The below terms apply to your rental of equipment from, or provision of services by, Yard Mule Specialists, Inc. (YMS).  Please read carefully.  BY ACCEPTING DELIVERY OF THE EQUIPMENT OR SERVICES (DEFINED BELOW) OR MAKING PAYMENT(S) TO YMS FOR THE SAME, CUSTOMER AGREES TO BE BOUND BY THE RENTAL CONTRACT AND THESE SERVICE TERMS, EVEN IF THE RENTAL CONTRACT HAS NOT BEEN FULLY EXECUTED.

 

1. AUTHORITY TO CONTRACT.

Any individual signing the Rental Contract represents and warrants that he or she is of legal age and has the authority and power to sign the Rental Contract on behalf of the Customer. Notice of revisions to this document shall be posted on the YMS website and notice deemed given and effective on the date posted to the Website. If Customer does not agree to the revision(s), Customer must immediately terminate your Equipment Rental, subject to the Termination provisions provided herein.

 

2.  INDEMNITY / HOLD HARMLESS.         

To the fullest extent permitted by law, customer agrees to indemnify, defend and hold YMS, and any 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) operation, use, possession or rental of the equipment, or (b) errors, omissions or inaccuracies in the documents or other information provided by customer, or obtained from others, upon which YMS relies when providing the  equipment or services. This indemnity provision also applies to any claims asserted against YMS based upon strict or product liability causes of action. However, customer shall not be obligated to indemnify YMS for that part of any loss, damage or liability caused solely by the intentional misconduct or sole negligence of YMS. In furtherance of, but not in limitation of the indemnity provisions in this rental contract, customer 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 customer 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 rental contract.

 

3.  INSPECTION OF EQUIPMENT.

Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer's needs.

 

4.  LIMITATION OF LIABILITY.

In no event shall YMS be liable or responsible to Customer or any other party for: (a) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its operation or its use; (b) YMS's failure to deliver the Equipment as required hereunder or YMS's failure to repair or replace non-working Equipment; or (c) any incidental, consequential, punitive or special damages, even if so advised of the possibility of such damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to YMS and will take all necessary precautions to train operators and protect all persons and property from injury or damage from the Equipment.

 

5.  USE OF EQUIPMENT. 

Customer acknowledges familiarity with the proper operation and use of each item of Equipment. Customer 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, if required under any applicable law; or who is not qualified to operate it.  Customer agrees to: (a) check all fluid levels (oil, transmission, and coolant) daily; b) check filters and tire air pressure regularly; (b) clean and visually inspect the Equipment regularly; and (c) immediately cease using the Equipment and immediately notify YMS if Equipment needs repair or maintenance. Customer acknowledges that YMS has no responsibility to inspect the Equipment while it is in Customer's possession. YMS shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.  Replacing or swapping equipment will not change any of the terms of the Rental Contract, all terms will apply to the replacement equipment.

 

6.  COMPLIANCE WITH APPLICABLE LAWS. 

Customer shall, at Customer's sole expense, comply with all applicable municipal, state, and federal laws, ordinances and regulations (including but not limited to:  on-road or off-road use of motor vehicles, worker safety, or the environment). Customer shall also obtain any training, professional licenses, vehicular licenses, and/or permits which may apply to the use of the equipment.

 

7.  WARRANTY / DISCLAIMER OF WARRANTIES.

YMS warrants that the equipment will be in good working order upon delivery and the services will be performed in a good and workmanlike manner. Except as expressly set forth herein, YMS makes no warranties, express or implied with respect to the equipment or services, 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 customer's intended use, or that it is free from defects or contaminants. Except as may be specifically set forth in the rental contract, YMS disclaims all warranties, either express or implied, made in connection with this rental transaction.  In the event of a breach of the above equipment warranty, YMS shall, at its sole cost and expense, repair or replace the equipment. In the event of a breach of any service warranty, YMS shall, at its sole cost and expense, re-perform the service.

 

8.  MALFUNCTIONING EQUIPMENT.

Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify YMS.  Customer may not make self-help repairs, nor engage third parties to do so, without written consent from YMS.  If such condition is the result of normal operation, YMS will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. YMS has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect.  Customer is responsible for tire damage, repairs and excessive maintenance resulting from misuse or abuse of Equipment.

