied first to the payment of lessee’s obligations to lessor under this Contract.
8) NOTICE TO OWNER: It is expressly understood by Lessee that Lessor shall at it’s discretion file a Notice to Owner or equivalent filing to protect the Lessor’s lien rights.
9) FORCE MAJUERE: Lessor will incur no liability to Lessee for any delay or failure by Provider to perform any of its obligations under the Order because of act of God (including, but not limited to, fire, tornado, tropical storm, hurricane, natural disaster, or other weather event); strike; power failure; delay in delivery of materials, component parts and supplies caused by acts of God, any third party, customs or marine freight; delay or failure by any shipping, trucking, or any other means of third party transportation; accident; theft; governmental action; civil disturbance; or any other cause beyond Lessor’s control. The time for performance by Provider of any of its obligations, including delivery of Rentals, will be extended by any delay caused by any of the foregoing.
10) READY TO RENT: The Lessor shall use reasonable care to see that rotating equipment is in proper “ready to rent” working condition before shipment to Lessee. For diesel and electric driven pumps, vacuum readings are taken prior to and following. Any significant decrease in vacuum will be at the discretion of Lessor repaired and billed to Lessee.
11) CONTRACT: The Contract may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Contract. The Contract (including any Amendment hereto) sets forth the entire understanding between the parties, and all prior representations and negotiations are merged herein.
12) RENT TO OWN: Unless specifically agreed to prior to creating the contract, no rental contract is a Rent to Own/ Rental Purchase Contract. No rental payments will be applied to Equipment purchase. In the event Lessee does not have a Rent To Own/Rental Purchase contract but wishes to purchase any or all of the items listed herein, Lessee shall at Lessor’s discretion have the option to do so. All rental equipment is sold at prevailing purchase price exclusive of all rental charges. Any purchase of leased equipment is subject to credit approval of such transaction by Lessor.
13) TERM: Unless otherwise specified in Lessor’s Quotation or Agreement, for all Houston (TX), Austin (TX), Albany (NY), Allentown (PA), Trevose (PA), and Jessup (MD) rentals, (a) Rental Day: One Calendar Day; not exceeding twelve (12) hours running, (b) Rental Week: Seven (7) calendar days; not exceeding 84 hours running in aggregate during a Rental Week, (c) Rental Month: Twenty-eight (28) calendar days; not exceeding 336 hours running, (d) Standby Rate: The Standby Rate is 75% of the scheduled rate. Standby is for an additional back-up pump to be run in the event the primary pump cannot. If the standby pump operates for any reason other than failure of a primary pump, the standard rate will apply, (e) Overtime Running: For diesel units, all scheduled rates are based on a 12 hour per day shift (84 hours per week). If Rentals are used for a double shift, the 12-hour rate will be multiplied by 2 times the schedule rate], (f) Off Rent: It is the responsibility of the Lessee to call or email the Lessor and obtain an Off Rent Confirmation. IMPORTANT: Obtaining an Off Rent Confirmation with Pickup Control # does not release Lessee from its obligations to safeguard and secure Rentals, including maintaining required insurance coverages, while Rentals remains under Lessee’s care, custody or control pending return of all Rentals to Lessor. Lessee shall remain responsible for all loss or damage, including rents owed through the end of the rental period or the Rental is repaired or replaced, arising from Lessee’s failure to safeguard and secure Rental while awaiting pickup.
14) TERM STANDARD: for all other rental branch locations and unless otherwise noted, the rental cycle is defined as 4 weeks (28 days). A week is defined as 33.334% of the 4-week rate. A day is defined as 33.334% of the weekly rate. One calendar day allows 24 hours of pumping. Lessee will be invoiced at the appropriate 4 Week, Weekly, or Daily Rate. Rental lasting more than 28 days shall be billed in the same manner as the first 28 day period.
15) OVERTIME: Overtime is billed at 1.5 times the published rate for deliveries, pickups, trouble calls, etc. outside of normal working weekday hours 7:30 AM – 4:30 PM. Overtime on weekends and Holidays will be billed at 2 times the aforementioned published rate. Unless otherwise stated under the Contract Notes section above or in an Amendment hereto, the overtime charges which are due and payable by Lessee are determined as set forth in the Schedule of Lessee Charges. Lessor may elect to provide a custom overtime rate to Lessee, which is set forth in the Contract Notes above or in a separate writing duly executed by Lessor and Lessee which specifically references this Contract and the overtime charges hereunder and is incorporated herein by reference.
