1. Customer agrees to pay the stated rent, together with all other amounts due hereunder (together “Rent”) within 10 days following the invoice date without deduction or set-off. Any amount not paid when shall be subject to a late fee of 5% of the amount due.
  2. The “Term” of this Rental Agreement commences upon delivery of the Equipment to Customer (“Delivery Date”) and terminates on the date that Customer returns such item of Equipment to CTL in accordance herewith. If an initial term is not stated, it shall be 30 days and automatically renew, cancelable by Customer without notice by return of the Equipment in accordance herewith.
  3. CTL shall deliver and Customer shall inspect, and if satisfactory, accept delivery of the Equipment at the stated delivery location (“Delivery Location”). Customer shall be deemed to have unconditionally and irrevocably accepted each item of Equipment for all purposes hereof effective as of the earlier of (a) execution by an employee, representative or agent of Customer of a document evidencing delivery of such item of Equipment (“Delivery Receipt”); or (b) with respect to Equipment that an employee, representative or agent of Customer has taken possession of without executing a document evidencing delivery, the date of delivery set forth in a notice to Customer that such Equipment was delivered to such person (“Delivery Notice”), which notice may be delivered to Customer by email. Except as noted in the Delivery Receipt or Delivery Notice, as applicable, the Equipment shall be deemed delivered in good condition and operating order and free of damage. CTL’s delivery of Equipment may be subject to delay, which delay shall not constitute a default by CTL.
  4. If inspection or testing is required during the Term for Equipment that is a motor vehicle (“Vehicle”), Customer shall, at CTL’s direction, timely deliver the Vehicle to the applicable test station and take repossession upon the conclusion of registration and/or testing for the remaining Term.
  5. MAINTENANCE; ALTERATIONS. Provided no Event of Default has occurred and is continuing, CTL shall be responsible for performing on-site maintenance and repairs at a maintenance location designated by CTL and any en-route emergency maintenance and repairs during the Term. Such maintenance and repair shall include, without limitation, the replacement of tires, landing gear, brakes, lights, lift gate, etc. rendered unusable through normal wear. Flat tires, theft and damage other than normal wear and tear is not included and shall be at Customer’s expense. Repairs and service performed by CTL arising out of anything other than normal wear and tear will be billed to Customer at CTL’s then current labor rate. Repairs and service performed by CTL’s subcontractors or vendors arising out of anything other than normal wear and tear will be billed to Customer at actual cost plus 15%. Customer shall not make any alterations or additions (including lettering, painting and decals) to the Equipment. CTL and its agents shall have the right, during normal business hours, to enter the premises where the Equipment is located for the purpose of inspecting the Equipment. Upon request, Customer shall furnish current hubodometer, hour meter readings and other Equipment use data requested by CTL.
  6. USE AND OPERATION. Customer warrants and covenants that: (a) the Equipment shall be used only in the continental United States and Canada; (b) the Equipment shall not be operated by any person other than agents or employees of Customer, each warranted to be a careful, dependable operator not operating under the influence of alcohol or drugs, and, if the Equipment is a Vehicle, with a valid license to operate such Equipment; (c) Customer shall use each Vehicle designated as a storage Vehicle for storage purposes only; (d) Customer shall notify CTL in writing within 30 days following the change in the garage location of any Vehicle, as identified in the Schedule, and Customer shall not remove any other Equipment from the equipment location, as identified in the Schedule without CTL’s prior written consent; (e) Customer shall comply with all current and future statutes, regulations, rules, ordinances and orders of any governmental or quasi-governmental entity, including without limitation environmental statutes, regulations, rules, ordinances and orders, affecting the use, operation or maintenance of the Equipment (collectively “Applicable Laws”); (f) Customer shall comply with the Equipment manufacturer’s loading limitations and avoid abusive handling and concentrated or excessive loads; (g) Customer shall provide CTL with any operation data as may be required by any governmental agency and such data shall be true and accurate; (h) Customer shall not tamper with, disconnect or otherwise interfere with the operation of any hubodometer, hour meter or other Equipment usage monitoring device and shall promptly report any malfunction thereof to CTL; and (i) Customer shall not operate any Equipment that Customer has reason to believe is not in safe operating condition. In the event CTL incurs any fines, penalties or levies, including tolls and parking citations, arising in connection with a Vehicle during the Term, Customer shall reimburse such amount to CTL together with a 15% handling fee. Customer authorizes CTL to identify the location of Equipment with remote tracking devices and agrees not to remove or impair any such device.
