MASTER RENTAL AGREEMENT
This Master Rental Agreement (“Agreement”) is made between Nelson Rentals, LLC d/b/a Swifty Rentals (“Swifty Rentals,” “Us”, “We,” “Our”) and the Customer shown on the Rental Order Form. This Agreement is in effect as of the commencement of the Rental Period shown above and shall remain in effect for each and every successive Rental Period (defined below) unless otherwise canceled by Us or agreed to by the parties in writing. Your acceptance of the Equipment constitutes Your acknowledgement, satisfaction, agreement, and compliance with the terms, conditions, and representations set forth herein.
1. CUSTOMER INFORMATION
We require certain information from or about You and may use third-party services to provide or verify such information. You acknowledge that We rely on the accuracy and completeness of such information in entering into this Agreement and the furnishing of Equipment. You warrant that the information You furnish to us is accurate and complete. You authorize Us to use the information We receive from or about You to make decisions about the rental of Our Equipment, to communicate with you, or to provide to third parties for any purpose to carry out this Agreement.
2. RENTAL ORDER FORM
Each item You rent will be shown on a Rental Order Form, which will identify the Equipment rented, applicable rental rate(s), and dates of the rental term. This Agreement shall be incorporated and integrated into each Rental Order Form between Us and You.
3. RENTAL TERM
Your right to possess the Equipment shown on the Rental Order Form begins and ends on the dates/times shown on the Rental Order Form (“Rental Period”). Rental charges commence when the Equipment leaves our premises and end when the Equipment is either returned to Our business location during normal business hours or picked up by Us. Your right to possess the Equipment terminates on the expiration of the Rental Period. Your continued possession after the Rental Period, unless previously agreed to by Us in writing, is a material breach of this Agreement and may be immediately reported to law enforcement as theft.
4. RENTAL RATES
Rental rates are for normal “one-shift” usage, e.g., eight (8) hours per day, 40 hours per week, and 160 hours per four-week period. We reserve the right to assess additional rental charges, at standard rental rates, for usage that exceeds these hours. Charges for delivery, refueling, cleaning, and repairs, when applicable, are not included in the rental rate. Although We may estimate certain of these additional charges on the Rental Order Form, final charges are determined after the Equipment is returned and inspected by Us. You agree to pay all applicable rental rate(s), taxes, deposits, late fees, cleaning fees, damage charges, and delivery fees shown on the Rental Order Form or in Our written policies. You expressly authorize Us to retain any or all of Your deposit and/or to charge any payment method We have on file for You for charges assessed at the conclusion of Your rental.
Rental charges are not suspended during weekends, holidays, or weather-related events.
5. DEPOSITS AND HOLDS
We may require a deposit before allowing You to rent the Equipment. You agree that We may, prior to releasing the Equipment to You, verify the availability of funds with Your bank, deposit Your check in Our bank, and/or place a temporary hold on Your credit card until all amounts due and owing have been paid to Us. Once all charges have been settled at the conclusion of Your rental (including the payment for any damage caused to the Equipment), any amounts still retained by Us above and beyond what You owed will be returned to You.
6. PAYMENTS
All charges shall be due and payable when posted. Any amounts not paid within thirty (30) days shall accrue a late payment fee of two percent (2%) per month until paid.
We reserve the right to charge a three percent (3%) surcharge on credit card payments, which is not greater than Our processing costs.
7. TITLE TO EQUIPMENT; NO SUBLETTING
This Agreement is not a contract of sale, and title to the Equipment shall at all times remain with Swifty Rentals. You shall not make any representations of ownership of the Equipment, and you must not subject Our Equipment to any liens or encumbrances of any character. You shall not sublease Our Equipment unless We have agreed in writing.
8. INSURANCE
We may require You to carry and maintain, at your sole cost, the following insurance: (a) commercial auto liability insurance with at least a per occurrence limit of $2 million; (b) commercial general liability insurance (providing coverage equal to or greater than the standard ISO CG 00 01 12 04 form) with limits of insurance of at least $1 million per occurrence and $2 million in the aggregate; and (c) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment. Any such policies shall provide, or be endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by Us. You shall name Nelson Rentals, LLC dba Swifty Rentals as an additional insured for claims arising out of the maintenance, operation, or use of the Equipment rented to You by Us (providing coverage equal or greater than the standard ISO CG 20 28 07 04 or its equivalent), and, if applicable, an an additional loss payee for property insurance.