 

9.  RETURN OF EQUIPMENT /DAMAGED & LOST EQUIPMENT.

At the expiration of the Rental Period, Customer will return the Equipment to YMS during YMS's regular business hours, or if YMS has agreed to pick up the Equipment, YMS shall endeavor to pick up the Equipment within a commercially reasonable period of time after Customer notifies YMS that the Equipment is called in as “off rent.”  Customer is obligated to restore the Equipment to the same condition as when delivered, reasonable wear and tear (as defined below) excepted.   If customer picks up Equipment, Customer shall be responsible for all damages to or loss of the Equipment from the time the Equipment leaves YMS until the Equipment is returned to YMS, including any damage during transit to or from Customer.  If delivery/pickup is done by YMS, Customer shall be responsible for all damages to or loss of the Equipment only during the time Customer has possession.  In the case of the loss or destruction of any Equipment, or inability or failure to return same to YMS for any reason whatsoever, Customer will pay YMS the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced.  If the Equipment is returned in a damaged or excessively dirty or worn condition, Customer shall pay YMS the reasonable cost of repair. and pay rental on the Equipment at the regular rental rate until all cleaning or repairs have been completed. Customer agrees that YMS reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to damaged or lost Equipment. 

 

10.  REASONABLE WEAR AND TEAR.

YMS shall perform regularly scheduled preventative maintenance, tire replacement, and other repairs as necessary due to normal wear and tear of the Equipment.  Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift basis (as defined in Section 12 below). The following shall not be considered reasonable wear and tear: (a) damage resulting from lack of lubrication, insertion of improper fuel, failure to maintain necessary oil, water and air pressure levels; cavitation; or freezing; (b) except where YMS expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer's operation and maintenance manual; (c) damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment; (d) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (e) wear resulting from use in excess of shifts for which rented; (f) excessive dirt inside or outside and (g) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.

 

11.  LATE OR EARLY RETURN OF EQUIPMENT.

Customer agrees that if the Equipment is not returned by the end of the Contract Rental Period, YMS, in its sole discretion, may require Customer to do any of the following: (a) renew and continue all terms of the last Contract then in effect; (b) for periods less than 24 hours, pay the full daily rental rate applicable to the Equipment; and/or (c) upon reasonable notice, pay any increased rental rate(s) in effect at the time of, or after, the expiration of the Rental Period. Customer agrees that YMS reserves the right to charge the Credit Card, and/or Customer’s account for any amount owed by Customer pursuant to this section due to late or early return of Equipment. In consideration of YMS offering discounted rates for weekly or monthly rental, if the Customer terminates the rental services before the end of the Equipment Rental Term, Customer agrees that any discount is revoked and Customer shall pay YMS an Early Termination Fee equal to the difference between the discounted contract price and the then prevailing standard rate charge of the Rental Equipment for the equipment rented. Customer further agrees to immediately return the equipment.

 

12.  RENTAL PERIOD / CALCULATION OF CHARGES.  

Rental charges commence when the Equipment is delivered to Customer and end when the Customer notifies YMS that the Equipment is “off rent”, and obtains an “off rent” confirmation code from YMS.  Pick-up and delivery by YMS is subject to a “Delivery and Pick-up Service Charge,” the amount(s) of which are disclosed on the Rental Contract, and are due and payable on the initial invoice.  Rental charges do not include the cost of the Refueling Service Charge, any applicable Taxes (as defined below), the Delivery and Pickup Service Charge, or other miscellaneous charges, the amount(s) of which are disclosed on the Rental and Service Rental Contract. Additionally, YMS shall invoice Customer for any additional excess cleaning or repair costs, including: (a) removal of any alterations made by Customer to the Equipment; (b) restoration of the Equipment to its original configuration; and/or for cleaning excessively dirty Equipment.   Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are for normal “one-shift” usage based on an eight (8) hours per day, 40 hours per week and 160 hours per four-week period. Customer will truthfully and accurately certify to YMS the number of shifts the Equipment was operated.  Customer's right to possess the Equipment terminates on the expiration of the Rental Period and retention of possession after this time is a material breach of the Rental Contract.

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13.  REFUELING SERVICE CHARGE.

Customer acknowledges, and agrees to pay, a “Refueling Service Charge” applied to all Equipment not returned with a full tank of fuel. The exact cost of the Refueling Service Charge may vary depending on the rate being charged by YMS on the date Customer returns the Equipment. Customer may avoid the Refueling Service Charge if Customer returns the Equipment with a full tank of fuel.

 

14.  PAYMENT.

All amounts due hereunder shall be payable in full upon receipt of invoice by Customer under previously agreed upon terms. Customer acknowledges that timely payment of rental and service charges is essential to YMS's business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and YMS agree that there may be added to all past due rental charges, a late payment fee equal to the lesser of two percent (2%) per month on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law.  Customer agrees that YMS reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to late or past due payment(s) or rental charges or Taxes.  In the event Customer asserts that a transaction is exempt from Taxes, Customer agrees to provide a valid tax exemption certificate.  Should the transaction later be deemed taxable, Customer is obligated to reimburse YMS for any Tax assessed that was attributable to Customer.