16) ENVIRONMENTAL CHARGE: The items indicated above are subject to a 2% environmental charge which is designed to recover Lessor’s direct and indirect expenses for the handling, managing, and disposal of waste products, hazardous products, and related administrative costs. This is not a government-mandated charge.
17) FUEL: It is Lessor’s policy to deliver power units with ½ tank of fuel. It is the Lessee’s responsibility to return the power unit (i.e., pump) with ½ tank of fuel. In the event, the power unit is returned with less than ½ a tank of fuel, the final bill will contain a fuel charge equivalent to the value of the fuel at Lessor’s current list price.
18) FUEL SURCHARGE: Lessor shall have the right to apply a fuel surcharge to reflect the increases in the prices of fuel in accordance with current operating practice.
19) AMENDMENT: An “Amendment” has that term is used in this Contract refers to modifications which are set forth in the Contract Notes section above or in a separate writing which is duly executed by Lessor and delivered to Lessee, and which refers to this Contract. Lessee acknowledges and agrees that this Contract, or any amendment or modification of this Contract, or any custom rent schedule which Lessor may elect to provide, shall only be binding upon Lessor if the same is duly executed in writing by Lessor and delivered by Lessor to Lessee. Any Amendment, custom rent schedule, and any separate writings referred to in paragraphs above, if applicable, are incorporated herein by reference. This Contract, and Amendment, and any modification or other amendment shall only be binding upon Lessor the same is duly executed by an authorized representative of Lessor and delivered by Lessor to Lessee.
20) PAYMENT TERMS: Net 30 based on credit approval unless otherwise specified in Lessor’s most recent Quotation or Contract amendment. (a) Taxes are not included in any rental, sale or labor quotes unless otherwise specified in Lessor’s most recent Quotation or Contract amendment. Lessee is responsible for paying applicable taxes on Equipment and services, including VAT, sales and use taxes. If applicable, Lessee will only be considered exempt when a valid Sales Tax Exemption Certificate is received when ordering any Equipment, pumping services and/or sale goods. The Lessee is responsible for providing complete and accurate billing and contact information. If any invoiced amount is not received by the Lessor by the due date, then without limiting the Lessor’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance, with an annual rate of 18%.
21) PERMITS: Lessee has sole responsibility for (a) obtaining and maintaining all permits, consents, approvals, licenses, certificates, bonds, or other similar third-party action in connection with Lessee’s receipt of, use of, and return of the any Equipment rented and (b) giving all notices required by law in connection with Lessee’s receipt of, use of, and return of the any Equipment. Provided however, that Lessor is responsible for any notices which it is specifically required to provide by statute or regulation, or which it, in its discretion, elects to provide, in connection with its performance under this Contract.
22) ACCESS: Lessee is solely responsible for insuring that the following conditions are continuously met from the time of Lessor’s delivery of its Equipment to Lessee until Lessor has finally completed pick up of all of its Equipment, and for which Lessor shall not be required to incur any cost or expense to Lessee or any third party: (a) availability of suitable physical and lawful access so that Lessor can deliver, inspect, service, pick up, and perform other tasks in connection with its Equipment and its performance under this Lease, and (b) access which permits Lessor to safely and properly perform such tasks using its own vehicles and without any necessity for Lessor to utilize the Equipment of any third party, unless Lessor has expressly agreed to use third party equipment as set forth in the Contract Notes above. Upon the termination in any manner of the Contract, whether by Lessee’s breach hereof or expiration of the rental term, Lessor by its agents or employees is hereby authorized to enter upon any premises where such Equipment may be and to take possession of and to remove such Equipment.
