Terms & Conditions

Standard Terms & Conditions of Sale of Goods and Services
11/18/2022

  1. Applicability. These Standard Terms and Conditions of Sale (these “Terms”), together with the quotation, sales order, maintenance agreement, or other ordering document which references these terms (as applicable, the “Sales Confirmation”, and collectively with the Terms, the “Agreement”) govern the sale of the goods (“Goods”) and services (“Services”) described in the Sales Confirmation by The Bailey Company, Inc., a Delaware corporation, doing business as Bailey Equipment & Intralogistics (“Seller”), with offices at 501 Cowan Street, Nashville, TN 37207, to the buyer named in the Sales Confirmation (“Buyer”).

The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the sale of goods services hereof; provided, for the avoidance of the doubt, the Agreement does not supersede or modify the terms under which (or otherwise apply to) any equipment leased or rented by Seller to Buyer (which arrangements are governed by Seller’s Standard Lease and Rental Terms and Conditions or such other leasing or rental agreement as may be entered into between Seller and Buyer form time to time) (a “Lease Agreement”). Notwithstanding the foregoing, the Agreement does apply to any Goods or Services sold to Buyer by Seller for use with any such leased or rented equipment that are sold separately and that are not provided under the terms of the applicable Lease Agreement.

The Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms to Seller and regardless whether such Buyer’s general terms are in addition to or different from any terms set forth herein. Fulfillment of Buyer’s order by Seller does not constitute acceptance of any of Buyer’s terms and conditions by Seller and does not serve to modify or amend the Agreement.

    1. Delivery of Goods. The Goods will be delivered within a reasonable time after the receipt of Buyer’s signed Sales Confirmation, subject to availability of finished Goods. Any delivery dates specified in the Sales Confirmation are an estimate only. Neither Seller nor any applicable manufacturer shall be liable for any delays. Seller and its manufacturers may allocate supply among their customers in their discretion. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location specified in the Sales Confirmation (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point, and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Any liability of Seller for non-delivery of the Goods shall be limited to (and Buyer’s exclusive remedy shall be) at Seller’s option replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    2. Performance of Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may reasonably request and Buyer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
    3. Maintenance Services. Any maintenance and repair services provided by Seller (directly or through its authorized representative) to Buyer on an ad hoc basis (i.e., not pursuant to the terms of any maintenance commitment by Seller included in a Lease Agreement) with respect to any equipment leased or rented to Buyer by Seller or with respect to any Buyer-owned equipment (as applicable, “Equipment”), will be provided subject to this Section together with the remainder of the Terms to the extent not in conflict with the terms of this Section.
      1. Buyer shall provide at no charge to Seller an adequate area on Buyer’s premises to permit the employees of Seller or its authorized representative to maintain the Equipment without removing the same from Buyer’s premises. Such area shall be well lighted, heated and ventilated.
      2. Seller or its authorized representative shall, as agreed in the applicable Sales Confirmation, provide agreed upon maintenance services, and shall repair or replace any assembly, component or part of the Equipment in accordance with the terms of the Sales Confirmation. Seller shall furnish all repair parts, supplies and labor, except tires, and certain items as provided in the Sales Confirmation.
      3. Except as agreed in the applicable Sales Confirmation, Seller will not be responsible for providing replacement tires. In the event tire replacements are needed, Seller may make such replacements, and the Buyer will pay the cost thereof at Seller’s then standard rates.  Except as agreed in the applicable Sales Confirmation, Seller shall have no obligation to repair pneumatic tires, repair or replace flood lights, safety lights, fire extinguishers, batteries, chargers, rug poles, seats, forks, rear view mirrors, LP tanks, tank couplings or any other accessories.
      4. Where the Sales Confirmation covers planned maintenance, Buyer agrees to make the Equipment available for Seller or its authorized representative to perform regularly scheduled planned maintenance service calls and other necessary repairs, so that such service may be performed during the normal working hours of Seller’s or its authorized representative, avoiding overtime rates. Subject to the foregoing, Seller or its authorized representative shall create a minimum of interference with Buyer’s operations.  Should any Equipment not be made available upon request of Seller or its authorized representative, Buyer agrees to pay a waiting time charge at the prevailing outside labor rate of Seller.