 

15.  TITLE / LIENS.

The Rental Contract is not a contract of sale, and title to the Equipment shall at all times remain with YMS.  Customer has no option or right to purchase the Equipment. Customer will not remove any decal, tag or nameplate showing the ownership of YMS.  Customer shall keep the Equipment free and clear of all liens and encumbrances.

 

16.  DEFAULT.

Customer shall be deemed in default should Customer fail to pay any amount when due hereunder; fail to perform, observe or keep any provision of the Rental Contract; become or otherwise be in default.  If Customer is in default, YMS may do any one or more of the following: (a) terminate the Rental Period; (b) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (c) cause YMS’s employees or agents, with notice but without legal process, to enter upon Customer's property and take all action necessary to retake and repossess the Equipment, and Customer 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 YMS in retaking and repossessing the Equipment; or (d) pursue any other remedies available by law.  

 

17.  CUSTOMER'S INSURANCE.

Customer agrees to provide a valid COI evidencing the following terms.  COI notwithstanding, Customer hereby agrees it maintains and carries, at Customer’s sole cost, the following insurance: (a) commercial auto liability insurance with at least a per occurrence limit of $1 million (DOT units); (b) commercial general liability with limits of insurance not less than $2 million per occurrence and $2 million in the aggregate; and (c) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment. (See sample COI, Exhibit “A”). Customer agrees that Yard Mule Specialists, Inc. is included as additional insured (except Workers' Compensation) but only to the extent required by the underlying written contract with the Customer that is place prior to an occurrence giving rise to a loss. Subject to the insurance policy terms & conditions, the above-referenced insurance shall contain a waiver of insurers’ subrogation rights, but only to the extent required by the underlying contract with Customer that is in place prior to an occurrence giving rise to a loss. The Customer’s insurance is primary and non-contributory over any existing insurance.  FOR RENTAL OF EQUIPMENT THAT IS LICENSED FOR ON-ROAD USE, CUSTOMER WILL PROVIDE VEHICLE PROOF OF INSURANCE CARD, AND INCLUDE CUSTOMER’S D.O.T. NUMBER.  FOR ALL RENTAL OF EQUIPMENT, CUSTOMER WILL LIST YMS AS LOSS PAYEE ON EQUIPMENT/INLAND MARINE POLICY.

 

18.  ASSIGNMENT, LENDING OR SUBLETTING.

Customer shall not sublease, sub-rent, assign, or loan the Equipment without first obtaining the consent of YMS, and any such action by Customer, without YMS’ consent, shall be void. Customer agrees that at all times, the Equipment will be located at Ship To location noted on the Rental Contract. Customer agrees not to remove or permit removal of the Equipment to any other location without the prior written consent of YMS. Customer agrees to provide YMS access to the equipment at any reasonable time.

 

19.  ENTIRE RENTAL CONTRACT.

These terms and conditions and the front of the Rental Contract, and any Addendum attached thereto, represent the entire Rental Contract between Customer and YMS with respect to the Equipment and the rental and servicing of the Equipment. There are no oral or other representations or Rental Contracts not included herein. None of YMS's rights or Customer's rights may be changed and no extension of the terms of this Rental Contract may be made except in writing, signed by both YMS and Customer. Any use of Customer's purchase order number on this Rental Contract is for Customer's convenience only.  No other terms and conditions of Customer, or Customer's affiliates shall apply. These Terms and Conditions supersede the terms and conditions of Customer's Purchase Order or acknowledgement, if any.

 

20.  OTHER PROVISIONS.

1. Any failure of YMS to insist upon strict performance by Customer of any terms and conditions of this Rental Contract shall not be construed as a waiver of YMS's right to demand strict compliance.

2. Customer agrees to pay all reasonable costs of collection, court costs, attorneys' fees and other expenses incurred by YMS in the collection of any charges due under the Rental Contract or in connection with the enforcement of its terms.

3. Customer shall pay the rental charges without any offsets, deductions or claims.

4. YMS shall also have the right to immediately repossess the Equipment, without any liability to Customer, in the event of (i) permanent closure of YMS; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government; or (iii) as otherwise set forth in the Rental Contract.

5. It is agreed that proper venue for any legal proceeding concerning the Rental Contract shall be Brazoria County, Texas.

 

21.  GPS TRACKING:

Customer and YMS each consent to the collection and monitoring of electronic information, including Global Positioning System (“GPS”) data, generated by or in connection with Customer’s use of or the location of the Equipment. Customer agrees that YMS owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes.