Legal Terms & Conditions

RENTAL CONTRACT TERMS & CONDITIONS

CREDIT TERMS

These terms and conditions are in addition  to the terms of the LESSOR’s Standard  Credit Agreement Terms which are incorporated herein by reference as if fully set forth herein and can be found at www.gregorypoole.com. Customer agrees to be bound by electronic communications relating to transactions with Gregory  Poole Equipment Company.

CONDITIONS

The personal property (hereafter called “EQUIPMENT”) described  herein shall include all replacement parts, additions, repairs and accessories incorporated therein or affixed thereto.

TITLE/TRUE LEASE

Gregory Poole Equipment Company, with its office and place of business located at 4807 Beryl Road, Raleigh, North Carolina 27606 (together with its successors and/or assigns, collectively, hereafter called “LESSOR”) hereby leases to the LESSEE  identified  herein and the LESSEE  hereby takes and hires from the LESSOR  the personal property  described  on the front of this Rental Contract.  Title to EQUIPMENT at all times shall be and remain in LESSOR  and LESSEE  shall keep EQUIPMENT and title thereto free and clear of any and all liens or encumbrances. LESSOR  may elect to file financing  statements pursuant  to Section 9-505 of the UCC. LESSEE  ACKNOWLEDGES THAT THIS RENTAL  CONTRACT CONSTITUTES A TRUE LEASE. LESSEE  grants LESSOR  a specific power of attorney  for LESSOR  to use as follows: LESSOR  may sign and file on LESSEE’S behalf any document LESSOR  deems necessary  to perfect or protect LESSOR’S interest in the EQUIPMENT or pursuant  to the Uniform  Commercial Code.

RENT

RENT for EQUIPMENT shall be paid by LESSEE  to LESSOR  in the amounts  and at the time stated at the office of the LESSOR  at the address above stated or to such other person, firm, or corporation or at such other place as may from time to time be directed  in writing by LESSOR.

USE OF AND TRANSPORTATION OF EQUIPMENT

LESSEE  shall not cause or permit EQUIPMENT to be removed from or taken out of the state in which EQUIPMENT is delivered  except upon the prior written consent  of LESSOR. LESSEE  shall not permit or cause EQUIPMENT to be used or operated  by anyone other than competent, qualified  personnel  and LESSEE shall be liable for and shall pay all costs of operation, transportation and use of EQUIPMENT and will not permit or cause EQUIPMENT to be used in violation  of EQUIPMENT’S intended  use. EQUIPMENT shall not be used in connection with a nuclear facility or hazardous  application. LESSEE  shall not cause or permit the EQUIPMENT to become affixed or attached to any real property  or any structures erected thereon.  Upon the expiration or termination of this Rental Contract,  LESSEE  shall deliver EQUIPMENT to LESSOR  unencumbered by any lien or encumbrance and in as good condition  as when received hereunder  by LESSEE, reasonable wear and tear resulting  from proper use thereof excepted. By entering  into this Rental Contract,  LESSEE  represents and warrants  to LESSOR  that LESSEE  will only permit qualified  and properly trained persons to use, operate or transport  the EQUIPMENT. LESSOR makes no representations and warranties whatsoever about the proper and safe use, operation or transportation of the EQUIPMENT. LESSEE  should contact the specific manufacturer of the EQUIPMENT for questions or information on the safe and proper use, operation and transportation of the EQUIPMENT and refer to the operator’s manual.  If LESSEE  is not provided with an operator’s manual,  it is LESSEE’S responsibility to request it from LESSOR.

RENTAL  CONTRACT TERM

(a) The Rental Contract  terms shall begin on the date the EQUIPMENT is picked up by LESSEE  or is delivered  by LESSOR and shall end on the date all of the EQUIPMENT is returned to LESSOR’S address indicated on the face side hereof; provided,  however,  that the term hereof in no event shall be less than the “minimum term” indicated  on the face side hereof. (b) Conversion. On the final return to LESSOR  of the EQUIPMENT, LESSEE  hereby agrees to return all items of EQUIPMENT. If LESSEE  does not return all items of EQUIPMENT at the time of final return, those items not returned  shall, at LESSOR’S option, be deemed sold to LESSEE  and automatically converted to a sale to LESSEE  at the then current list price of manufacturer thereof. Upon receipt of the sales invoice converting to sale the items of EQUIPMENT which were not returned,  the LESSEE  hereby agrees to pay to LESSOR  the amount  of the sale as stated on the sales invoice, without any right of set off, recoupment, counterclaim, deduction, defense  or abatement. If not paid in full upon receipt of invoice, the unpaid balance shall bear interest at the highest rate allowed by law from the invoice date until paid in full; and (c) LESSOR  will make reasonable efforts to meet the delivery date, if any, stated on the face hereof and to meet any EQUIPMENT pick up date that may be scheduled  hereafter, but shall not be liable for any failure to meet such dates.