23) RISK: (a) Lessee assumes all risks arising from its rental of and use of the Equipment, including but not limited to the suitability of the Equipment for Lessee’s intended purpose and the effect of use of the Equipment on areas where dewatering or pumping occurs and all adjacent areas, including soils, vegetation, banks, ditches, pits, waterways, littoral areas and any improvements or tangible personal property located on any such adjacent areas, (b) Lessor’s currently published performance specifications for the Equipment, if any, are for illustration only and are not a warranty of or representation of the actual performance of the Equipment when Lessee utilizes the Equipment, (c) no advice, consultation with, or suggestion by, any of Lessor’s employees with regard to the use of or performance of any Equipment shall be constitute any guaranty of performance, (d) operating the Equipment contrary to its typical and ordinary use, or contrary to any warnings or instructions provided to Lessee with the Equipment, or in an unsafe or careless manner, may result in damage to the Equipment and other property and could result in personal injury, and (e) Lessee has, prior to Lessor’s execution of this Lease, provided Lessor with current and accurate information, to the best of Lessee’s knowledge, of Lessee’s intended use (such as some estimate of flow rate, particle size, and solids content) and the site conditions where the Equipment will used, so that Lessor can determine which equipment, if any, it is willing to lease to Lessee and the rental charges to be paid by Lessee. Under no circumstances is Lessor liable for any additional charges, costs or expenses incurred by Lessee (whether payable to Lessor or some third party) due to conditions which are hidden at the time Lessor executed this Lease, including but not limited to rock formations, boulders, hard pan, poor permeability, gas lines, electrical conduit, drainpipes, or any other obstructions. In the event of hidden conditions, Lessor may modify the rental charges to include the charges which would be usually and customarily charged by Lessor under such conditions, or Lessor may cancel this Lease. Without limiting the generality of the foregoing, for any well point application, at a minimum Lessee, prior to Lessor’s execution of this Contract, is to inform Lessor’s personnel of the desired duty points, or information which Lessor requires to assist Lessee in determining the desired duty points (such as soil geology), so that Lessor can assist Lessee in Lessee’s determination of the duty points, including a description of the application requirements and some estimate of flow rate, particle size, and solids content. Without limiting the generality of the foregoing, under no circumstances does Lessor guaranty a dry hole.
24) LESSEE OBLIGATIONS: Should any of the machinery, equipment or appurtenances be received and accepted by the Lessee from any dray man, railroad company or any other carrier transporting same in a damaged condition, or with any of the machinery, equipment, parts or appurtenances missing, it shall be the duty of the Lessee to obtain from said drayman, railroad company or other carrier a written acknowledgement of the damage or shortage. The failure on the part of the Lessee to obtain such statement or acknowledgement upon this receipt and acceptance of said machinery, equipment, parts and appurtenances shall be treated as an acceptance of said machinery, equipment, parts and appurtenances in good, safe, serviceable condition and fit for use. Any damage or loss which has occurred, and which is not covered by a written acknowledgement or statement as aforesaid, or which occurs after acceptance of said property, shall be repaired and replaced at the expense of the Lessee. If the machinery, equipment, parts or appurtenances are damaged or lost in transportation and the Lessee furnishes to the Lessor a written detailed acknowledgement and statement from the carrier setting forth the character of the damage and toss, the Lessor agrees to use reasonable diligence in having said damage repaired and loss replaced within a reasonable time, but the equipment shall be deemed to have been delivered on the date of the acceptance thereof from the carrier. Unless otherwise stated under the Contract Notes above, or in Amendment hereto, Lessee acknowledges and agrees to : (a) provide adequate labor and material handling equipment onsite to unload/load and setup/breakdown equipment, including chains or cables of sufficient capacity along with cribbing material to support pumps, piping and accessories (b) once Lessor’s personnel deliver and set up the Equipment for operation, Lessee is thereafter solely responsible for competently operating the Equipment, except for such times as Lessor’s personnel are servicing or picking up the Equipment, (c) Lessee will at all times only allow a competent and knowledgeable operator to operate the Equipment (c) Lessee will comply with all laws and regulations applicable to the use or operation of the Equipment, (d) Lessee is solely responsible for monitoring the operation of the pumps and Lessor does not provide any personnel to monitor the operation of its Equipment to provide daily inspection and maintenance of pumps and equipment as specified such as monitoring fluid level, grease, leaks, cooling systems, water, batteries, cleaning of suction screen(s) as necessary, and shall immediately notify Lessor of any deficiencies. (e) If monitoring through telemetry is required and Pump watch is recommended by Lessor but not agreed to by Lessee, Lessee will assume all responsibility to watch pumps and will promptly report any shutdowns to Lessor. (f) Lessee is solely responsible to take any remedial action to prevent injury to persons or property as may be required due to the failure of any of the Equipment to operate as intended. (g) Lessee acknowledges Lessor delivers the Equipment to Lessee from its existing inventory and in ready to rent condition, not new or like new condition. (h) The Equipment may fail from time to time, and Lessor is not undertaking to provide Equipment which continuously operates, which is free of all faults, or which is not subject to periodic malfunction. (i) Customer is responsible to repair or replace damaged tires of leased equipment but not limited to
25) CONTAMINATION: Unless otherwise noted, Lessee is responsible for the flushing and cleaning of tanks, pipelines, and pumps and other equipment. Lessee will not use equipment to store or transport hazardous material. Lessor does not guarantee equipment is free of contamination.
26) JOB LOCATION: Lessee agrees not to remove said equipment from delivery location without the written consent of the Lessor firsthand and obtained. Lessor will bear no responsibility for damage to the Customer’s towing vehicle. The Lessee agrees to pay as rental for said equipment Lessor Company current published rate, unless a specified rate is stated hereupon, plus applicable sales tax. Rentals payable in advance for each installment period; and after the expiration of the minimum guaranteed rental period, rents shall continue at the same rates until the equipment is delivered to the closest storage yard of the Lessor.
27) RETURN OF EQUIPMENT: Upon the expiration or earlier termination of this rental term, Lessee will immediately deliver Lessor’s Equipment to Lessor in the same condition as when delivered to Lessee, ordinary wear and tear through careful use excepted to tires, blades, and other equipment items,, at the location to which Lessor delivered the Equipment or such other location as the Lessor may approve in writing. Lessee agrees not to remove said Equipment from the initial delivery location without first obtaining Lessor’s written consent. Any pick-up receipt issued to Lessee at pickup is not to be construed as the Lessor’s final clearance of the Lessee’s obligation to compensate Lessor for damage to or shortage of the leased Equipment. Upon return of Lessor’s Equipment to its storage yard, Lessor shall check for shortages and check the condition of the Equipment. Lessee also agrees to reimburse Lessor for any expense Lessor incurs in extracting, hauling, shipping, or otherwise recovering its Equipment from a location other than a location which Lessor has authorized or due to any unusual change in the circumstances at the situs of the Equipment, such as the Equipment becoming buried, stuck or not otherwise readily accessible by Lessor’s delivery vehicles and personnel. Lessor, at its option, may elect to repair any damaged Equipment and charge Lessee for the reasonable cost of such repairs. Lessee agrees to pay the full replacement value of any Equipment which in not redelivered or which Lessor elects not to repair.
28) RETAINAGE/ DAMAGES: Lessee is prohibited from withholding retainage from Lessor invoices and/ or charging Lessor liquidated damages. Lessee will not permit any liens or encumbrances that prevent payment. (a) 1-1/2% interest rate per month is payable for accounts past due 30 days. The Lessor and Lessee agree that no modification of this agreement shall be binding upon them or either of them unless such modification shall be made in writing and that the conditions stated herein on this lease are specifically understood to be part of this contract as through fully set forth verbatim herein. Check will be made for shortages and condition of equipment on its return to the Lessors storage yard and the pick-up receipt is not to be construed as the Lessor’s final clearance of the Lessee. This contract is binding only when signed and accepted by an authorized agent of Lessor company.
29) SET-OFF/ DEDUCTION: Lessee is prohibited in applying any set-off or deduction from charges which are due and payable to Lessor, unless the Lessor, in its discretion, delivers to Lessee a duly executed written consent to a set-off or deduction in advance of exercising any set-off or deduction. Lessor shall not be liable to Lessee, or any party claiming by, through or under Lessee, for prospective profits, lost profits, or special or consequential damages. Lessee assumes all risk and liability for loss, damage or injury to person or property of Lessee or others arising out of use or possession of any Equipment.
30) LIENS: Without the prior written consent of Lessor, duly executed by Lessor and delivered to Lessee, Lessee with not assign, sublet this Contract nor permit any lien arising by, through or under Lessee to attach to the Equipment. Lessee shall not, without the prior written consent of Lessor, relinquish possession of the Equipment to any third party, nor make any alteration or modification to the Equipment
31) NOTICE: Any notices or demands required or permitted hereunder may be given (1) by Lessor to Lessee in writing and by personal delivery, or certified mail to Lessee’s billing address (“Bill To”) as stated above, (2) by Lessee to Lessor in writing and by personal delivery, or certified mail to Holland Pump Company, with copy via electronic mail to (3) or to such other address as the parties may hereafter substitute by written notice given in the manner prescribed above. Such notices or demands shall be deemed given upon receipt in the case of personal delivery and upon mailing or transmission in the case of mail or electronic mail.
32) BREACH DETERMINATION: There shall be deemed to be a breach of this Contract: (a) if Lessee shall default in the payment of any rent hereunder and such default shall continue for a period of 10 days, (b) if Lessee shall default in the performance of any of the other covenants herein and such default shall continue uncured for 10 days after written notice thereof to Lessee by Lessor, (c) if Lessee shall default in the performance of any of the other covenants herein and such default materially affects the safety or security of Lessor’s Equipment, or materially impairs Lessor’s access to, or ability to pick up its Equipment, or would create a hazardous condition for Lessor’s personnel with respect to inspecting, servicing or picking up the Equipment, in which case Lessor may declare an immediate default without an opportunity for cure or (d) if Lessee ceases doing business as a going concern, or if a petition is filed by or against Lessee under the Bankruptcy Code), or (e) if Lessee attempts to remove or sell or transfer or encumber or sublet or part with possession of the leased Equipment or any part thereof.
33) EVENT OF BREACH: In the event of a breach of this lease, as herein defined, the rented Equipment shall upon Lessor’s demand forthwith be delivered to Lessor at Lessee’s expense at such place as Lessor shall designate and Lessor and/or its agents may, without notice or liability or legal process, enter into any premises of or under control or jurisdiction of Lessee or any agent of Lessee where the leased Equipment may be or by Lessor is believed to be, and repossess all or any part of the leased Equipment, disconnecting and separating all thereof from any other property, Lessee hereby expressly waiving all further rights to possession of the leased Equipment and all claims for injuries suffered through or loss caused by such repossession, Further, all sums due and to become due to Lessor shall, at Lessor’s option, become payable forthwith, and the Lessor, in addition to being entitled to take possession of the leased Equipment as hereinbefore described, also shall be entitled to immediately recover its damages from Lessee. In the event of a breach of this Contract, Lessor, at its option, may enforce by appropriate legal proceedings all of Lessor’s remedies in law or in equity. Should it become necessary to place this account on collection, suit or other legal proceedings to enforce any of the term’s provisions, or conditions of this Contract, Lessee agrees to pay all costs and expenses of collection, suit, or other legal action, including reasonable attorney’s fee and if necessary appellate fee and fees incurred by Lessor in any bankruptcy or insolvency proceeding. TO THE EXTENT PERMITTED BY LAW, LESSOR AND LESSEE AGREE TO AND DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS CONTRACT. No express or implied waiver by Lessor of any breach of Lessee’s obligations hereunder shall constitute a waiver of any other breach of Lessee’s obligations hereunder.
34) LESSOR RIGHTS: Any failure by Lessor to insist upon strict performance by Lessee of any terms and conditions of this Contract shall not be construed as a waiver of Lessor’s right to demand strict compliance. The express waiver of one provision in this lease shall not be deemed a waiver of any other provision herein. Lessee has carefully reviewed this Contract and waives any principal of law which would construe any provision hereof against Lessor as the draftsperson of this Contract. As part of the consideration hereof, it is agreed that time shall be of the essence of this Contract.
35) COLLECTIONS: Should it become necessary to place this account on collection, suit or other legal proceedings to enforce any of the term’s provisions, or conditions of this agreement, Lessee agrees to pay all costs and expenses of collection, suit, or other legal action, including reasonable attorney’s fee and if necessary appellate fee. Lessee hereby waives trial by jury and any and all privileges and rights which Lessee may have under Chapter 47, Florida Statures, relating to the revenue, as it now exists or may hereafter be amended, and further, Lessee agrees that any legal action brought for collection of past due accounts may be bought in the appropriate court in Palm Beach County, Florida or other location at Lessor’s discretion.
