This Order is submitted to BENCHMARK for acceptance within 30 days from the date set forth above and is not binding on BENCHMARK unless an authorized employee of BENCHMARK accepts this Order by signing below and returning a copy of the fully executed Order to Customer. If BENCHMARK accepts this Order, the terms and conditions hereof shall be binding on the parties as a rental agreement.
RENTAL PAYMENTS: If this Order is accepted by BENCHMARK, Customer agrees to pay rent, plus applicable sales tax and other applicable charges, for Single Shift Operation of the Equipment, at the rate and rental period indicated above, commencing on and ending on ("Rental Term").
Within thirty (30) days of the termination of the Rental Term, Customer shall, at its own expense, return the Equipment to BENCHMARK at its place of business in Tarrant County in proper condition and working order, normal wear and tear excepted, free and clear of all rights and liens of third parties. Customer must furnish proof of adequate insurance, as described in Item 8, as a condition to shipment or delivery of the Equipment. Customer is responsible for compliance with the applicable Maintenance Agreement for the Equipment at its own expense, including without limitation oil changes and other normal operating and maintenance expenses and regular maintenance every 250 hours of operation, as described in Item 10.
"Single Shift Operation" is defined as operation of the Heavy Equipment for up to 176 hours per month. (160 hours for Skid Steers and Mini Excavators) Operation of the Heavy Equipment in excess of 44 hours per week (40 Hours for Skid Steers and Mini Excavators) shall result in Customer's payment of rent at an increased rental rate, computed at 1½ times the rental for Single Shift Operation, and such increased rate shall continue for the Rental Term. BENCHMARK does not guarantee Heavy Equipment operation of 176 hours per month, or Skid Steers and Mini Excavators of 160 hours per month. Adjustment in the rental rate for excessive Single Shift Operation may be determined and billed after the Equipment is returned to BENCHMARK.
Customer agrees on demand to execute and deliver to BENCHMARK such additional forms, documents and agreements as may be reasonably required by BENCHMARK to consummate this Order when accepted and to take such further action as BENCHMARK may request to carry out the intent of this Order. Customer authorizes BENCHMARK to file UCC-1 financing statements with the secretary of state of the state where the Customer is located to evidence the rental of the Equipment.
BENCHMARK reserves the right, in its sole discretion, to accept or reject this Order. If this Order is not accepted within 30 days of the date written above, this Order shall be deemed rejected.
1. Term.
This Order, upon acceptance by BENCHMARK, evidences the rental of the Equipment at the rental rate set forth herein during the Rental Term. The Rental Term agreed upon by Customer is non-cancelable. Any extension of the Rental Term shall be binding on BENCHMARK only if BENCHMARK and the Customer sign a written extension agreement.
2. Payment.
Customer shall make all payments when due, in US currency, to BENCHMARK at its office in Tarrant County, Texas, or as otherwise directed. All rent payments are absolute and unconditional, and shall not be subject to any setoff, counterclaim or defense. Customer’s failure to pay any amount hereunder when due shall bear interest at the rate of 18% per annum until paid.
3. Limitation of Warranty.
BENCHMARK makes no representation or warranty of any kind, express or implied, as to merchantability, fitness for a particular purpose, operation, design, or any other matter, and all such warranties are expressly excluded and disclaimed. BENCHMARK agrees that it will not interfere with Customer’s quiet use and enjoyment of the Equipment during the Rental Term so long as Customer is not in default.
4. Limitation of Liability.
BENCHMARK shall not be liable for any damage to person or property sustained in the operation of the Equipment by Customer or as a result of any delay, failure or alleged failure of Equipment. BENCHMARK shall not be liable for, and Customer assumes liability for and agrees to indemnify and hold BENCHMARK harmless against, all injury and damage connected with the possession, operation, maintenance, or other use of the Equipment by Customer or any party claiming under it. The indemnity shall include BENCHMARK’s attorneys fees and costs.