COMPLIANCE WITH LAWS: TAXES.

LESSEE  shall comply with and conform  to all laws, ordinances and regulations that shall relate to the possession, use, operation, transportation or maintenance of EQUIPMENT and shall save LESSOR harmless  from and against  any and all actual or asserted  violations thereof. LESSEE  is responsible for payment  of any and all ad valorem taxes assessed  on the EQUIPMENT during the term of this Rental Contract.  LESSOR  shall pay such taxes to the taxing authority  and shall compute,  on a pro rata basis, LESSEE’S responsibility for such taxes, based on the period of the tax year in which LESSEE  is in possession of the EQUIPMENT. Upon LESSEE’S receipt of a statement from LESSOR  indicating LESSEE’S share of such taxes, LESSEE  shall immediately pay such amounts  to LESSOR  and such amounts  shall constitute additional RENT payable under this Rental Contract.  LESSEE  shall pay as additional RENT any amount from assessment by any State or Municipal body against the LESSOR  for sales, use and/or gross receipts  taxes with respect to the EQUIPMENT. Such payment  shall be made at the time and in manner requested by LESSOR.

INSURANCES

(A) Public Liability and Property  Damage Liability Insurance (Third Party). LESSEE  will, at its own expense and at all times during the term of this Rental Contract  maintain in force Commercial General Liability insurance  with a combined, single limit for bodily injury, including death, and property damages of  $1,000,000.00 on a primary and not excess or contributory basis, for LESSEE’S liability for damages sustained  by any person, including,  but not limited to, agents or employees of LESSEE, as a result of the maintenance, use, operation,  possession, storage,  erection,  dismantling, servicing or transportation of EQUIPMENT. LESSEE  will, on demand, furnish LESSOR  a Certificate of Insurance evidencing such insurance,  endorsed  to provide that such insurance  may not be canceled  or materially  modified except on 30 days prior written notice to LESSOR  at the LESSOR’S branch from which the EQUIPMENT was rented. LESSEE  agrees to abide by all terms and conditions  of said insurance.  LESSEE,  its agents and employees will cooperate  fully with LESSOR  and LESSEE’S insurer in an investigation, prosecution or defense of any claim or suit arising therefrom  and will do nothing to impair or invalidate  the applicable insurance  coverage.  LESSOR’S acceptance of LESSEE’S Certificate of insurance  will not be deemed a waiver, limitation  or modification of LESSEE’S insurance,  indemnity  or other obligations under the Rental Contract or LESSEE’S liability hereunder. (B) Property  Insurance  for LESSOR’S EQUIPMENT. LESSEE  will, at its own expense and at all times during the term of this Rental Contract,  maintain in force Property  insurance  in an amount adequate to cover any damages  to, or loss of, the EQUIPMENT. LESSEE’S policy must expressly  cover non-owned equipment while in LESSEE’S care, custody or control. (C) Auto Liability Insurance with a combined single limit per occurrence of no less than $1,000,000.  LESSEE  will, on demand,  furnish LESSOR  a Certificate of insurance evidencing such insurance  and endorsed  to provide that such insurance  may not be canceled  or materially modified  except on 30 days prior written notice to LESSOR  at the LESSOR’S branch from which the EQUIPMENT was rented. The amount, terms and conditions  of the insurance  required by this sub-paragraph must be acceptable to LESSOR. LESSEE  agrees to abide by all of the terms and conditions of such insurance. If LESSEE’s coverage lapses or its COI expires, LESSEE agrees LESSOR will charge LESSEE for REP and RLP coverages and LESSEE agrees to pay for such coverage until such time as LESSEE’s insurance is restored and its COI is updated.