You further agree that the amount of insurance available to Us shall be for the full amount of the loss up to policy limits of liability and shall not be limited to the minimum requirements of this Agreement. In the event any policy provided in compliance with this Agreement states that the insurance afforded to an additional insured will not be broader than that required by contract, or words of similar meaning, You agree that nothing in this Agreement is intended to restrict or limit the breadth of such insurance. Any deductibles or self-insured retentions shall be Your sole responsibility.
All insurance required by this Agreement shall include a waiver of rights of recovery against Nelson Rentals, LLC dba Swifty Rentals or its insurers by You and Your insurers, as well as a waiver of subrogation against Nelson Rentals, LLC dba Swifty Rentals or its insurers.
No “Other Insurance” provisions shall apply to Us or Our insurers by virtue of being named as an additional insured and/or loss payee under the policy. Our insurance policies shall be considered excess over all of Your policies.
Your obligations to indemnify and hold Us harmless under this Agreement are in addition to the insurance coverage required herein; Our maintenance of any such insurance coverage shall not operate to waive any such indemnification obligations You have.
We shall be provided at least thirty (30) days written notice prior to the cancelation of any insurance policies or coverages required herein.
If required by Us as a condition of renting Our equipment, You acknowledge your obligation and agree to provide Us proof, prior to taking possession of the Equipment, of all required insurance coverages and endorsements described herein. Should We rent Equipment to You without possessing proof of the insurance coverages and terms described herein, such occurrence shall not operate in any manner to be a waiver of Your default (if it is later determined that You failed to comply with Your obligations to carry and maintain such coverages) or Our right to maintain a breach of contract action against You.
9. PRE-RENTAL INSPECTION
You agree to inspect the Equipment prior to taking possession to ensure its satisfactory working condition and to familiarize yourself with all safety systems, starting/stopping mechanisms, fuel/oil location, electrical requirements, etc. You shall ensure that you: (1) have the knowledge and ability to operate the Equipment safely; (2) that you are aware of and agree to perform any routine maintenance required during the term of Your rental; and (3) that the Equipment is suitable for Your needs. You must notify Us immediately if Your inspection reveals any concern, question, or defect regarding the equipment or its safe operation.
For all towable Equipment, You shall inspect all hitches, couplers, safety chains, pins, and wiring to ensure compatibility with and the safe operation of the towing vehicle and the Equipment. You are solely responsible for connecting and securing the Equipment to the tow vehicle, as well as complying with all laws, regulations, and safety standards applicable to towing the Equipment. Swifty Rentals shall not be liable for any damage caused to the towing vehicle, Your property, or to any third person, arising from or related to Your transportation of the Equipment.
10. USE & OPERATION OF EQUIPMENT
You shall not alter, modify, affix to, or otherwise change the Equipment from its original state. You shall ensure that the Equipment at all times remains movable personal property, and You shall not allow the Equipment to be incorporated, attached, or joined to any real or immovable property.
You warrant that for the duration of the Rental Period, the Equipment will be transported, stored, and operated safely, lawfully, reasonably, and with due care. You will not use or allow anyone else to use the Equipment for an illegal purpose or in any unsafe manner. All installed or required safety devices, guards, lock-out/tag-out devices, and similar safety precautions must be utilized at all times. Additionally, You and each person You allow to use the Equipment must utilize all required personal protective equipment (PPE). You must exercise due care in who You allow to use or possess the Equipment, and You are solely responsible for ensuring their qualification, capacity, and agreement to operate or otherwise interact with the Equipment safely, properly, and lawfully.
When the Equipment is not in use, You must exercise reasonable care to prevent damage, theft, tampering, or the unauthorized use of the Equipment. You must ensure the Equipment is secured, locked, or otherwise rendered inoperable by unauthorized persons.