      5. Seller shall not incur any liability to Buyer for Seller’s failure to repair or otherwise maintain any Equipment, or supply any equipment in substitution of Equipment, if prevented by wars, fires, strikes or other labor disputes, accidents, Acts of God, governmental regulations or interference, shortages of labor or material, delays in transportation, non-availability of equipment or parts, or other causes beyond Seller’s reasonable control.
      6. Except as agreed in the applicable Sales Confirmation, Seller will not be responsible for carrying out any extra maintenance or repairing any damage or malfunction that Seller determines is required as a result of (i) any misuse or excessive use (in excess of rated hours), (ii) any abuse or casualty suffered by the Equipment, or (iii) that is otherwise attributable to any breach of Buyer obligations under the Lease Agreement (if the Equipment is leased or rented from Seller).
    4. Title and Risk of Loss. Title (subject to payment of all amounts due with respect to the applicable Goods) and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
    5. Purchase Money Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Tennessee Uniform Commercial Code (the “UCC”). In the event of any default by Buyer with respect to any amounts due hereunder, Buyer hereby authorizes Seller and/or its designated agent to enter into Buyer’s premises where the applicable Goods are located, to take possession of and remove such Goods from Buyer’s premises, and dispose of such Goods in accordance with the UCC, all without recourse to any legal process. Buyer shall cooperate with any such efforts and agrees to make the Goods available to Seller upon demand in the event of such a Buyer default.
    6. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product shipped does not conform in any material respect to the specifications set forth in the Sales Confirmation. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods at no cost to Buyer, or (ii) credit or refund the Price for such Nonconforming Goods. Seller reserves the right to inspect any Nonconforming Goods at Buyer’s location or require that such Nonconforming Goods be returned to Seller’s facility. Return shipping of Nonconforming Goods shall be at Seller’s expense unless Seller determines upon receipt that such the returned Goods were not Nonconforming Goods (in which case the cost of return shipping will be the obligation of Buyer). Buyer acknowledges and agrees that the remedies set forth in this paragraph are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this paragraph, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. Any Goods identified as “used” in the Sales Confirmation are sold “as-is” without warranty of any kind and shall not be subject to the terms of this paragraph and may not be returned.
    7. Price. Buyer shall purchase the Goods and Services from Seller at the price(s) specified in the Sales Confirmation, or if no price is specified therein for the applicable Good or Service, at Seller’s then standard list price for such Good or Service (as applicable, the “Price(s)”). Unless otherwise stated in the Sales Confirmation, quoted Prices are good for fourteen (14) days from the date of the Sales Confirmation. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Seller reserves the right to impose customary environmental and disposal fees for certain Goods and Services. For Services provided on-site at Buyer, the quoted prices assume the Services will be provided at Buyer’s premises stated on the Sales Confirmation. Additional travel fees and surcharges may apply where Services are requested at locations other than the location listed on the Sales Confirmation. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
    8. Financing Terms. If the Sales Confirmation describes any financing terms applicable to the purchase of the Goods or Services identified therein, such terms are a non-binding proposal only and are subject to Buyer’s satisfactory completion of underwriting review and acceptance by Seller and/or its financing sources. Further, any such proposal is not a statement of all terms and conditions of any financing that may be available. Interest rates quoted are subject to change without notice. Seller does not guaranty that financing will be available on the terms proposed or otherwise.
    9. Surcharges. Notwithstanding anything in these Terms, Seller reserves the right, at the time of order, to charge Buyer a surcharge on the Goods and Services ordered by Buyer, to cover increased commodity costs, freight, duties, tariffs or other related items, in each case, which have impacted Seller. If Buyer does not agree to pay such surcharge, Seller reserves the right to cancel the applicable Sales Confirmation.
    10. Payment Terms; Late Payment. Buyer shall pay all invoiced amounts due to Seller within the number of days specified in the Sales Confirmation, or if no payment term is set forth therein, within ten (10) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by check, wire or electronic funds transfer/ACH. Payments by credit card may be accepted at the discretion of Seller subject to payment of any applicable credit card payment processing fees. Buyer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and expenses. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. Seller reserves the right at any time to modify or withdraw credit terms without notice and to require guarantees, security, or payment in advance of the amount of the credit involved. If Seller at any time doubts Buyer’s financial responsibility, Seller may decline to make shipments hereunder except upon cash payment in advance or receipt of security or other proof of responsibility satisfactory to Seller.