  7. RISK OF LOSS; CASUALTY. From the Delivery Date until the Equipment is returned to CTL, Customer shall bear the entire risk of loss, damage, destruction and confiscation or impoundment with respect to the Equipment. If any Equipment becomes damaged beyond repair, lost, stolen or destroyed, or in the event of any condemnation or taking by a governmental authority (“Event of Loss”), Customer shall promptly notify CTL and pay to CTL within 10 days the Stipulated Loss Value and all accrued and past due Rent with respect to such Equipment. “Stipulated Loss Value” means the sum of (i) fair market value of the Equipment, as determined by CTL, and (ii) if the Equipment is a Vehicle, an additional amount equal to 115% of CTL’s unamortized acquisition, titling and other administrative costs with respect to the Vehicle, but in no event less than $300. Upon receipt of such payment Customer’s obligation to pay further Rent for such Equipment will cease and all of CTL’s right, title.
  8. At all times during the Term, Customer shall maintain, at its expense, the following insurance: (a) if the Equipment is a Vehicle, Commercial Auto Liability insurance and Commercial Auto Physical Damage or Trucker’s Liability insurance and Trucker’s physical damage policies with coverage for hired autos (trailers) for (i) bodily injury and property damage liability, with a minimum combined single limit of $l,000,000 per occurrence, and (ii) physical loss and damage providing collision and comprehensive coverage with limits equal to the replacement value of the Equipment; (b) if the Equipment is not a Vehicle, all-risk casualty insurance, including without limitation, loss by fire (including extended coverage), theft and damage, in an amount not less than the replacement value of the Equipment; and (c) Commercial General Liability for contractual liability coverage for hold harmless agreements, with a minimum combined single limit of $l,000,000 per occurrence. Customer shall cause CTL, and, upon request, its successors and assigns, to be named sole loss payee and additional insureds, as applicable, under such insurance policies. Each policy shall provide that the insurer will endeavor to provide at least 30 days (10 days for failure to pay premiums) prior written notice to CTL of cancellation, and no policy shall contain a deductible in excess of $25,000 for liability or $1,000 for casualty or damage to the Equipment. Customer shall provide to CTL upon request current certificates of insurance evidencing such insurance coverage, and copies of the insurance policies. Each such insurance policy and certificate of insurance shall be in form and substance and from an insurer reasonably acceptable to CTL. Customer appoints CTL as Customer’s attorney-in-fact to make and settle all insurance claims in CTL’s sole discretion, receive payment of and execute or endorse in Customer’s name all documents, checks or drafts therefor, take the proceeds thereof and apply the same to any damage or loss to CTL’s interests, and Customer agrees that CTL may do all of the foregoing. If any insurance payment for damage or loss is insufficient to cover Customer’s obligations hereunder, Customer shall remain liable to CTL for the difference.
  9. HOLD HARMLESS. Except to the extent attributable to the gross negligence or willful misconduct of CTL, Customer shall defend, indemnify and hold harmless CTL, its employees, officers, directors, agents and assignees from and against any and all claims, actions, suits, proceedings, costs, expenses (including, without limitation, court costs, witness fees and attorneys’ fees), damages, obligations, judgments, orders, penalties, fines, injuries, liabilities and losses, including, without limitation, actions based on strict liability arising out of or in connection with any matter involving each Rental Agreement and the Equipment, including without limitation: (a) any loss or damage CTL may sustain as a result of any damage to or loss of any item of Equipment due to any cause, including without limitation collision, fire, lightning, theft, explosion, flood; (b) any loss or damage resulting from the death or injury to, or damage to the property, including cargo, of any person as a result, in whole or in part, of the use or condition of any item of Equipment, whether arising in strict liability or otherwise; (c) any loss, claim, liability, damages, expense or disbursement, penalty or fine, disposal, remediation or corrective action cost, or forfeiture or seizure that may arise in whole or in part from the use or condition, actual or alleged, of any item of Equipment or the failure, actual or alleged, of Customer to use and maintain any Equipment or, as applicable, timely make it available for maintenance by CTL, as provided under the Rental Agreement and in compliance with Applicable Laws; (d) any claim, lien or liability arising from work performed or for materials supplied in connection with the operation or maintenance of any item of Equipment; and (e) Customer’s breach of its obligations under the Rental Agreement.
