1. AGREEMENT. The Equipment Quotation and these Equipment Rental Terms & Conditions comprise of the complete agreement (the “Agreement”) between Dallas Durable specialties Inc, Inc., a Texas corporation d/b/a Durable specialties Inc, 2757 N. Westmoreland Road, Dallas, Texas 75212 (“DLB”) and the undersigned lessee (the “Lessee”).
2. PAYMENT. Payment terms for the equipment (the “Equipment”) are stated on the Equipment Rental Invoice.
3. OWNERSHIP. The Equipment is, and will at all times remain, the property of DLB; and Lessee will have no right, title or interest in such Equipment.
4. CARE AND OPERATION OF EQUIPMENT. Lessee shall use the Equipment solely for commercial or business purposes of Lessee and in compliance with all laws, rules and regulations of any jurisdiction where it is used or located, including, but not limited to, registration and/or licensing requirements.
5. MAINTENANCE AND REPAIR. Lessee shall, at its expenses, maintain the Equipment in good repair and operating condition and keep the Equipment in compliance with any and all warranty requirements and as required or recommended by the manufacturer’s manuals and instructions and any regulations of any Federal, state and municipal laws, regulations and ordinances. Lessee shall not make any alterations to, additions to, modifications to or deletions from the Equipment without the prior written consent of DLB.
6. LESSEE’S INSURANCE REQUIREMENTS. Lessee agrees to obtain and maintain at all times during the term of this Agreement, at its own cost and expense, insurance coverage with the terms and of the types and in such amounts and coverages as required by DLB through an insurer acceptable to DLB. Lessee shall provide DLB certificates of insurance evidencing each of the coverage naming DLB as an additional insured loss payee and certificate holder; and providing DLB thirty (30) days’ prior written notice of cancellation, policy change and/or failure of renewal by Lessee.
7. ACCIDENT-RELATED MATTERS. Lessee shall be responsible for all lost, stolen, damaged, and/or missing equipment. In the event of an accident or casualty loss, including, but not limited to, theft, destruction, or damage to the Equipment from any cause whatsoever, Lessee shall immediately notify DLB, and further notify the appropriate policing jurisdiction of the full details thereof, including the names and addresses of all parties and witnesses known to Lessee. Lessee shall not accept any settlement from an insurer without the prior express written approval of DLB. Lessee shall bear the entire risk of loss in the event of a casualty loss. A casualty loss shall not relieve Lessee of any obligation under this Agreement.
8. RETURN OF EQUIPMENT. Upon expiration or termination of this Agreement or demand by DLB made pursuant to an Event of Default described in this Agreement, Lessee shall return the Equipment to DLB. The Equipment must be returned in the same condition as when delivered, reasonable wear and tear excepted.
9. WARRANTY AND DISCLAIMER OF WARRANTY. DLB WARRANTS THAT THE EQUIPMENT IS IN GOOD WORKING CONDITION, BUT MAKES NO FURTHER WARRANTIES, EXPRESS OR IMPLIED. DLB DISCLAIMS ANY OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR REPRESENTATIONS CONCERNING: THE MERCHANTABILITY OF THE EQUIPMENT; THE FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP IN THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, RULE OR SPECIFICATION; OR THE ABSENCE OF ANY LATENT DEFECTS IN THE EQUIPMENT. LESSEE ACCEPTS RESPONSIBILITY WITH RESPECT TO ALL SUCH RISKS, AND DLB WILL HAVE NO RESPONSIBILITY THEREFOR.