    11. Cancellations. Once signed or otherwise confirmed or accepted by Buyer, a Sales Confirmation may not be cancelled without the approval of Seller, which shall be solely in its discretion. Seller reserves the right to impose a cancellation fee of up to 25% of the Price for the cancelled Goods or Services plus any non-cancellable charges and other costs incurred by Seller with respect to such Sales Confirmation and the cancelled Goods or Services prior to cancellation.
    12. Warranties; DISCLAIMER. With respect to Goods, the applicable manufacturer’s standard published warranties in effect at the time of shipment for the particular Goods shall apply, and Seller makes no additional warranties with respect to the Goods. Buyer acknowledges that: Seller is not the manufacturer of the Goods nor the manufacturer’s agent or representative; the Goods are of a size, design, capacity, description and manufacture selected by Buyer; Buyer is satisfied that the Goods are suitable and fit for its purposes. With respect to the Services, Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The exclusive remedy of Buyer for any breach of the foregoing warranty with respect to Services shall be at Seller’s option reperformance of the nonconforming Services by Seller at no cost to Buyer or refund of the Price paid by Buyer for such Services. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS, STATUTORY OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
    13. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD UNDER THE SALES CONFIRMATION IN RESPECT OF WHICH SUCH LIABILITY AROSE.
    14. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods. Certain Goods sold by Seller are sold, and the user thereof, are subject to additional laws, regulations and ordinances. For example, OSHA requires that operators of lift trucks be trained, evaluated, and certified as competent to safely operate the particular model truck used in the performance of the job. Buyer understands this obligation and will only permit properly trained and certified operators to use lift trucks. Seller may, upon request, provide further information and training materials relating to such laws, regulations and ordinances. Notwithstanding the foregoing, Buyer remains solely responsible for its compliance with all such laws, regulations and ordinances and Seller assumes no liability with respect thereto.
    15. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
    16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    17. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Unless otherwise agreed to in writing, all tooling shall remain the property of Seller.
    18. Non-solicitation of Seller Personnel. Buyer shall not solicit any Seller personnel to terminate their employment or other contractual relationship with Seller or to provide services directly or indirectly to Buyer (other than through Seller) for so long as any Sales Confirmation remains in effect and a period of 12 months thereafter. For purposes of the foregoing, Seller personnel includes any employee or independent contractor providing services to Seller or any of its affiliates at any time within the prior 12-month period.
    19. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) epidemic or pandemic; (j) parts availability from suppliers; and (k) other events beyond the reasonable control of Seller.
    20. Government Contract Conditions. If Buyer’s purchase order contains a U.S. government contract number and orders Goods or Services to be used in the performance of the contract, those clauses of applicable U.S. government procurement regulations mandatorily required by federal statute to be included in U.S. government subcontracts shall be incorporated herein by reference.
    21. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
    22. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this 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.
    23. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and 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 under or by reason of these Terms.
    24. Governing Law; Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Tennessee. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Nashville and County of Davidson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. All claims or suits against Seller must be made within one (1) year of the date the cause of actions occurred (regardless of when they were discovered) or be forever barred.
    25. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
    26. Miscellaneous. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. Paragraph headings found herein are for convenience only and are not to be considered in interpreting any of the provisions hereof.

 

Standard Lease and Rental Terms & Conditions
11/18/2022

These Standard Lease Rental Terms and Conditions (the “Standard Terms”) constitute the standard terms and conditions applicable to any equipment lease or rental by The Bailey Company, Inc., a Delaware corporation, doing business as Bailey Equipment & Intralogistics (“Lessor”), with its principal office located at 501 Cowan Street, Nashville, TN 37207, to the applicable lessee or renter (“Lessee”) identified in any leasing or rental document or other quotation, lease, or rental agreement that references these Standard Terms (each an “Ordering Document”, and together with these Standard Terms, the “Lease”).

 

    • Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, subject to the terms herein and the Ordering Document, the equipment (together with all attachments, replacements, parts, substitutions, additions, repairs, accessions and accessories, incorporated therein and/or affixed, thereto) identified in the Ordering Document (the “Equipment”).