For the duration of the Rental Period, You agree to perform, at the recommended intervals, all inspections and maintenance tasks, including but not limited to checking engine oil, inspecting electrical connections, greasing necessary items, and monitoring fluid levels.
Should the Equipment be involved in an accident, become unsafe, malfunction, or require repair, You must immediately stop using the Equipment and notify Us immediately. If such condition is the result of normal operation, Your sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Such remedy is expressly conditioned on Your returning the Equipment to Us within twenty-four (24) hours of when the Equipment was damaged, became defective, or rendered inoperable.
11. ORDINARY WEAR & TEAR
Ordinary wear and tear refers to the normal deterioration of Equipment when, during the Rental Period, the Equipment is used as intended, within its rated capacity, with maintenance performed at recommended intervals, and with the exercise of reasonable care. Damage or deterioration caused by or consisting of any of the following nonexhaustive occurrences shall not be deemed ordinary wear and tear: (1) the lack or insufficient quantity of recommended fluids or lubrication, to also include the use of different fluids or lubrication than the type and quality specified by the manufacturer; (2) failure to grease or lubricate components as required; (3) damage resulting from a collision with any object; (4) overturning, overloading, or exceeding the rated capacity of the Equipment; (5) damage in the nature of dents, holes, punctures, perforations, tearing, staining, warping, bending, misalignment, corrosion, or permanent discoloration of any part of the Equipment; (6) damage caused by water, rain, wind, hail, ice, fire, freezing, or any weather-related event; (7) breakage, loss, or misalignment of any glass, fiberglass, metal, plastic, or composite panels, doors, hatches, or covers; (8) excessive wear caused by the insufficient removal of sand, mud, concrete, rocks, or similar types of matter; (9) damage to rubber tires or tracks beyond ordinary deterioration to be expected during the timeframe of the Rental Period; and (10) damage or wear that is not considered ordinary or reasonable within the equipment rental industry.
12. DAMAGE WAIVER
You may elect to purchase, as a separate cost, a nonrefundable Limited Damage Waiver (“LDW”) to waive certain of your responsibilities for accidental physical damage caused to the Equipment. The LDW is not insurance, and limitations, conditions, and exclusions apply. Examples of damages for which the LDW will waive Your responsibility include fire, lightning, vandalism, windstorm, hail, earthquake, and flood. It shall also provide up to $750 protection for damages to non-structural and non-critical components (e.g., broken light, cracked dust cover, paint scratch, blown fuse, and the like). The LDW shall only apply provided (1) You are in full compliance with the terms and conditions of the Rental Agreement, (2) you took reasonable precautions against such damage, (3) You notify Us of the damage no later than the end of the Rental Period, and (4) if necessary, you file a police report documenting damages caused by third parties.
Even if the LDW is purchased, You remain fully responsible and liable for (and the Damage Waiver will not apply to) loss or damage caused by or resulting from any of the following: (1) Intentional, reckless, abusive conduct; (2) use of the Equipment in violation of any term of the Rental Agreement or applicable law; (3) Operation by any person not named or authorized in the Rental Agreement; (4) Improper use, overloading, or exceeding rated capacity of the Equipment; (5) Failure to maintain, lubricate, fuel, or care for the Equipment; (5) Damage to tires, trailer doors, trailer ramps, tracks, glass, or cab enclosures; (6) Loss or damage to tools, accessories, attachments, hoses (including hydraulic hoses and fittings), cables, or other items not permanently attached to the equipment; (7) Theft or mysterious disappearance unless You immediately file a police report and reasonably assist Us or law enforcement in attempting to retrieve the Equipment; (8) Transportation of the Equipment; and (9) Use of the Equipment outside the State of Tennessee without Our written consent
13. COMPLIANCE WITH LAWS, REGULATIONS, AND ORDINANCES
At Your sole expense, You must comply with all municipal, state, and federal laws, regulations, ordinances, licensing/permitting, and safety standards which may apply to the use of the Equipment, including but not limited to all applicable OSHA, ANSI, and environmental protection requirements.