10. WAIVER AND INDEMNITY. DLB will have no responsibility for liability to Lessee, and Lessee hereby waives any and all claims against DLB, with respect to any of the following, regardless of any negligence of DLB: (a) any liability, loss or damage caused directly or indirectly by the Equipment, any deficiency or defect (latent or otherwise) therein, or any other circumstances in connection therewith; (b) the use, operation or performance of the Equipment or any risks relating thereto; (c) any interruption of service, loss of business or anticipated profits or consequential damages; or (d) the delivery, operation, servicing, maintenance, repair, improvement or replacement of the Equipment. Lessee will indemnify and defend DLB against, and hold DLB harmless from, any and all claims, losses, actions, damages, expenses (including reasonable attorney’s fees), obligations, liabilities or liens (collectively, “Claims”), whether foreseeable or unforeseeable, arising out of this Agreement or the ownership, lease, possession, operation, condition, return or use of the Equipment, regardless of the reason therefore and including, without limitation, any Claims arising under the doctrine of strict liability or by operation of law. The provisions of this section shall survive the termination of this Agreement.
11. FINES. Lessee will be responsible and will hold DLB harmless from all fines, forfeitures, or penalties incurred violations that occur in connection with the operation of the Equipment.
12. TERMINATION. This Agreement may be terminated as follows: (a) the occurrence of any one of the following events shall constitute default under this Agreement (an “Event of Default”): (i) the failure by Lessee to make any required payment(s) under this Agreement when due or failure by Lessee to pay, when due, any other sum payable hereunder by Lessee; (ii) the failure by Lessee to perform any other term, covenant or requirement of this Agreement that is not corrected within ten (10) days after written notice of the violation is given; (iii) the subjection of any of Lessee’s property to any levy, seizure, assignment, application or sale for or by any creditor or government agency; (iv) failure to properly maintain and care for the Equipment; (b) at any time, by mutual agreement of DLB and Lessee; or (c) immediately, at the election of the uninvolved party, upon the filing of a petition in bankruptcy or in the event either party becomes insolvent or makes a general assignment for the benefit of creditors.
13. REMEDIES. Should an Event of Default occur and be continuing, DLB may, in its sole discretion, with or without notice or demand upon Lessee, pursue and enforce, successively or concurrently, any one or more of the following remedies: (a) retake possession of the Equipment or require Lessee to surrender the Equipment, and recover from Lessee all accrued and unpaid payments or other amounts owing under the terms hereof and all of DLB’s costs incurred to retake possession of the Equipment (including reasonable attorney’s fees and expenses); (b) without retaking possession of the Equipment, terminate this Agreement and recover from Lessee all accrued and unpaid payments and other amounts then due and owing under this Agreement with respect to the Equipment; (c) pursue any other remedy DLB may otherwise have at law, in equity or any statute, and recover such other actual damages as may be incurred by Lessee. DLB’s pursuit and enforcement of any one or more remedies under this section shall not be deemed an election or waiver of any other remedy.
14. ASSIGNMENT AND ENCUMBRANCES. DLB may, without notice to Lessee, Lessee, (a) assign or encumber its interest in this Agreement; or (b) encumber the Equipment. This Agreement shall enure to the benefit of and binding upon the successors and assigns of the parties hereto. Lessee MAY NOT assign, encumber or sublease the Equipment to any other person or entity, or otherwise. Any attempt by Lessee to sublease the Equipment shall constitute a breach of this Agreement and will subject Lessee to termination and any remedy provided for in this Agreement.
15. ENTIRE AGREEMENT, MODIFICATION AND SERVERABILITY. This Agreement constitutes the entire agreement between the parties. No modification or amendment of this Agreement shall be effective unless in writing and signed by both parties. All previous, contemporaneous, or subsequent agreements, representations, warranties, promises, and conditions relating to the subject matter of this Agreement are hereby superseded. Should any portion of this Agreement become illegal, unenforceable, or in conflict with any applicable law, the validity and enforceability of the remaining Agreement, shall not be impaired or affected.
16. GOVERNING LAW AND JURISDICTION. This Agreement shall be interpreted under the laws of the State of Texas. The Parties agree that any and all disputes under this Agreement shall be filed in the appropriate state and federal courts located within Dallas County, Texas.
17. WAIVER. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.