    • For the avoidance of doubt, (i) references herein and in the Ordering Document to “lease” (as a noun) will also be understood to include a “rental”, (ii) references herein and in the Ordering Document to “lease” (as a verb) will also be understood to include “rent” (as a verb), (iii) references herein to Lessee also includes any party described as the “Renter” in the Ordering Document, and (iv) references herein to Lessor also includes The Bailey Company, Inc. when referred to as the “Owner” in the Ordering Document, it being understood that these Standard Terms apply regardless of whether the arrangement with respect to Lessee’s use of the Equipment is described or referred to in the Ordering Document as a “lease” or as a “rental.”
    • The Equipment is and shall at all times be and remain the sole and exclusive personal property of Lessor, and notwithstanding any trade-in or down payment by Lessee or on its behalf with respect to the Equipment, Lessee shall have no right, title or interest therein or thereto except as to the use thereof subject to the terms or conditions of the Lease.
  1. Term and Rent.
    • Lessee shall pay as rent with immediately available funds (as defined below) for use of the Equipment aggregate rental payments equal to the sum of all the monthly rents (including advance rents) for the entire term of the Lease as specified on the Ordering Document. If any rental payment shall be unpaid for more than five (5) days after the due date thereof, Lessee will pay on demand, as an additional late service and/or overhead charge, but not as interest, on amounts not paid when due, an amount equal to one and one-half percent (1.5%) of any such unpaid amount per month, until paid in full, but in no event to exceed maximum lawful charges. TIME IS OF THE ESSENCE FOR THE PAYMENT OF RENT UNDER THIS PROVISION.
    • THE LEASE IS NON-CANCELABLE FOR ITS ENTIRE TERM and Lessee has no right of prepayment unless specifically granted to Lessee in a written rider signed by the parties hereto. Upon expiration of the term of the Lease, and until return to Lessor of all Equipment leased hereunder, or until any purchase option price is paid, at the option of Lessor, in its sole discretion, the Lease shall remain effective and shall become a month-to-month lease between the parties on the same terms and conditions, except that the monthly rent then in effect shall be the rent payable during such month-to-month term under the Ordering Document, or if no month-to-month rent amount is specified, the rent payable will be Lessor’s then undiscounted month-to-month rental rate for like equipment.
    • Funds are considered “immediately available” if they are advanced and available for use by the Lessor before the close of business on the day of payment (such as wire transfers). Although most payments made by check are not “immediately available” (because the Lessor does not have the right to use the funds deposited in its account until the settlement between its bank and the Lessee’s bank has become final), the Lessor has the right to demand funds immediately available for its use, especially if payments are routinely late or checks have been returned for insufficient funds.
    • Lessor shall not be responsible for any third party fees charged by any third party that Lessee chooses to use to submit payment (e.g., credit card or bill pay services). Any such fees will be solely the responsibility of Lessee.
  2. Maintenance Terms. Any maintenance and repair services provided by Lessor (directly or through its authorized representative) to Lessee as an included service pursuant to the terms of the Ordering Document will be provided subject to the Maintenance Terms set forth in this Paragraph 3.
    • Lessee shall provide at no charge to Lessor an adequate area on Lessee’s premises to permit the employees of Lessor or its authorized representative to maintain the Equipment without removing the same from Lessee’s premises. Such area shall be well lighted, heated and ventilated.
    • Lessor or its authorized representative shall, at regularly scheduled intervals, provide planned maintenance services, and shall repair or replace any assembly, component or part of the Equipment which in its judgment so warrants. Lessor shall furnish all repair parts, supplies and labor, except tires, and certain items as provided in Paragraph 3(c) below.
    • Except as agreed in the applicable Ordering Document, Lessor will not be responsible for providing replacement tires during the term of this Agreement. In the event tire replacements are needed, Lessor may make such replacements, and the Lessee will pay the cost thereof at Lessor’s then standard rates.  Lessor shall have no obligation to repair pneumatic tires, repair or replace flood lights, safety lights, fire extinguishers, batteries, chargers, rug poles, seats, forks, rear view mirrors, LP tanks, tank couplings or any other accessories.
    • Lessee agrees to make the Equipment available for Lessor or its authorized representative to perform regularly scheduled planned maintenance service calls and other necessary repairs, so that such service may be performed during the normal working hours of Lessor’s or its authorized representative, avoiding overtime rates. Subject to the foregoing, Lessor or its authorized representative shall create a minimum of interference with Lessee’s operations.  Should any Equipment not be made available upon request of Lessor or its authorized representative, Lessee agrees to pay a waiting time charge at the prevailing outside labor rate of Lessor.
    • Lessor shall not incur any liability to Lessee for Lessor’s failure to repair or otherwise maintain any Equipment, or supply any equipment in substitution of Equipment, if prevented by wars, fires, strikes or other labor disputes, accidents, Acts of God, governmental regulations or interference, shortages of labor or material, delays in transportation, non-availability of equipment or parts, or other causes beyond Lessor’s reasonable control.
    • Lessor will not be responsible for carrying out any extra maintenance or repairing any damage or malfunction that Lessor determines is required as a result of (i) any misuse or excessive use (in excess of rated hours), (ii) any abuse or casualty suffered by the Equipment, or (iii) that is otherwise attributable to any breach of Lessee’s obligations under the Lease.
  3. Lessee Representations. Lessee represents and warrants that:
    • Corporate Lessee. If Lessee is a corporation, a partnership, or a limited liability company, it is duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, duly qualified to do business in each jurisdiction where any Equipment is, or is to be, located, and has full power and authority to hold property under lease and to enter into and perform its obligations under the Lease; the execution, delivery and performance by Lessee of the Lease have been duly authorized by all necessary action on the part of Lessee, and are not inconsistent with its organizational documents.
    • No Violations; Lease Valid and Binding. The execution, delivery and performance by Lessee of the Lease do not violate any law or governmental rule, regulation, or order applicable to Lessee, do not and will not contravene any provision, or constitute a default under, any indenture, mortgage, contract, or other instrument to which it is bound, and, upon execution and delivery hereof, will constitute a legal, valid and binding agreement of Lessee, enforceable in accordance with its terms.
  4. Affirmative Covenants of Lessee.
    • Operation and Care of Equipment. Lessee agrees to exercise reasonable care in the use, maintenance, and storage of the Equipment (storage to be used under cover), to operate the same within its rated capacity, solely in the conduct of Lessee’s business, and to cause the Equipment to be operated only by employees of the Lessee trained in the operation of the specific Equipment.
    • Lessee shall maintain the Equipment in good repair, condition and working order, and shall furnish any and all parts, mechanisms, and devices (“Parts”) required to keep the Equipment in good repair, condition and working order, at the sole cost and expense of Lessee, subject to any maintenance obligations expressly assumed by Lessor under the Ordering Document or under any other written maintenance services agreement in effect between Lessor and Lessee covering the Equipment. Lessee will purchase all Parts exclusively from Lessor.
    • Taxes, Fees and Assessments. Lessee shall pay when due or reimburse, and on a net after-tax basis, shall indemnify and defend Lessor against, all fees, assessments and sales, use, property, excise and other taxes and governmental charges including, without limitation, interest and penalties now and hereafter imposed by any federal, foreign, state or local governmental body or agency upon any Equipment, or the use thereof, exclusive, however, of any taxes based on the net income of Lessor. Lessee assumes the risk of liability arising from or pertaining to the delivery, installation, leasing, possession, operation, use, storage, and return of such Equipment. Lessee agrees to file all tax returns and informational statements required by any federal, state and/or local governmental agency and provide evidence of payment to Lessor.
    • Transportation Charges; Return of Equipment. Lessee shall pay all shipping and delivery charges and other expenses incurred in connection with the Equipment. At the expiration or earlier termination of the Lease, unless Lessee purchases the Equipment or renews the Lease (which options may be available in the Lessor’s discretion unless the parties have otherwise agreed in advance and in writing), Lessee, at Lessee’s risk and expense, shall assemble, prepare for shipment, and immediately return each item of Equipment to Lessor to any location designated by Lessor. The returned Equipment shall be in good condition, repair, and working order (including without limitation usable tires and functioning batteries), ordinary wear and tear excepted. Lessee, upon request of Lessor, shall provide suitable and adequate storage space at the place where the Equipment was delivered hereunder or to which it was moved in accordance with the Lease, and shall permit Lessor to store such Equipment free of charge, and at risk of Lessee for public liability and physical damage exposures, for a period not to exceed 90 days, during which period Lessor will be allowed reasonable access thereto.
    • Laws, Regulations and Rules. Lessee shall comply with all governmental laws, regulations, requirements and rules, all manufacturer’s instructions and warranty requirements, and with the conditions and requirements of all policies of insurance with respect to the Equipment and the Lease.