14. RETURN OF EQUIPMENT
You shall return the Equipment to Us in the same condition as when You took possession, ordinary wear and tear excepted. As applicable, all Equipment should be returned with a full tank of fuel (of the quality recommended by the manufacturer) and clean of all debris, trash, mud, concrete, personal property, and similar remnants of Your use. Unless such services are prepaid and shown on the Rental Order form, You will be charged a cleaning and/or refueling fee for each item of Equipment that has not been cleaned or refueled to its pre-Rental Period condition. Equipment that is excessively dirty, worn, damaged, or odorous may also incur additional rental charges if We cannot reasonably restore the Equipment to a rentable condition prior to the next available rental period. You authorize Us to charge any method of payment We have on file for You for all such cleaning, refueling, and excess rental charges.
15. LATE FEE / FAILURE TO RETURN
We may impose a late fee on any Equipment not returned to Us by the end of the Rental Period. Such fee shall be 1.5 times the highest daily rental rate for each calendar day the Equipment is not returned. Our right to charge You a late fee shall not be deemed to be an authorized extension of the Rental Period or Our consent to your continued possession of the Equipment, unless otherwise stated by Us in writing. Any Equipment not returned to Us at the conclusion of the Rental Period and without Our written consent to extend the Rental Period, may be deemed stolen and immediately reported to law enforcement.
In lieu of a late fee, should We have reasonable grounds to believe You have stolen, hidden, disposed of, or transported out of Tennessee any item of Equipment, We may, in lieu of assessing a late fee, declare the equipment stolen and charge You the full replacement cost of the Equipment.
16. DAMAGE, LOSS, OR THEFT
This provision shall apply except to the extent You purchased the LDW and the damages to the Equipment occurred and are covered by the terms, limitations, and conditions of the LDW.
You must notify Us immediately of the loss, destruction, damage, or theft of the Equipment. You are legally and financially responsible for any and all damage, theft, loss, and/or destruction of the Equipment, normal wear and tear excepted, In the event of a loss, theft, or destruction of the Equipment, or Your inability or failure to return the Equipment to Us for any reason, You promise to pay Us the full replacement cost of the Equipment (or if the exact item of Equipment is no longer available, a substantially similar item of like value and quality), as well as the full rental rate applicable to the Equipment until such time as We are able to replace the Equipment.
If the Equipment is returned in a damaged or excessively worn condition, You agree to pay the reasonable cost of repair, as well as the regular rental rate of the Equipment, until all repairs are completed and the item is deemed “ready to rent.” We have no obligation to begin repairing the Equipment until You have paid the estimated cost thereof. Unless We specify otherwise in writing, You are responsible for arranging, paying for, overseeing, and ensuring the timely repair of Equipment damaged during the Rental Period, including all transportation requirements to/from the repair facility. All such repairs must be performed by trained and qualified personnel, using OEM parts, and to original OEM quality and specifications. You authorize Us to communicate with the responsible repair facility, as well as to verify, preapprove, inspect, and/or object to any aspect of the repair or repair personnel.
You expressly authorize us to charge any payment method We have on file for You for all such repair and replacement costs, as well as incidental costs to include, but are not limited to, transportation/delivery, installation, taxes, environmental surcharges, and disposal fees.
17. YOUR COOPERATION
In the event of a theft, loss, destruction, or damage to the Equipment during Your Rental Period, You agree to reasonably cooperate with Our efforts to recover, diagnose, or locate Our Equipment, even after the Rental Period expires. Such cooperation may include, but is not limited to, assisting law enforcement and prosecuting authorities, if requested.
18. DATA COLLECTION
We utilize various forms of GPS, cellular, and telematics tracking devices on Our Equipment to prevent theft, schedule maintenance, monitor performance, and for other purposes allowed by law. You agree and authorize Us to collect, use, store, and disseminate all such data indefinitely and in whatever form We deem necessary. You acknowledge that You have no ownership of or privacy interest in any matter relative to Your use or possession of Our Equipment. You must not remove, disable, tamper with, manipulate, or cause not to transmit any GPS, cellular, or telematics transponder.
19. HOLD HARMLESS/INDEMNITY
You understand and warrant that You are solely and legally responsible, and You assume full liability, for all damages, losses, harms, and injuries arising from, involving, related to, or proximately caused by the Equipment or any aspect of its use and operation, including but not limited to its storage, loading/unloading, maintenance, repair, and transportation, for the duration of the Rental Period or for so long as We have not received the Equipment from you. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS NELSON RENTALS, LLC DBA SWIFTY RENTALS, AND ALL OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, PARENTS, AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, AWARDS, JUDGMENTS, LIENS, LEVIES, AND CAUSES OF ACTION, OF EVERY TYPE AND CHARACTER, INCLUDING BUT NOT LIMITED TO LEGAL FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION, SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY, OR WRONGFUL DEATH, ARISING OUT OF OR RELATED TO (A) THE POSSESSION, OPERATION, USE, ALTERATION, MODIFICATION, REMOVAL, TRANSPORTATION, STORAGE, MAINTENANCE, OR RENTAL OF THE EQUIPMENT, (B) CLAIMS BY ANY CUSTOMER, INDEPENDENT CONTRACTOR, OR THIRD PARTY AGAINST YOU, INCLUDING THAT YOU FAILED TO DISCLOSE OR OBTAIN CONSENT TO DATA COLLECTION PROVIDED FOR IN THIS AGREEMENT, (C) ERRORS, OMISSIONS, INACCURACIES, OR MISREPRESENTATIONS IN THE DOCUMENTS OR INFORMATION YOU PROVIDED TO US, OR WE OBTAINED FROM OTHERS, UPON WHICH WE RELIED WHEN RENTING YOU THE EQUIPMENT, OR (D) VIOLATION OF ANY LAW, ORDINANCE, OR REGULATION. THIS INDEMNIFICATION AND HOLD HARMLESS PROVISION SHOULD HAVE THE BROADEST INTERPRETATION ALLOWABLE BY LAW. YOUR DUTY TO INDEMNIFY US WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE AGREEMENT.
20. LIMITATION OF LIABILITY
Swifty Rentals shall not be liable to You or any other party for: (a) any loss, damage, or injury caused by, resulting from, or in any way connected with the Equipment; (b) Our failure or delay in delivering or making the Equipment available to You; (c) Our failure to repair or replace non-working Equipment; (c) any incidental, consequential, punitive or special damages, including damages resulting from lost profits or lost business opportunity; (d) civil, criminal, or contractual fines or penalties of any nature; (e) attorney fees and litigation costs; or (f) liquidated or punitive damages. You acknowledge and assume all risks inherent in the rental, operation, use, and possession of the Equipment for the duration of the Rental Period and will take all necessary precautions to protect all persons and property from injury, loss, or damage resulting therefrom or from any of the terms and conditions of this Agreement.
21. WARRANTY AND DISCLAIMER
We warrant that the Equipment will be in good working order at the time the Rental Period commences. WE EXPRESSLY DISCLAIM ALL SUCH OTHER WARRANTIES, EXPRESS OR IMPLIED, MADE IN CONNECTION WITH EACH AND EVERY EQUIPMENT RENTAL TRANSACTION, INCLUDING BUT NOT LIMITED TO THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THAT THE EQUIPMENT IS SUITED FOR YOUR INTENDED USE, OR THAT IT IS FREE FROM DEFECTS. In the event of a breach of the above warranty, We will, at Our sole expense, repair or replace the equipment with reasonably similar Equipment if such replacement Equipment is available. If We are unable reasonably to repair the Equipment, or no such reasonably similar equipment is available, Your sole and exclusive remedy hereunder shall be a refund of the rental charges pertaining to the defective Equipment for the remainder of the Rental Period. Such remedy is conditioned on Your returning the defective Equipment to Us within twenty-four (24) hours of the defect arising.
22. NO WAIVER
Our failure at any time to insist on Your strict performance of this Agreement shall not waive Our right to demand strict compliance at any other time or with respect to any and each provision herein.