  10. HAZARDOUS MATERIALS. Except as permitted in the Schedule, Customer shall not transport, load or store in or on any Vehicle any medical wastes, hazardous wastes, infectious materials, poison gases, radioactive materials, or explosives (collectively “Restricted Materials”); provided that Customer may use Vehicles for transportation of hazardous materials packaged for retail consumer sale. If CTL determines that Customer has used any Vehicle for prohibited purposes without CTL’s written consent, CTL may require Customer to purchase the Vehicle at the Stipulated Loss Value. Upon return, CTL may require Customer to be certified as free of Restricted Materials by a third-party inspector acceptable to CTL. If any Vehicle is used to haul or store Restricted Materials, Customer shall maintain, in addition to the insurance required in Section 8, a policy for Environmental Impairment Liability or Pollution Liability with a minimum combined single limit of not less than five million ($5,000,000) per occurrence naming CTL and its assigns as additional insured.
  11. TAXES AND FEES. In addition to the Rent, Customer shall pay, or reimburse CTL for payment of, any and all fees, fines, penalties, sales and use taxes and other taxes (excluding personal property taxes) levied against or based upon the use of the Equipment or this Rental Agreement.
  12. The occurrence of one or more of the following shall constitute an “Event of Default”: (a) Customer fails to pay any Rent within 10 days following its due date or any other amount due under this Rental Agreement within 30 days following notice of non-payment; (b) Customer fails to perform any other term or condition of this Rental Agreement and such failure remains unremedied for more than 10 days after CTL has requested Customer to perform, except if such default arises due to noncompliance with Customer’s insurance obligations, which default shall become effective immediately; (c) Customer becomes insolvent or becomes subject to any bankruptcy proceedings; or (d) Customer defaults under any other agreement with CTL or any affiliate of CTL;.
  13. Upon the occurrence of an Event of Default, CTL may, at its option and without demand or notice to Customer, do any one or more of the following, with or without terminating this Rental Agreement: (a) pay all amounts required to be paid or perform or cause to be performed all obligations required to be performed by Customer thereunder and charge Customer as additional rent, the amount paid or the reasonable value of all services performed therefor plus 15%; (b) suspend CTL’s maintenance and repair obligations; (c) enter upon any premises where Equipment is located and take immediate possession of, or render unusable, any such Equipment, without demand or notice and without any court order or other process of law, and no such action shall constitute a termination of this Rental Agreement; or (d) require Customer at its sole cost to promptly return the Equipment to CTL at such locations as CTL may designate. Any amount not received by CTL within ten days following its due date shall be subject to interest at 1-1/2% per month, but no more than the maximum legal rate. No termination, repossession or other act by CTL after default by Customer shall relieve Customer from any of its obligations hereunder. In addition, Customer shall pay to CTL on demand all excess mileage, tread wear, brake wear and operating hours in accordance herewith, and all fees, costs and expenses incurred by CTL in connection with the enforcement of its rights hereunder including, without limitation, reasonable attorneys’ fees. The remedies provided herein are cumulative. If CTL takes possession of any item of Equipment with other property contained in, upon or attached to such item of Equipment, CTL may take possession of such property and hold it in CTL’s possession or in public storage for the account and at the expense of Customer or dispose of such property with no further liability.
  14. Customer shall not acquire any right, title or equitable interest in any item of Equipment other than the right to use the Equipment in accordance herewith. Customer shall not pledge or encumber any Equipment or in any manner whatsoever nor create or permit to exist any levy, lien or encumbrance thereof or thereon except those created by or through CTL.
  15. WARRANTY DISCLAIMER. Except as set forth in the Delivery Receipt or Delivery Notice, Customer acknowledges receipt of each item of Equipment in good and satisfactory condition. CUSTOMER RENTS THE EQUIPMENT FROM CTL “AS IS, WHERE IS”. CTL HAS MADE NO REPRESENTATIONS OR WARRANTIES AS TO ANY MATTER WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE WITH RESPECT TO ANY EQUIPMENT, MAINTENANCE OR REPAIR WORK; (B) CTL SHALL NOT BE DEEMED TO HAVE MADE, BE BOUND BY OR LIABLE FOR, ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY THE EQUIPMENT SUPPLIER; AND (C) CTL SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT.
  16. LIMITATION OF LIABILITY. CTL shall not be liable in connection herewith for incidental, special, indirect, consequential or exemplary damages of any kind, including without limitation, lost profits and business interruption damages, suffered by Customer or any other person, including without limitation (i) loss or damage to personal property of Customer in Vehicles at any time, (ii) loss of business of Customer due to delay or failure to deliver Equipment, and (iii) the failure of any Equipment to operate at any time. Customer shall defend, indemnify and hold CTL and its affiliates harmless from and against all claims arising out of any such losses or damages except to the extent caused by CTL’s gross negligence or willful misconduct. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND AGAINST CTL AND ITS ASSIGNS INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY AND PROPERTY DAMAGE WHICH MAY BE SUSTAINED AS THE RESULT OF ANY DEFECT IN ANY EQUIPMENT, WHETHER BASED IN STRICT LIABILITY OR OTHERWISE.
  17. EQUIPMENT RETURN. Customer shall return the Equipment, together with all license plates, registration certificates, documents of title and or similar documents, to CTL in good condition, with no damage or improper repairs, normal wear and tear alone excepted, and free and clean of all debris, decals and decal residue (“Return Conditions”). Customer shall return each item of Equipment to the Delivery Location. Any Equipment not returned in the Return Condition shall remain subject to Rent for a period reasonably required to restore such Equipment to the Return Condition. Customer shall reimburse CTL for all costs incurred by CTL to return Equipment to the Delivery Location in the Return Condition at cost plus 15%. Upon termination of any Equipment, Customer shall pay to CTL the mileage, hours, tread-wear and brake-wear charges, if any, set forth herein.
  18. Customer may not assign, transfer, sell, sublease, pledge or otherwise dispose (together, “Transfer”) of this Rental Agreement, any Equipment or any interest therein without CTL’s prior written consent, not to be unreasonably withheld. Any purported Transfer in breach hereof shall be null and void. Consent to a Transfer does not constitute a release of Customer unless agreed to in writing by CTL.
  19. In the event that Customer shall hold over any Equipment upon CTL’s demand to Customer to return the Equipment following the initial term, CTL may by written notice increase the Initial Rent by up to 100%.
  20. ENTIRE AGREEMENT. This Rental Agreement constitutes the entire agreement of the Parties with respect to and supersedes all prior agreements and understandings of the Parties with respect to the subject matter thereof and shall be binding upon each party and their respective representatives, successors, and assigns. This Rental Agreement may not be amended or altered in any manner except by a writing signed by duly authorized representatives of Customer and CTL. Purchase orders and other ordering documentation issued by Customer are for Customer’s administrative convenience only and do not constitute a part of this Rental Agreement. Equipment may be supplied by third-party suppliers. In the event the Delivery Receipt is in the form of a rental agreement or other third-party contract, such document shall be solely for the purposes of identifying Equipment information, including Equipment condition at delivery, and no other terms or conditions set forth therein shall constitute part of this Rental Agreement.
  21. GOVERNING LAW; JURY WAIVER. This Rental Agreement shall be governed by the internal laws (as opposed to conflicts of law provisions) of New Jersey. The Parties hereby consent to non-exclusive jurisdiction in courts located in New Jersey and waive any objection relating to improper venue or forum non-conveniences with respect to any such court. CUSTOMER AND CTL HEREBY EXPRESSLY WAIVE ANY RIGHT TO DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION HEREWITH.
  22. This Rental Agreement may be executed in counterparts. If delivered electronically, the version of any document delivered by CTL shall be the definitive version. CTL may insert missing information into this Rental Agreement or related document, including without limitation Equipment identification information, dates, contact information and Vehicle condition.
  23. In the event CTL requires a security deposit, Customer shall not be entitled to interest upon such deposit, CTL shall not be obligated to segregate such deposit, and CTL may apply the deposit to any of Customer’s obligations hereunder. The failure of CTL to insist at any time upon the strict performance of any of the terms, covenants or conditions hereof or to exercise any right or remedy, or the waiver by CTL of any breach of any of the terms, covenants or conditions hereof shall not be construed as thereafter waiving any such terms, covenants, conditions, rights or remedies. If any provision hereof shall be prohibited by or invalid under law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions hereof.