LIABILITY; INDEMNIFICATION

LESSEE  shall indemnify and save LESSOR  harmless  from and against  (A) any and all damage  or injury to or loss of EQUIPMENT or any part thereof;  and (B) any and all claims, damages, judgments, costs and expenses  (including, without limitation, reasonable attorneys’ fees incurred  by LESSOR) and liability whatsoever (including, without limitation, any personal  injury, bodily injury, death or damage  to any persons  or property)  occasioned by or resulting from the use, operation, possession, or transportation of EQUIPMENT. The amount  of damage for any loss of or injury to EQUIPMENT shall be based upon the then actual reasonable market value and without regard to the RENT paid or accrued hereunder.

RENTAL EQUIPMENT, LIABILITY, AND CARGO/IN-TRANSIT PROTECTION PROGRAMS

THE RENTAL EQUIPMENT PROTECTION PROGRAM (“REP”), RENTAL LIABILITY PROTECTION (“RLP”), AND CARGO/IN-TRANSIT PROTECTION PROGRAM (“CIT”) ARE NOT INSURANCE POLICIES. REP, RLP AND CIT ARE LOSS DAMAGE WAIVER PROGRAMS. REP, RLP and CIT cover construction, forestry, power, agriculture, material handling, and other non-excluded equipment. REP, RLP, and CIT exclude vehicles licensed for the road while in transit and underground mining. REP is a waiver of claims to the LESSOR for perils covered by REP to the EQUIPMENT. It is not insurance for the LESSEE but can serve to supplement or replace physical damage insurance for the LESSEE on rented equipment belonging to the LESSOR. RLP is a waiver of claims to the LESSOR for perils covered by RLP to a third party, if and to the extent that the contractor’s equipment rented from this facility is the cause of the incurred damage, operated by LESSEE or LESSEE’s employee, during the rental period, on the approved jobsite. LESSEE will remain liable to the LESSOR in all events for: (a) damage or loss caused in whole or in part by: (i) breach of any provision of this Contract; (ii) failure to return Rented Item(s); (iii) malicious mischief or illegal acts; (iv) use of any Rented Item in violation of any policy of insurance. CIT is a waiver of claims to the LESSOR for covered perils to a third party caused during the LESSEE’s transportation of the Equipment.

1) Coverage up to $500,000 per occurrence for REP, up to $1,000,000 for RLP. If you have purchased our Rental Equipment Protection, LESSEE shall have no liability to the LESSOR for physical damage to the applicable Rented Item(s) up to the covered amount, except that you shall remain liable to the LESSOR in all events for damage or loss caused in whole or in part by: (a) your breach of any provision of this Contract; (b) Criminal/Fraudulent Acts (c) Loss of use – REP does not cover loss of use while the equipment is being repaired; (d) Mechanical/Electrical breakdown; (e) Missing property; (f) Wear and Tear; (g) Weight of Load; (h) damage to tires, unless caused by a covered peril; (i) Pollution; (j) Nuclear Waste; (k) Corrosion; (l) Civil Authority.

2) Customer Contribution. In the event of a claim, Lessee shall be responsible for the following deductible: a) $1,000 for equipment valued up to $25,000; OR

1. b) $2,500 for equipment valued greater than $25,000

3) Cost. LESSEE shall pay LESSOR the applicable percentage of the rental contract value to cover rented equipment with REP.

4) Covered perils. The coverage includes, but is not limited to, (a) accidental damages; (b) collisions; (c) overturns/rollovers; (d) falling objects; (e) fire; (f) theft; (g) vandalism; (h) flood (submersion and Acts of Nature); (i) earthquake; (j) hail; (k) wind; (l) tornado; (m) other non-excluded perils.

5) Subrogation. LESSOR shall not subrogate for perils covered by REP.

*REP does not cover any damages that occur underground under any circumstances.

CONDITION UPON DELIVERY

LESSEE  shall be conclusively presumed  to have accepted  EQUIPMENT in the condition  existing at the time of delivery hereunder  unless within forty-eight (48) hours thereafter LESSEE  shall notify LESSOR  of any actual existing defects and of LESSEE’S refusal to accept EQUIPMENT in its then condition  and thereupon LESSOR, if it shall so elect, without liability to LESSEE, may arrange to correct any such defect of EQUIPMENT, or may pay to LESSEE  any RENT, subject to offsets paid hereunder  and terminate this Rental Contract.