23. VENUE, GOVERNING LAW, & JURY TRIAL
This Agreement shall be governed by the laws of the State of Tennessee. All legal proceedings between the parties shall be commenced in the state or federal courts located in or having jurisdiction in Roane County, Tennessee. THE PARTIES WAIVE TRIAL BY JURY.
24. DEFAULT, REMEDIES, & COLLECTIONS
Time is of the essence with respect to Your performance under this Agreement. We may declare You to be in default if any of the following nonexhaustive circumstances arise: (a) You fail to make any payment required hereunder when due; (b) You fail to maintain the required insurance policies and limits described herein; (c) You fail to properly operate, maintain, or repair the Equipment; (d) You attempt to sell, transfer, encumber, hide, or deny Us access to the Equipment; (e) any voluntary or involuntary bankruptcy, insolvency, or receivership proceeding is instituted by or against You, or (f) You fail or refuse to provide, when reasonably requested by Us, reasonable assurances of Your intention or ability to abide by this Agreement
Our remedies hereunder are cumulative. You acknowledge, authorize, and agree that upon Our determination of Your default, We may, in addition to all other remedies existing at law or equity, (a) terminate this Agreement; (b) declare all unpaid rents and charges immediately due and payable; and (c) enter the premises where the Equipment is located, take possession of and remove the Equipment or render the Equipment inoperable, with or without legal process. Should We seek injunctive or similar equitable relief against You, You agree that We may do so without posting a bond or other security.
In addition to the payment of any amounts due hereunder, You shall pay all costs and expenses We incur in exercising any of Our rights and remedies hereunder, including but not limited to costs and expenses we incur (a) locating, removing, and transporting the Equipment; (b) cleaning or repairing the Equipment; (c) seeking to collect the amounts owed to Us; and (d) reasonable attorney’s fees and costs, to include (but not limited to) expert witness fees, reasonable discretionary costs, as well as fees incurred in any bankruptcy proceeding and/or on appeal.
25. INCORPORATION OF OTHER DOCUMENTS
All documents pertaining to Your rental, including but not limited to inspection checklists, safety notices, operators manuals, and such similar documents, are incorporated into this Agreement by reference.
26. SEVERABILITY
Should a court of competent jurisdiction find one or more provisions of this Agreement to be unenforceable, You and We request the court to exercise its “blue pencil” authority to remove, re-word, restructure, or otherwise interpret such offending provision(s) as to make it enforceable but otherwise to have as close effect as possible to the original. Should the court be unable to make the provision(s) enforceable in any respect, such provision(s) shall be removed without affecting the validity or enforceability of the remainder of this Agreement.
27. MODIFICATION
We reserve the right to modify this Agreement at any time. The updated and current version of this Agreement will be posted on Our website or available for You in person at our business location during normal business hours. Any subsequent rental of Our Equipment after the date of each such change to this Agreement will constitute Your consent and acceptance of the changed terms. Except for changes described in this section, no other amendment or modification of this Agreement is permitted or will be effective unless signed in writing by both parties.
28. AGENCY
You warrant that any person or entity you allow to use, operate, repair, maintain, transport, store, or possess the Equipment is Your agent, or You are acting within your authority as agent for a principal, with regard to this Agreement. By signing below, You warrant that You have lawful authority to sign this Agreement on behalf of Customer.
The relationship existing between You and Us is contractual in nature, not employer-employee or principal-agent.
29. MISCELLANEOUS
Any cancelation, termination, or modification of this Agreement shall not release You from any outstanding obligations You have hereunder.
All formal notices to Swifty Rentals shall be in writing and sent via FedEX or USPS certified mail, return receipt requested, to Nelson Rentals, LLC, 493 Gallaher Road, Kingston, TN 37763.
The parties agree that the execution of this Agreement, the Rental Order Form(s), or any other ancillary agreement may be accomplished via electronic signature and transmitted by email, text message, or other means of electronic transmission. Electronic signatures shall have the same legally binding effect as handwritten signatures for purposes of validity, enforceability, and admissibility. This provision is intended to be compliant the federal E-SIGN Act and applicable Tennessee law.