Terms and Conditions
NUVOLT EQUIPMENT TERMS AND CONDITIONS
NuVolt Equipment, LLC, a Delaware limited liability company, with its principal place of business located at 14301 N 87th Street, Suite 202, Scottsdale, AZ 85254 (the "Lessor"); and
essee are collectively the "Parties").
Definitions: The following definitions are used but not otherwise defined in this Agreement: "Authorized Operator" means any individual who is authorized by Lessee to operate the Equipment within the United States. All Authorized Operators must have a validly issued operator's license that is in English or an International Driving Permit (IDP) for Lessees with a validly issued license that is not in English, and relevant experience and training to operate the Equipment. By operating the Equipment, an Authorized Operator will be deemed jointly and severally responsible for Lessee's obligations related to the Equipment and for any obligations that this Agreement imposes on an Authorized Operator of the Vehicle. "Casualty Value" means the market value of the Equipment at the end of the Term (as defined below) or when in relation to a Total Loss, the market value the Equipment would have had at the end of the Term but for the Total Loss. The Casualty Value may be less than but will not be more than the original purchase price of the Equipment. "Regulated Materials" includes any material, substance or waste that falls into the following five categories: (a) "Hazardous Materials" as defined or listed or regulated by any local, state, or federal government authority; (b) "DOT Hazardous Materials" as defined or identified as "hazardous material" by the Department of Transportation as set forth in 49 C.F.R. Parts 171 to 180; (c) "Polychlorinated Biphenyls" or "PCBs" meaning any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances which contains such substance, and which are regulated under the Toxic Substances Control Act and its implementing regulations found at 40 C.F.R. part 761; (d) "Radioactive Materials" identified by any local, state, or federal government authority as being radioactive; and (e) "Infectious Materials" meaning any infectious substance, material, or waste that is defined, listed, or regulated by any local, state, or federal government authority. "Total Loss" means any loss or damage that is not repairable or that would cost more to repair than the market value of the Equipment.
Lessee acknowledges that Lessee has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Lessee's needs. If Lessee discovers any malfunction or defect in Equipment, Lessee shall promptly notify Lessor. Lessee shall abide by all third-party manufacturer requirements regarding repair, maintenance, and notice.
At the expiration of the Term, Lessee shall return the Equipment to 105 Sunset Acres Court, Building J, Granbury, TX 76048, or such other location within [50] miles of such location notified to the Lessee by the Lessor. If Lessee fails to return the Equipment at the expiration of the Term, Lessee shall continue to be bound by and must comply with all the terms and conditions of this Agreement and shall be obligated to pay 125% of the prorated daily Lease Payment for each day from the expiration or earlier termination of the Term until the date on which Lessee returns the Equipment to Lessor in the manner required under this Agreement ("Holdover Rent"). Nothing contained in this Section, including Lessee's payment of Holdover Rent, shall (a) constitute a waiver of Lessee's failure to perform any obligation under this Agreement; or (b) give Lessee the right to retain possession of any Equipment after the expiration or earlier termination of the Term.
Lease Amount: Lessee shall pay rent to Lessor in instalments of $11,500.00 [every 28 days/ on the first day of each month] (each a "Lease Payment"), beginning on the day of possession and [then every 28 days] thereafter for each succeeding month throughout the Term[, provided that the amount of the applicable Lease Payment shall be pro-rated if the date of possession is on a date other than the first day of the month or the date of return is on a date other than the last day of the month]. If Lessee does not pay any amount payable to Lessor under Agreement when due, in addition to other rights and remedies Lessee has under this agreement, at law, or in equity, which shall be non-exclusive and cumulative, Lessee shall pay a late fee equal to two percent (2%) of the aggregate unpaid Lease Payments hereunder. Lessee's obligation to pay all Lease Payments and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
Use of Equipment: The Lessee will use the Equipment in a good and careful manner and will comply with all of the manufacturer's requirements and recommendations respecting the Equipment and in compliance with any applicable law, whether local, state or federal respecting the use of the Equipment. The Lessee will use the Equipment for the purpose for which it was designed and not for any other purpose. Lessee shall not use the Equipment for transportation or storage of Regulated Materials. Lessee is familiar with the proper operation and use of each item of Equipment. Lessee has selected the Equipment based on its requirements and will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, or who is not an Authorized Operator. Lessee shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or other public road. In addition, Lessee shall only use ultra-low-sulfur diesel fuel ("USLD") in equipment with tier 5 engines. Lessee agrees to defend, indemnify, and hold lessor harmless from all fines, penalties, damage to equipment, and any other costs incurred by lessor due to dyed fuel being introduced into the propulsion tank of such vehicles. Lessee agrees to: (i) check filters, oil, fluid levels and tire air pressure; (ii) clean and visually inspect the Equipment daily; and (iii) immediately cease using the Equipment and immediately notify Lessor if Equipment needs repair or maintenance. Lessee acknowledges that Lessor has no responsibility to inspect the Equipment while it is in Lessee's possession. Lessor shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason. Unless the Lessee obtains the prior written consent of the Lessor, the Lessee will not alter, modify or attach anything to the Equipment unless the alteration, modification or attachment is easily removable without damaging the functional capabilities or economic value of the Equipment. In no event shall Lessee remove the equipment for from the lower forty-eight states of the United States of America. Lessee shall pay, and indemnify and hold Lessor harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than gross or net income taxes) imposed on or with respect to (a) the Equipment or any part thereof arising out of or in connection with the shipment, possession, ownership, use, delivery, or operation of any Equipment, or (b) this Agreement or the consummation of the transactions contemplated herein.