36) INDEMNIFICATION: Lessee shall hold harmless, indemnify and defend Lessor from any claims whatsoever, arising from and related to (a) any pollution, contamination, environmental impairment, and /or similar condition directly or indirectly caused by or resulting in whole or in part from Lessee’s use of any Lessor equipment or (b) any environmental statutory compliance requirements applicable to any equipment (or any use thereof) and required under any and all foreign or domestic federal, state, or local laws, ordinances, regulations, codes, or requirements of any governmental authorities which regulate or impose standards of liability or conduct concerning air, water, soils, wetlands, and watercourses, solid waste, hazardous waste and/or materials, worker and community right-to-know, noise, resource protection, health protection, and similar environmental, health, safety, and land use concerns as may now or at any time hereafter be in effect. This indemnification shall survive the termination of this agreement. Any failure by Lessor to insist upon strict performance by customer of any terms and conditions of this Rental Agreement shall not be construed as a waiver of Lessor’s right to demand strict compliance. Lessee has carefully reviewed this Agreement and waives any principal of law which would construe any provision hereof against Lessor as the draftsperson of this agreement.
37) Lessee hereby indemnifies Lessor, and its directors, shareholders, officers and employees, against, and agrees to save Lessor and its directors, shareholders, officers and employees harmless from, any and all liability and expense arising out of the ordering, use, condition, or operation of each item of Equipment delivered to Lessee (or delivered at the direction of Lessee), including liability for death or injury to persons, damage to property, imposition of strict liability under the laws or judicial decisions of any state or the United States, and attorneys’ fees (including fees incurred in any appellate or bankruptcy proceeding), court costs and other legal expenses incurred by Lessor in connection with defending any claim brought to enforce any such liability or expense. Further, Lessee shall indemnify and save Lessor and its directors, shareholders, officers and employees harmless from any and all liability, loss, damage, expense, causes of action, suits, claims, or judgments arising from injury to person or property resulting from or based upon the actual or alleged use, operation, delivery or transportation of any or all of the Equipment while such Equipment is leased to Lessee under this Contract or is otherwise under the care, custody or control of Lessee. Lessee shall promptly notify Lessor in writing of any claim, demand, or lawsuit of which Lessee has notice and which is asserted by any party against Lessor. Any and all rights of Lessor hereunder to indemnity from Lessee, and the provisions of this paragraph 35, shall survive termination of this Contract. Lessee shall hold harmless, indemnify and defend Lessor, and its directors, shareholders, officers and employees, from any claims whatsoever, arising from and related to (a) any pollution, hazardous materials, spillage of oil (including vegetable oil) or other liquids, contamination, environmental impairment, and /or similar condition directly or indirectly caused by or resulting in whole or in part from Lessee’s ordering of. use of. or operation of any of the Equipment or (b) any environmental statutory compliance requirements applicable to any of the Equipment (or any ordering of, use of, or operation of the Equipment) and imposed under any and all foreign or domestic federal, state, or local laws, ordinances, regulations, codes, or requirements of any governmental authorities which regulate or impose standards of liability or conduct concerning the environment, pollution, air, water, soils, wetlands, and watercourses, solid waste, hazardous waste, hazardous materials, worker and community right-to-know, noise, resource protection, health protection, and similar environmental, health, safety, and land use concerns as may now or at any time hereafter be in effect. This indemnification shall survive the termination of this Contract.
38) VENUE: This Contract will be governed by the laws of the State of Florida applied without regard to any conflict of law provisions. The lessee further consents to the jurisdiction of either the United States District Court for the Southern District of Florida or the Courts of the Fifteenth Judicial Circuit, Palm Beach County, Florida, for the judicial resolution of any disputes arising under, or in any way related to, this Contract. Lessee consents to venue of any such action to be laid in Palm Beach County, Florida. Lessee shall be deemed to consent to an application, if Lessor elects to make such application, to any court in which Lessee has sued Lessor to transfer venue of such action to Palm Beach County, Florida, and Lessee shall thereupon be deemed to have waived any right under Chapter 47, Florida Statutes, to have venue laid in any other venue.