Customer's exclusive remedy for any claim against BENCHMARK shall be for damages only, and BENCHMARK's total liability for any and all losses and damages arising out of any cause whatsoever including, without limitation, defects in or defective performance of the Equipment (whether such claim be based in contract, negligence, strict liability, other tort or otherwise) shall in no event exceed the total amount of rental payments made for the Equipment in respect of which such cause arises or, at BENCHMARK’s option, the repair or replacement of the Equipment. In no event shall BENCHMARK be liable for incidental, consequential or punitive damages resulting from any such cause, and all such damages are hereby excluded.
5. Shipment; Location of Equipment.
Shipment of Equipment will be FOB at the place designated on the front side of this Order. Customer must provide instructions in advance of estimated shipping date. Freight/transportation charges, including loading/unloading charges, shall be paid by Customer. Customer agrees that it will not remove the Equipment from the state where the Equipment was shipped without first obtaining BENCHMARK’s prior written consent. Customer shall provide immediate notice to BENCHMARK if the Equipment is moved outside the county where the Equipment was shipped, but written consent to such move is not necessary so long as the Equipment is moved only to another county within the same state.
6. Default; Remedies.
Customer shall be in default hereunder if (a) Customer fails to make any rental payment when due, (b) Customer breaches or fails to perform any of its obligations hereunder, or (c) Customer's financial condition becomes unsatisfactory to BENCHMARK or BENCHMARK otherwise deems itself insecure. If an event of default occurs, BENCHMARK reserves the right, among other remedies, to terminate this rental agreement or to treat it as cancelled by Customer, and Customer shall remain liable for payment of all rentals for the Rental Term as allowed by applicable law. After default, and upon written demand, Customer shall promptly return the Equipment to BENCHMARK at Customer’s expense in the manner and condition required by this agreement upon termination of the Rental Term. At BENCHMARK’s option, and at Customer’s expense, BENCHMARK may take possession of and remove the Equipment, including all replaced parts, accessories and equipment, from the premises of Customer, with or without legal process, but without breach of the peace, or, without removal, may render unusable any Equipment or dispose of the Equipment on Customer’s premises. Customer will make no claim whatsoever to the Equipment or any interest or right therein after default, and Customer further agrees it will grant BENCHMARK the right of entry at any reasonable time to remove said Equipment from the premises. BENCHMARK’s rights shall be cumulative and not exclusive, and BENCHMARK reserves all other rights and remedies allowed by applicable law, including without limitation any additional rights and remedies allowed by Chapter 2A of the Texas Business & Commerce Code (the Texas Uniform Commercial Code).
7. Assignment.
BENCHMARK may assign its rights and obligations hereunder, but Customer shall not assign its rights or delegate its performance hereunder without the prior written consent of BENCHMARK, and any attempted assignment by the Customer without BENCHMARK’s prior written consent shall be void.
8. Insurance.
Customer acknowledges its sole responsibility for the care and protection of the Equipment following delivery and shall have the Equipment insured in favor of BENCHMARK against all hazards up to the market value of the Equipment, as such is determined by BENCHMARK. Prior to Equipment delivery, Customer will provide to BENCHMARK evidence satisfactory to BENCHMARK of adequate insurance coverage with a contractor's all-risk equipment floater, naming "BENCHMARK Equipment Company" as a named insured, and such coverage shall be maintained throughout the Rental Term. If Customer fails to provide BENCHMARK with such evidence of insurance, or fails to maintain such insurance during the Rental Term, BENCHMARK may declare the Customer in default or may, at its option, obtain insurance on Customer's behalf and Customer shall be obligated on demand to reimburse BENCHMARK in full for the cost of same.
Customer agrees to provide BENCHMARK with a certificate of insurance providing evidence of these coverages: Equipment Insurance with BENCHMARK listed as Loss Payee, General Liability and Automobile Liability, each with limits of at least $1,000,000 Per Occurrence. BENCHMARK shall be listed as Additional Insured on an attached separate Endorsement, and with Waivers of Subrogation in favor of BENCHMARK (on attached separate endorsement), Workers Compensation including Employer's Liability with limits of at least $1,000,000 and with Waiver of Subrogation in favor of BENCHMARK. Primary and Non Contributory Endorsement.
9. Legal Fees.
In the event of default, BENCHMARK may retain legal counsel to enforce its rights and remedies and Customer agrees to pay the fees and expenses of such legal counsel without regard to whether legal action is commenced.
10. Maintenance.
BENCHMARK’s acceptance of this Order is conditioned upon Customer’s signed acceptance and return of the applicable Maintenance Agreement for the Equipment. Customer agrees to comply fully with the Maintenance Agreement at its own expense, including without limitation daily maintenance requirements, regular oil changes, special maintenance following every 250 hours of operation, and other normal operating and maintenance expenses related to the care of the Equipment. Customer shall use the Equipment only for the purposes recommended by the Equipment manufacturer as indicated by the Maintenance Agreement and shall not load Equipment beyond the capacity recommended. Upon reasonable notice, BENCHMARK shall be permitted to inspect the Equipment and make copies of the books and records of Customer relating to the maintenance of the Equipment.
11. Liens and Subleases.
Customer will not, directly or indirectly, create, assume or suffer to exist any lien on or with respect to the Equipment, title thereto or any interest therein, or sublease, sell or otherwise dispose of its interest in the Equipment, without the prior written consent of BENCHMARK.
12. Taxes; Surcharges.
Customer agrees to pay all taxes and surcharges, including but not limited to sales, use, inventory, or similar taxes and governmental surcharges related to the rental or use of the Equipment. Except as may have been included above, such taxes and surcharges may be added to the rental rate. In addition, Customer agrees to pay all assessments, public charges, mechanics or materialman’s liens, and any other liens, which may be placed on or levied against the Equipment while in Customer's possession. If BENCHMARK pays any taxes, assessments, charges or liens incurred while the Equipment is in Customer’s possession or during the Rental Term, such payment shall be reimbursed on demand.
13. Return of Equipment.
At Customer’s option, Customer may request BENCHMARK to pick up the Equipment at the end of the Rental Term at Customer’s location, and in that event Customer agrees to pay BENCHMARK’s “Freight In” charge and any additional expenses. If the Equipment is not returned to BENCHMARK in proper condition and working order, normal wear and tear excepted, free and clear of all rights and liens of third parties, then Customer agrees to reimburse BENCHMARK on demand for all expenses incurred by BENCHMARK in returning the Equipment to its proper condition and good working order, or in paying any liens or eliminating any third party rights, as applicable. All logs and other data indicating Single Shift Operation hours and compliance with the Maintenance Agreement shall be provided to BENCHMARK upon return of the Equipment or at the end of the Rental Term.
14. Governing Law; Jurisdiction.
The validity, interpretation and performance of this agreement and any disputes connected herewith shall be governed and construed in accordance with the laws of the State of Texas. Any legal action or proceeding for the enforcement hereof shall be initiated exclusively in any court located in Tarrant County, Texas.
15. Miscellaneous.
This Order upon acceptance by BENCHMARK, together with the Maintenance Agreement, constitutes the entire agreement of the parties. Customer agrees BENCHMARK is not bound by any representations, promises or agreements made by any officer, agent or employee of BENCHMARK relative to this transaction which are not embodied herein. This agreement may be modified or rescinded only by a writing signed by both parties. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, explain or supplement this agreement shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or waiver shall be effected by the acknowledgement or acceptance of a purchase order or shipping instructions containing additional or different terms. No waiver by BENCHMARK or Customer with respect to any breach or default or of any right or remedy and no course of dealing shall be deemed to constitute a waiver of any other breach or default or of any other right or remedy, unless such waiver is in writing signed by the party to be bound.