Repair and Maintenance of Equipment: The Lessee will, at the Lessee's own expense, keep the Equipment in good repair, appearance and condition, normal and reasonable wear and tear excepted. The Lessee will supply all parts that are necessary to keep the Equipment in such a state. The following shall not be considered reasonable wear and tear: damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels; cavitation; or freezing; any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer's operation and maintenance manual; damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment; damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; and any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry. If the Equipment is not in good repair, appearance and condition when it is returned to the Lessor, the Lessor may make such repairs or may cause such repairs to be made as are necessary to put the Equipment in a state of good repair, appearance and condition, normal and reasonable wear and tear excepted. The Lessor will make the said repairs within a reasonable time of taking possession of the Equipment and will give the Lessee written notice of and invoices for the said repairs. Upon receipt of such invoices, the Lessee will immediately reimburse the Lessor for the actual expense of those repairs. The Lessee may, but is not obligated to, enforce any warranty that the Lessor has against the supplier or manufacturer of the Equipment. The Lessee will enforce such warranty or indemnity in its own name and at its own expense. Repair or replacement of tires and tubes on Equipment is the responsibility of Lessee and is not included in the Lease Payments.
Warranties and Disclaimers: Lessor warrants that the equipment will be in good working order upon delivery. Lessor makes no warranties, express or implied, with respect to the equipment and makes no warranties as to the merchantability of the equipment or its fitness for any particular purpose. There is no warranty that the equipment is suited for lessee's intended use or that it is free from defects or contaminants, except as may be specifically set forth in this agreement. Lessor disclaims all warranties, either express or implied, made in connection with this agreement. In the event of a breach of the above equipment warranty, lessor shall, at its sole cost and expense, repair or replace the equipment.
Loss and Damage of Equipment: To the extent permitted by, and to the fullest extent of, applicable law, the Lessee will be responsible for risk of loss, theft, damage or destruction to the Equipment from any and every cause. If the Equipment is lost or damaged, the Lessee will continue paying Rent, will provide the Lessor with prompt written notice of such loss or damage and will, if the Equipment is repairable, put or cause the Equipment to be put in a state of good repair, appearance and condition. In the event of Total Loss of the Equipment, the Lessee will provide the Lessor with prompt written notice of such loss and will pay to the Lessor all unpaid Lease Payments for the entire Term plus the Casualty Value of the Equipment, at which point ownership of the Equipment passes to the Lessee.
Lessee, Ownership, Right to Lease and Quiet Enjoyment: Except as provided in paragraph 0, the Equipment is the property of the Lessor and title to the Equipment shall at all times remain with Lessor. Lessee acquires no ownership, title, property, right, equity, or interest in the Equipment other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement. The Lessee will not encumber the Equipment or allow the Equipment to be encumbered or pledge the Equipment as security in any manner and shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. The Lessor warrants that the Lessor has the right to lease the Equipment according to the terms in this Agreement. The Lessor warrants that providing no Event of Default (as defined below) has occurred, the Lessor will not disturb the Lessee's quiet and peaceful possession of the Equipment or the Lessee's unrestricted use of the Equipment for the purpose for which the Equipment was designed.
Insurance: The Lessee will, during the entire Term and for as long as the Lessee has possession of the Equipment: insure the Equipment against loss and damage for the full replacement value of the Equipment; maintain a comprehensive general liability insurance policy against claims for bodily injury, including death, and property damage or loss arising out of the use of the Equipment with limits not less than $1,000,000.00 per occurrence; note the Lessor on their policy as the lessor of the Equipment so that both the Lessor and the Lessee will be protected from liability and will provide primary and noncontributing coverage for the Lessor; andprocure that the insurance policy will have a provision that it will not be modified or cancelled unless the insurer provides the Lessor with thirty (30) days written notice stating when such modification or cancellation will be effective. Upon written demand by the Lessor, the Lessee will provide the Lessor with an original policy or certificate evidencing such insurance.
Indemnity: To the fullest extent permitted by law, lessee agrees to indemnify, defend, and hold lessor, and all of its respective officers, agents, servants or employees, and affiliates, parents, and subsidiaries, harmless from and against any and all liability, claims, loss, damage, or costs (including, but not limited to, legal fees, loss of profit, business interruption or other special or consequential damages, damages relating to property damage, bodily injury, or damages relating to wrongful death) arising out of or related to the (a) installation, operation, use, alteration, modification, removal, possession, or rental of the equipment, (b) claims by the lessee, any sublessee, independent contractor, lessee employee, or any sublessee, sublessee agent or any other person, against lessor, including but not limited to any claim that lessee failed to disclose or obtain consent to data collection contemplated under this agreement, (c) errors, omissions, inaccuracies, or misrepresentations (whether intentional or inadvertent) in the documents or other information provided by lessee, or obtained from others (including any third-party documents or documentation) upon which lessor relies when providing the equipment, and (d) sublease of the equipment by the lessee. This indemnity provision also applies to any claims asserted against lessor based upon strict or product liability causes of action. However, lessee shall not be obligated to indemnify lessor for that part of any loss, damage, or liability caused solely by the intentional misconduct or sole negligence of lessor. In furtherance of, but not in limitation of, the indemnity provisions in this agreement, lessee expressly and specifically agrees that the foregoing obligation to indemnify shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity lessee enjoys from suits by its own employees. The duty to indemnify will continue in full force and effect notwithstanding the expiration or early termination of the agreement.
Limitation of Liability: In no event shall Lessor be liable or responsible to Lessee or any other Party for: any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, or its operation or its use; Lessor's failure to deliver the Equipment as required hereunder or Lessor's failure to repair or replace non-working Equipment; any incidental, consequential, punitive or special damages, including damages resulting from the delay to any ongoing projects, in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or product liability, even if so advised of the possibility of such damages, if such damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose; or any liquidated damages. Lessee acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Lessee until the Equipment is returned to Lessor and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment. In consideration for the lease of the Equipment, Lessee agrees that in no event shall Lessor’s liability arising under or in connection with this Agreement exceed the aggregate amount of all Lease Payments actually made by Lessee to Lessor hereunder.
Default: The occurrence of any one or more of the following events will constitute an event of default ("Event of Default") under this Agreement: Lessee fails to pay any amount provided for in this Agreement when such amount is due. Lessee fails to perform or otherwise breaches any non-payment obligation of Lessee under this Agreement. Lessee becomes insolvent or makes an assignment of rights or property for the benefit of creditors or files for or has bankruptcy proceedings instituted against it under the Federal bankruptcy law of Canada or another competent jurisdiction.
Remedies: On the occurrence of an Event of Default, the Lessor will be entitled to pursue any one or more of the following remedies (the "Remedies"): Declare the entire amount of the unpaid Lease Payments for the entire Term immediately due and payable without notice or demand to the Lessee. Apply the Deposit toward any amount owing to the Lessor. Commence legal proceedings to recover all unpaid Lease Payments and other obligations accrued before and after the Event of Default. Take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. The Lessee hereby consents to such entry, re-taking and repossession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by Lessor in retaking and repossessing the Equipment. Terminate this Agreement immediately upon written notice to the Lessee. Pursue any other remedy available in law or equity. All rights and remedies of Lessor provided in this Agreement are cumulative and not exclusive, and the exercise by Lessor of any right or remedy does not preclude the exercise by Lessor of any other rights or remedies that may now or subsequently be available to Lessor at law, in equity, by statute, in any other agreement between the parties, or otherwise. Lessee is responsible for recovery and enforcement expenses, consisting of costs of any and all kinds (and including attorneys' fees and court costs) incurred by Lessor, including in recovering the Equipment whether due to a breach of this Agreement or due to its seizure by any governmental authority.
No Assignment: Lessee shall not assign any interest in this Agreement without first obtaining the written consent of Lessor, and any such action by Lessee, without Lessor's written consent, shall be void. Lessor may at any time, without notice to Lessee, transfer or assign this Agreement or any Equipment or any moneys or other benefits due or to become due hereunder. This Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns. Any assignment of the rights, interests or obligations under this Agreement shall not relieve assignor of its obligations under this Agreement.
Subleasing: Lessee may sublease the Equipment subject to the terms hereof, provided that no sublease shall relieve Lessee of any of its obligations hereunder and Lessee shall remain primarily liable under this Agreement for the performance of all of the terms hereof and thereof to the same extent as if such Sublease had not occurred. Lessee represents and warrants that it is in the business of leasing equipment similar to the Equipment and will ensure that any sublessee has all required license, permits, and/or other authorizations to operate the Equipment. Lessee will not sublease the Equipment to an unaffiliated person on terms exceeding [30 (thirty)] days. Lessee shall notify the Lessor of the location of the Equipment upon demand of the Lessor. Lessee assumes all risks associated with a sublessee’s use of the Equipment and shall indemnify, defend and hold Lessor harmless as provided in clause 11 in connection with any sublease of the Equipment, including against any claims by sublessee arising out of or relating to the Equipment. Lessee shall require that sublessee (a) insure the Equipment against loss and damage for the full replacement value of the Equipment; and (b) maintain a comprehensive general liability insurance policy against claims for bodily injury, including death, and property damage or loss arising out of the use of the Equipment with limits not less than $1,000,000.00 per occurrence. Lessee shall ensure that any sublessee is bound by terms no less protective of Lessor than the terms hereof and provide in any sublease express rights of Lessor to retake the Equipment under the terms of this Agreement.
Additional Clauses
Payment: All dollar amounts in this Agreement refer to American dollars, and all payments required to be paid under this Agreement will be paid in American dollars unless the Parties agree otherwise.
Amendment: This Agreement may not be amended except by an instrument in writing signed on behalf of each Party.
Waiver: Any provision of this Agreement may be waived only by written instrument making specific reference to this Agreement signed by the Party against whom enforcement of any such waiver is sought. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Severability: In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions will nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement and the remaining provisions had been executed by both Parties subsequent to the expungement of the invalid provision.
Counterparts: This Agreement may be executed in one or more counterparts including by email or other means of electronic transmission, such as by electronic mail in ".pdf" form, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
Time of the essence: Time is of the essence in the performance of this is Agreement.
Force Majeure: Any non-performance or delay in performance of any obligation of Lessor or Lessee under this Agreement will be excused to the extent such failure or non-performance is caused by a Force Majeure. "Force Majeure" means any cause preventing performance of an obligation under the Agreement which is beyond the reasonable control of the Party, and which, by the exercise of due diligence, could not be overcome, including without limitation, fire, flood, sabotage, embargo, explosion, strike or other labor trouble, accident, riot, pandemic, acts of a governmental authority, and acts of God. If a Party is affected by a Force Majeure, it will (i) promptly provide written notice to the other Party, explaining the full particulars and the expected duration of the Force Majeure and (ii) use its commercially reasonable efforts to remedy the interruption or delay. If a Force Majeure extends for more than sixty (60) days, this Agreement may be terminated by the non-affected Party upon written notice without any liability on the part of the non-affected Party.
Relationship of the Parties: The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No Third-Party Beneficiaries: With the exception of persons to be indemnified under clause 11 (Indemnification ) hereof, nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
Governing Law: It is the intention of the Parties that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, shall be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of Arizona without regard to the jurisdiction in which any action or special proceeding may be instituted.
Submission to Jurisdiction and Venue: Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought in the state or federal courts (if subject matter jurisdiction exists) in the State of Arizona, in the County of Maricopa, and each Party (a) irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding; and (b) waives any defense of improper venue, forum non conveniens, or similar defense challenging venue in such court in any such suit, action, or proceeding.
Waiver of Jury Trial: Each party unconditionally and irrevocably waives any right to trial by jury with respect to any action related to or arising out of this agreement.