TERMS AND CONDITIONS OF RENTAL CONTRACT
For good and valuable consideration, you and Ohio High Reach, LLC, an Ohio limited liability company, D.B.A. OHR Rents (hereinafter also referred to as “OHR,” “Lessor,” “we,” “us” and “our”) agrees as follows:
1. As used herein, “P.1” means the first page of this Contract; “Contract” means P.1 together with these Terms and Conditions; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” and/or safety devices provided per Section [or “§”] 5 below); “Site” means the address where the Item(s) is/are to be delivered and/or used, as set forth on P.1; and “Customer,” “Lessee,” “you” and “your” mean the “Customer/Lessee” identified on P.1.
2. You agree to rent from OHR the Rented Item(s) for the period(s) specified on P.1 (the “Term”). You agree to pay OHR all rent and other amounts set forth on P.1 (the “Rent”), together with any other charges accruing hereunder, without proration, reduction or setoff, until all such Item(s) is/are returned to and accepted by OHR in the return condition required under § 13. Unless otherwise agreed in writing by OHR, all rental rates are for normal use of the Rented Item(s) on a single-shift basis during the Term, not exceeding 8 hours per “Rental Day” (being a period of 24 consecutive hours for which Rent is charged hereunder), 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day period, and otherwise in accordance with the terms hereof and the “Instructions” described in § 5. Additional prorated Rent will be due for overuse and late returns. No allowance will be made for weekends, holidays, time in transit, or other period(s) of nonuse.
3. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). You agree: (a) to pay OHR: (i) the Estimated Rent and any deposit specified on P.1 in advance of the Term (the “Prepayment”); and (ii) any other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability to OHR; and (iv) unless otherwise agreed by OHR: (A) all Prepayments are NONREFUNDABLE except as provided in § 8; and (B) anything remaining with, in or on any Item(s) upon return to us will be deemed abandoned.
4. Except with respect to Item(s) we rent from one or more third party(ies) (each, a “TPO”) and then re-rent to you, OHR owns and will retain title to all Rented Items at all times. You will have exclusive control over such Item(s) during the Term, subject to your obligation to comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any such Item; or (b) loan, transfer, sublease, surrender possession or control of, or assign any Item(s) or this Contract without our prior written consent (in our sole discretion). OHR may substitute one or more Item(s) at any time, and/or sell or assign any or all of its interests in such Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of OHR.
5. Upon the earlier of your receipt, or our delivery to the Site, of the Rented Item(s) unless you immediately reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by OHR), carefully examined and inspected by you or your agent(s); and (b) you: (i) have received, read and understand all training, instructions, user manuals, maintenance requirements, and other information, if any, including all applicable laws, rules, regulations, manufacturers’ manuals and EPA, OSHA, ASME, IBC, NFPA, IFC, ASSE, IEEE, MSHA, DOT and/or ANSI Standards pertaining to such Item(s) (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust and Electronic Logging Device requirements); (iii) have been made aware of the need to use FALL, RESPIRATORY PROTECTION AND OTHER SAFETY DEVICES; (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all required notice(s) to, and obtain all applicable licenses, authorizations, permits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure all underground lines, cables and conduits are clearly and properly marked before using any Item(s) to dig or disturb the ground surface (see § 6 below); (vi) will immediately cease using any Item that is damaged, breaks down, malfunctions or proves defective (a “Malfunction”); and (vii) will ensure that all other users of any Item(s) comply herewith. You will notify us immediately if any of the foregoing become(s) untrue. 6. O.R.C. § 3781.25-32 requires that anyone penetrating the surface of the earth must have the utilities marked on their property before the “dig.” The Ohio Utilities Protection Service (OUPS) will arrange to have any public underground utilities marked on the Site. Please call them at 1-800-362-2764 up to 10 days prior to the installation date, but no later than 48 hours prior thereto. The Ohio Oil & Gas Producers Utilities Protection Service (OGPUPS) should also be called. They can be reached at 1-614-715-2984. You will need to know your county, township, and township section number for your event location. Both services are free. See ORC §§ 153.64, and 3781.25-32, and .261 for details.
7. You will ensure the Site is reasonably safe, secure and fit for delivery and use of the Rented Item(s). If we agree to provide any service(s) (including delivery and/or retrieval), you will: (a) pay our charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our employees and agents have unlimited access to the Site. OHR will not be responsible for any delay(s) caused by other parties, including providers of other equipment or services (“Other Providers”) for which you hereby release and agree to indemnify, defend and hold harmless OHR. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives regarding the same (including status, condition, quality and quantities).
8. In the event of a Malfunction, you will immediately notify, and return the subject Item(s) to, OHR. Provided such Malfunction did not result directly or indirectly from any wrongful or negligent act or omission of, or any breach of this Contract by, you or anyone you permit to use or deal with such Item(s), we will, at our option: (a) repair such Item; (b) provide you with a comparable Item; or (c) with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. OHR will have no other obligation(s) or liabilities regarding Malfunctions, all of which you hereby waive, together with all associated direct and indirect damages.
9. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS. EXERCISE EXTREME CARE, AND ENSURE THAT ALL SUCH ITEM(S) ARE USED ONLY FOR ITS/THEIR INTENDED PURPOSE(S), BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED, INSTRUCTED, AND IF APPLICABLE, LICENSED, ADULTS. YOU AGREE TO PROVIDE ALL APPLICABLE TRAINING, FAMILIARIZATION, INSTRUCTIONS AND WARNINGS TO ALL USERS, OPERATORS AND OCCUPANTS OF THE RENTED ITEM(S), and ensure that each Item is used safely and only: (a) within its rated capacity; (b) at the Site; and (c) in compliance with this Contract (including §§ 5-9, 11, 13 and 14) at all times.
10. NO WARRANTIES: OHR IS NOT THE MANUFACTURER OR DESIGNER OF ANY RENTED ITEM(S), all of which are provided “AS-IS”. OHR MAKES NO WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS, GOOD AND WORKMANLIKE PERFORMANCE, AND ANY WARRANTY(IES) ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) regarding any Item(s) or Service(s) provided hereunder, nor does OHR make any warranty against INTERFERENCE OR INFRINGEMENT, all of which you waive. No depictions, models, descriptions, specifications or advertisements constitute representations or warranties by OHR.
11. You agree to maintain all insurance we may require, including: (a) liability insurance with limits of at least $1,000,000 per occurrence; and (b) property damage/inland marine insurance covering all Rented Items for the full (new) replacement cost thereof: (i) naming OHR as an additional insured and loss payee on a closed-clause basis; (ii) waiving subrogation against OHR; (iii) being primary and non-contributory; and (iv) incorporating such other provisions (including deductibles) as we may require. You irrevocably appoint OHR as your agent and attorney-in-fact to submit claims on all such policies.
12. If and only if, we have offered, and you have paid for our OPTIONAL LIMITED DAMAGE WAIVER (“LDW”) (set forth on P.1, if available) in advance of the Term, OHR agrees to waive its claims against you for physical damage to Item(s) covered by LDW (“Covered Item(s)”); EXCEPT THAT you will, remain fully liable for: (a) all loss of and damage to: (i) Covered Item(s) lost or damaged as a result of: (A) your breach of this Contract; (B) theft or other failure to timely return Covered Item(s) to OHR; (C) gross negligence, misuse and/or abuse of Covered Item(s) (including submerging, overturning and overloading); (iii) batteries, keys, glass, tires, tubes, tracks, booms, belts, chains, knobs and hoses; (b) damage during transportation; (c) the lesser of: (i) $1,000; or (ii) 10% of the first $50,000 of repair/replacement costs for Covered Item(s); and (d) all repair and replacement costs exceeding $50,000 in the aggregate across all Covered Item(s). You may decline LDW if you provide the property damage/inland marine insurance referenced in § 11. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
13. You agree to protect, properly service, maintain and care for each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to OHR on time, complete, clean, free of contamination (including asbestos, beryllium and silica), and in good order, condition and repair, properly serviced and maintained, and if applicable, full of the proper fuel(s), fluid(s) and lubricant(s). If you fail to do so, then in addition to the amount(s) set forth on P.1, you will pay us: (a) Rent for each succeeding full rental period until all Item(s) have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You will not, nor will you permit anyone else to: (i) abuse, misuse, overuse, remove from the Site, store, conceal, repair, modify or damage any Rented Item; (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any harmful or hazardous substance(s) or circumstance(s); or (iv) take possession of or exercise control over any Rented Item(s), without our prior written consent (in our sole discretion). With respect to any and all trailers we provide, you shall: (A) carefully inspect the coupling mechanism(s), safety chain(s), tongue jack(s), door(s), latch(es), tires, brakes, taillights, turn signals, pins and tie-downs before each use; (B) secure, protect and periodically inspect all contents of, and refrain from overloading, such trailer(s); (C) connect all taillights and turn signals; (D) timely pay all tolls, taxes, fees, fines, duties and other applicable charges; (E) maintain them in roadworthy condition; and (F) waive all claims against us for associated damage to motor vehicle(s) (including hitches and mirrors).
14. INDEMNITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, LOSS, PROPERTY DAMAGE, DESTRUCTION AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, OHR, each TPO, their respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, partners, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an “Indemnitee”), for, from and against all such RISKS, as well as all damages, losses, costs and expenses any of such Indemnitee(s) may incur in connection with any breach of this Contract by you, your agents and/or your employees; and except only as provided in § 8, (C) WAIVE all rights and remedies available under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general, special, exemplary and punitive damages, against each and every Indemnitee.
15. Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract or any of your obligations hereunder; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or cease conducting business, or if any Item(s) shall be lost or damaged (unless covered by LDW per § 12), you will be in default hereunder, whereupon, we may with or without legal process or notice (and without liability to you), to the maximum extent permitted under applicable law: (i) terminate your rental(s); (ii) seek relief from stay; (iii) recover, repair, empty, lock and/or disable any or all of the Item(s) without being guilty of breach, trespass, wrongful interference, or liable for any injuries or property damage (for which you agree to indemnify, defend and hold harmless OHR and the other Indemnitees; (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor our associated damages, losses, costs and expenses (including without limitation, Rent for the balance of the Term, interest, attorneys’ fees and collection costs); and/or (vii) pursue any other rights and/or remedies available in connection (t)herewith.
16. This Contract together with any Addenda(um) we provide (including our Aerial Equipment Addendum), each of which is incorporated herein, set(s) forth the entire agreement between you and us, superseding all other agreements and representations, including our website and advertising. The terms of this Contract are severable. If any of such terms shall be deemed invalid or unenforceable by any court of competent jurisdiction, such term(s) will be deleted, and the remainder of this Contract will remain valid and enforceable. This Contract cannot be further amended or extended except in a writing signed by OHR. If any legal action is commenced in connection with this Contract, OHR will be entitled to recover its associated costs and expenses (including its attorneys’ fees) from you if OHR prevails. You waive the benefits of all statutes of limitations. Time is of the essence. All amounts due from you but not timely paid will bear interest at the lesser of 18% per annum or the highest rate permitted under applicable law until paid. You acknowledge that: (a) this Contract: (i) is fair and reasonable; (ii) shall be interpreted under the laws of Ohio; (iii) shall be enforceable only by you, Ohio High Reach, LLC, the other Indemnitees and such parties’ respective permitted successors and assigns; and (b) proper venue for all civil legal proceedings commenced in connection herewith shall lie solely in the federal, state and local courts located in or nearest to Cuyahoga County, OH (unless waived by OHR). You consent and submit thereto, and waive all claims that such venue lies in an inconvenient forum.
17. You shall fully and timely pay all sales, use and other taxes, as well as all fines, fees, tolls, duties, assessments and other charges related to each Item and/or the transactions referenced herein. We may, without notice or liability to you, monitor and/or inspect (in person and/or electronically) any Item(s) at any time, and all information thereby obtained will be our property. If any performance required of us is delayed or rendered impractical as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God” (e.g., any event, fact or circumstance beyond our reasonable control), we will be excused from such performance. You authorize us to submit all amounts coming due under this Contract to any debit or credit card(s) you provide, and you waive all associated chargebacks. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability to you in connection with this Contract is limited to the amount(s) actually paid by you to us hereunder. These Terms and Conditions apply to all Item(s) identified on P.1 and to all other Items you obtain from OHR at any time (except only as we may otherwise agree). All of our rights and remedies hereunder shall be cumulative. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies will constitute an election of remedies or a waiver of any right or remedy we may have. Digital, electronic, photocopied and facsimiled signatures and initials appearing on this Contract and/or any Addenda will be deemed originals.
WARNING: Under ORC, § 2913 (and specifically, §§ 2913.02, 41 and 72), if you fail to return or pay the amount(s) due for the Rented Item(s) at the agreed upon time(s), you may be subject to CRIMINAL PROSECUTION for theft and/or ordered to make restitution for the cost of repairing.
RE-RENTAL TERMS: COLLATERAL ACCESS AGREEMENT
December 22, 2020
To secure the obligations of OHR Rents (“Company”) owed to Great Rock Capital Partners, LLC (the “Agent”) the Company has granted to Agent a security interest in and to certain of the assets of the Company (the “Collateral”), including, without limitation, all of the Company’s raw materials, work-in-progress inventory and machinery and equipment, which may be located upon the real property (the “Premises”) of the Customer (the “Customer”).
Upon entering into an equipment lease agreement with the Company, the Customer hereby represents, warrants, covenants and agrees as follows:
- The Customer agrees that any Collateral is and shall remain personal property of the Company, subject to Agent’s security interest, and is not and shall not become or be deemed to be fixtures affixed to the Premises. Any Collateral may not be relocated without Agent’s written consent. In the event that any Collateral is deemed to be a fixture to the Premises for any reason, Customer agrees to execute such additional documentation as reasonably requested by Agent in order to properly perfect Agent’s security interest in that certain Collateral and to recognize and acknowledge such Collateral as the property of Company (subject to Agent’s security interest), including, without limitation, reasonably cooperate with the filing of a fixture filing on the Premises. In the event any third party, including a creditor or lender to the Company, by notice to Customer attempts to claim ownership or right in and to any Collateral, Customer agrees to notify Agent and Company in writing of such action or claim to provide Agent and/or Company an opportunity to defend against such claim or action. In the event any Customer seeks to sell or lease the Premises to a third party, Customer shall notify Agent and Company in writing of such action not less than thirty (30) days prior to such action being consummated to provide Agent and/or Company a reasonable opportunity to obtain a landlord waiver or similar agreement with such third party.
- The Customer hereby recognizes Agent’s security interest in and to any Collateral, acknowledges that it has no right or title over any Collateral superior to Agent’s and unconditionally waives and releases in favor of the Agent and any other credit parties: (a) any and all rights of distraint, levy, and execution, however arising, which Customer may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which Customer may now or hereafter have in the Collateral and the proceeds thereof, whether by statute or by virtue of Company’s occupation of space at the Premises at which the Collateral resides; and (c) any and all other interests or claims of every nature whatsoever which Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to Customer by Company. Customer agrees not to exercise any of Customer’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or liens or security interests in the Collateral, unless and until Customer receives written notice from an officer of the Agent that the Company’s obligations to the Agent and the other credit parties have been paid in full, and that the commitment of each credit party to make loans or furnish other financial accommodations to the Company under any loan agreement has been terminated. The foregoing waiver is for the benefit of the Agent and the other credit parties only and does not affect the obligations of the any Company to any Customer.
- In the event of the exercise by the Agent of its rights upon a default under the any loan agreement with respect to any Collateral, the Agent shall have a reasonable time, but in no event less than one hundred twenty (120) days, in which to repossess and/or dispose of the Collateral from the Premises; provided, however, that such period will be tolled during any period in which the Agent has been stayed from taking action to remove any Collateral in any bankruptcy, insolvency or similar proceeding, and the Agent shall have an additional period of time (but in no event less than one hundred twenty (120) days) thereafter in which to repossess and/or dispose of any Collateral from the Premises.
- In the event Company is threatened with a default, is notified of a pending default or is in default under the lease agreement, or in the event the lease agreement is set to terminate or expire early for any reason, Customer shall give the Agent not less than thirty (30) days’ prior written notice of such action at the address set forth below, and shall provide Agent with access to the Premises so that Agent has a reasonable opportunity to preserve, protect, liquidate, take possession of or remove any Collateral on the Premises and, if the Agent so elects, to cure such breach of or default. Notwithstanding the provisions of this paragraph, the Agent shall not have any obligation to cure any such breach or default. The cure of any such breach or default by the Agent on any one occasion shall not obligate the Agent to cure any other breach or default or to cure such breach or default on any other occasion.
- Company hereby unconditionally and irrevocably authorizes the Customer to grant and allow access by the Agent, or its agents or nominees, to the Premises pursuant to the terms hereof without any duty or obligation to make inquiry of the Agent or to oversee or monitor in any way the activities of the Agent in the Premises. Under this Agreement, the Customer agrees to provide Agent with reasonable assistance and recognizes Agent as attorney-in-fact for the Company and to take all reasonable directions from Agent.
- To the extent not paid or prepaid by the Company, the Agent shall pay the Company’s Customer a sum for its use and occupancy of the Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by a Company under a lease agreement from the date on which the Agent shall have taken possession of the Collateral on the Premises until the date on which the Agent vacates the Premises, it being understood, however, that the Agent shall not, thereby, have assumed any of the obligations of any Company to any Customer, including, without limitation, any obligation to pay any past due rent owing by the Company. No payment by the Agent to any Customer hereunder shall affect any obligation of any Company and its affiliates to reimburse the Agent for any such payment by the Agent pursuant to the terms of any loan agreement.
- The Customer will, upon reasonable prior written notice from the Agent, (a) cooperate with the Agent in gaining access to the Premises and (b) if requested by the Agent, permit the Agent, or its agents or nominees, to dispose of any Collateral on the Premises in a manner reasonably designed to minimize any interference with any of any Landlord’s other tenants at the Premises. The Agent shall promptly repair, at the Agent’s cost and expense, any physical damage to the Premises actually caused by the Agent, but shall not be liable for any diminution in value of the Premises caused by the removal or absence of the Collateral.
- All notices shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission:
If to the Agent:
Great Rock Capital Partners Management, LLC, as Agent
c/o Two Sigma Investments, LLC
101 Avenue of the Americas, 17th Floor
New York, NY 10013
Attention: Stuart Armstrong
Email: Armstrong@greatrockcapital.com and firstname.lastname@example.org
Great Rock Capital Partners Management, LLC, as Agent
285 Riverside Avenue
Westport, CT 06880
Attention: Izabel Leal-Ross
with a copy to:
Moore & Van Allen PLLC
100 North Tryon St., Suite 4700
Charlotte, NC 28202
Attention: Kimberly Zirkle, Esq.