REPAIRS; MAINTENANCE

LESSEE  at all times shall maintain  EQUIPMENT in good repair and operating condition  and will not add, change,  alter or remove any markings, insignia,  lettering  or numbering  on the above described EQUIPMENT. LESSEE  agrees to check and maintain  engine oil, radiator air flow, water, air intake filter, L.P. gas, cylinders and fuel daily. LESSEE  is responsible for all periodic maintenance, fuel, and missing parts and any other maintenance and care as reasonably requested by LESSOR. Qualified  personnel, as approved  by LESSOR, shall make all repairs and replacements only, for such purposes  only standard  parts and accessories will be used. LESSEE  will pay all claims arising from the LESSEE’S abuse of the EQUIPMENT or from the LESSEE’S failure to maintain  the equipment, ordinary wear and tear expected. LESSEE  shall be responsible for any tire failures or abnormal  tire wear.

LESSOR  LIABILITY

In no event shall LESSOR  be liable for special or consequential damages  whatsoever or however caused.

INSPECTIONS

LESSEE, unless otherwise agreed by LESSOR, shall advise LESSOR  of the exact location of EQUIPMENT. LESSEE  shall give LESSOR  immediate notice of any attachment or other judicial proceeding affecting  EQUIPMENT and shall indemnify and save LESSOR  harmless  from and against any and all loss or damage that may result therefrom. LESSOR, for the purpose of inspection, at all reasonable times, may enter upon any building,  structure, or place where EQUIPMENT is located and LESSOR  may remove said EQUIPMENT, without prior notice to LESSEE, if the EQUIPMENT, in the judgment  of LESSOR, is being used beyond its capacity  or the same is in any manner being improperly  cared for or abused.

WARRANTIES

LESSOR  MAKES  NO REPRESENTATION, GUARANTEE, OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO QUALITY, AND/OR  FITNESS FOR PARTICULAR PURPOSES OR OTHERWISE, WHICH EXTEND  BEYOND  THE DESCRIPTION OF EQUIPMENT, UNLESS  REDUCED TO WRITING AND MADE A PART OF THIS RENTAL  CONTRACT, it being agreed that the EQUIPMENT is being leased “As Is” and in no event shall LESSOR  be liable to LESSEE  for anticipated profits or incidental or consequential damages. This Rental Contract,  in conjunction with LESSEE’S signed and executed  Application for Credit and Standard Credit Agreement, constitutes the entire agreement between  LESSOR  and LESEEE  and no oral agreement, guaranty, promise,  condition, or representation heretofore, made or claimed to have been made by LESSOR  shall be binding upon LESSOR  unless herein expressly stated.

EVENTS  OF DEFAULT

Default shall mean any breach of this Rental Contract by LESSEE. In the event LESSEE shall default hereunder or shall become insolvent  or shall cease doing business as a going concern or a petition is filed by or against  LESSEE  under the U.S. Bankruptcy Act or any amendment thereof or if a petition is filed by or, against LESSEE  under state court receivership statutes  or if LESSEE  shall make an assignment for the benefit of creditors  or if LESSEE  shall attempt to remove or sell, transfer,  or encumber  or part with possession of EQUIPMENT, then LESSOR, without notice or liability or legal process,  may enter into any premises  where said EQUIPMENT may be located and repossess  the same, disconnecting and separating EQUIPMENT from any other property  and using all force necessary  or permitted by applicable  law, and LESSEE  hereby expressly  waives all rights to possession of EQUIPMENT and any and all claims for injury or loss sustained or suffered  by LESSEE  by reason of any such repossession of EQUIPMENT by LESSOR. In the event legal action is necessary  to enforce the rights of LESSOR  hereunder, LESSOR  shall be entitled to recover reasonable attorneys’ fees as well as other costs of collection in accordance with the laws in the state in which this Rental Contract  is executed.

LESSOR’S REMEDIES ON DEFAULT

Upon the occurrence of an Event of Default, LESSOR  shall have all the rights and remedies  provided by applicable  law and by this Rental Contract.  Notwithstanding that this Rental Contract  is a lease and title to the EQUIPMENT shall at all times remain in LESSOR. LESSOR  may nevertheless at its option choose those rights and remedies  of a secured party under the Uniform  Commercial Code. In addition,  LESSOR, at its option, may:

(a) declare all unpaid RENT and other sums due and to become due hereunder  immediately due and payable;  (b) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce  performance by LESSEE  of any and all covenants of this Rental Contract  and to recover damages  for the breach thereof; (c) demand that LESSEE  deliver the EQUIPMENT forthwith  to LESSOR at LESSEE’S expense at such place as LESSOR  may designate; and (d) without notice, liability or legal process,  enter by itself and/or its agents into any premises  of or under control or jurisdiction of LESSEE or any agent of LESSEE  where the EQUIPMENT may be or by LESSEE  is believed to be, and repossess all or any item thereof, disconnecting and separating all thereof from any other property  and using all force necessary  or permitted by applicable  law so to do, LESSEE  hereby expressly  waiving all further rights to possession of the EQUIPMENT and all claims for injuries suffered  through or loss caused by such repossession. Notwithstanding any recovery of the EQUIPMENT by LESSOR, LESSOR  shall, nevertheless, also be entitled to recover immediately as liquidated damages  for loss of the bargain,  and not as penalty,  any unpaid RENT that accrued on or before the occurrence of the Event of Default plus an amount equal to the difference between  the present value, as of the date of the occurrence  of such Event of Default, of the aggregate RENT reserved hereunder  for the unexpired  term of this Rental Contract  and the then present value of the aggregate rental value of all EQUIPMENT for such unexpired  term which the LESSOR  reasonably estimates to be obtainable for the use of all of the EQUIPMENT during such unexpired  term. If any statute governing  the proceeding in which such damages  are to be proved specifies the amount of such claim, LESSOR  shall be entitled to prove as and for damages  for the breach an amount equal to that allowed under such statute. The provisions  of this paragraph  shall be without prejudice  to any rights given to LESSOR  by such statute to prove for any amounts  allowed thereby.  Should any proceedings be instituted  by or against LESSOR  hereunder  and/or for possession of any or all of the EQUIPMENT or for any other relief, LESSEE  shall pay the costs and expenses  incurred by LESSOR  in connection therewith  including, without limitation, attorneys’ fees and other professional fees incurred by LESSOR. No remedy of LESSOR  hereunder  shall be exclusive  of any remedy herein or by law provided,  but each shall be cumulative and in addition  to every other remedy.

ASSIGNMENT AND SUBLETTING

LESSEE  shall not assign or in any manner transfer this Rental Contract  or any estate, interest,  or benefit therein or sublet said EQUIPMENT or permit the use of the same by any one other than LESSEE, its agents and employees without the prior written consent  of LESSOR. Consent  by LESSOR  to any assignment or transfer under this Rental Contract  shall be limited to the specific assignment or transfer of which LESSOR’S consent  is sought and shall not constitute a waiver, release or consent to any future assignments or transfers on the part of LESSOR.

EFFECT OF TERMINATION/ACCELERATION CLAUSE

In the event LESSOR shall terminate this Rental Contract or shall terminate LESSEE’S possession of EQUIPMENT prior to the expiration of the TERM, the RENT shall not abate by reason thereof or for any other reason and unpaid installments of RENT shall bear interest from the due date thereof at the highest lawful rate. At any time beyond the minimum rental period, the term of which is described above, LESSOR reserves the right to terminate this Rental Contract upon five (5) days written notice to LESSEE. LESSOR further reserves the right to retake possession of the EQUIPMENT without prior notice to LESSEE.

CONSTRUCTION / MODIFICATION

This Rental Contract shall be construed in accordance with the laws of the state of North Carolina. This Rental Contract contains the entire agreement of the parties and cannot be modified except in a writing signed by LESSOR. Upon thirty (30) days written notice to LESSEE, LESSOR reserves the right to make such changes to the terms of the Rental Contract, including, but not limited to, changes in the Rental Rates and Overtime Usage charges, as LESSOR shall deem necessary.

NON-WAIVER

Failure of LESSOR to insist on strict performance of any of the covenants or agreements set forth herein shall not be construed to be a waiver of any such or other covenants or agreements and the same shall remain in full force and effect.

PAYMENT TERMS/FINANCE CHARGE

Rental payments are due the first day of each rental term (cash customers). Rental payments, which are not paid within 30 days of the due date, shall be subject to a Finance Charge computed on such account balance by a “Periodic Rate” equal to the highest rate permitted by law.

RENTAL CONTRACTS WITH PURCHASE OPTION

In the event that this Rental Contract contains a purchase option on the Front Side hereof, LESSEE shall, in addition to the purchase price, maintenance, repairs and other items set forth in the Rental Contract including these Terms and Conditions, be responsible for the payment of any local, state and federal taxes payable in connection with such purchase and sale.