    • Marking of Equipment. Lessee shall mark and identify the Equipment with all information and in such manner as Lessor may request from time to time and replace promptly any such markings or identification which are removed, defaced or destroyed; and Lessee shall not permit the name of any person, association or corporation other than Lessor to be placed on the Equipment as a designation that might be interpreted as a claim of ownership or security interest.
    • Lessor’s Access to Equipment. Lessee shall at any and all times during business hours, grant Lessor free access to enter upon the premises wherein the Equipment shall be located or used and permit Lessor to inspect the Equipment. Lessor may remove the Equipment immediately, without notice to Lessee, if the Equipment is, in the opinion of Lessor, being used beyond its capacity or is being improperly cared for or abused.
  5. Negative Covenants of Lessee.
    • No Liens. Lessee shall not create, incur, assume or suffer to exist any mortgage, lien, pledge or other encumbrance or attachment of any kind whatsoever upon, affecting or with respect to the Equipment or the Lease or any of Lessor’s interests thereunder.
    • No Alterations to Equipment; Accessions. Lessee shall not make any changes or alterations in or to the Equipment without the prior written consent of Lessor. Any accessories Lessee desires to add to a piece of Equipment must be approved in advance by Lessor. Such approved accessories will remain the property of Lessee; provided, that, if any Equipment is returned with any such accessories still attached, such accessories will become the property of Lessor. Lessor is not responsible for the maintenance or repair of any such accessories.
    • Location of Equipment. Lessee shall not part with possession or control of, or suffer or allow to pass out of its possession or control, items of Equipment or change the location of the Equipment or any part thereof from the approved addresses set forth in the Ordering Document without the prior written consent of Lessor.
    • Lessee’s Identity, Structure, Name and Address. Lessee shall not change its name or address from that set forth in the Ordering Document, and, if an organization, shall not merge or consolidate with any other person or entity or change its identity, in each case unless it shall have given Lessor or its assigns no less than 30 days’ prior written notice.
    • Non-solicitation of Lessor Personnel. Lessee shall not solicit any Lessor personnel to terminate their employment or other contractual relationship with Lessor or to provide services directly or indirectly to Lessee (other than through Lessor) for the duration of the Term of the Lease and a period of 12 months thereafter. For purposes of the foregoing, Lessor personnel includes any employee or independent contractor providing services to Lessor at any time within the prior 12-month period.
    • No Assignment or Sublease by Lessee.LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. ANY ATTEMPTED ASSIGNMENT IN BREACH OF THIS PROVISION SHALL BE NULL AND VOID.
  6. Use of Equipment. So long as no Event of Default (as defined in Paragraph 11, below) shall have occurred, Lessee shall be entitled to possession and use of the Equipment for the term of the Lease in its lawful business in accordance with the provisions of the Lease. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached to, or imbedded in, or permanently resting upon, real property or any building thereon. If requested by Lessor with respect to any item of the Equipment, Lessee will obtain and deliver to Lessor waivers of interest or liens in recordable form, satisfactory to Lessor, from all persons claiming any interest in the real property on which such item of the Equipment is installed or located.
  7. No Warranties; Consequential Damages Excluded.
    • Disclaimer of Warranties. Lessee acknowledges that: Lessor is not the manufacturer of the Equipment nor the manufacturer’s agent or representative; the Equipment is of a size, design, capacity, description and manufacture selected by the Lessee; Lessee is satisfied that the Equipment is suitable and fit for its purposes; and LESSOR HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT, NOR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER; Lessor shall not be liable to Lessee for any loss, damage, or expense of any kind or nature caused, directly or indirectly, by the Equipment or the use or maintenance thereof or the failure or operation thereof, or the repair, service or adjustment thereof, or by any delay or failure to provide any such maintenance, repairs, service or adjustment, or by any interruption of service or loss of use thereof or for any loss of business howsoever caused. Lessor shall not be liable for any consequential damages as that term is used in U.C.C. Article 2A. No defect or unfitness of the Equipment shall relieve Lessee of the obligation to pay any installment of rent or any other obligation under the Lease. Lessor shall have no obligation under the Lease in respect of the Equipment and shall have no obligation to adjust or service the Equipment, except as may be agreed in the applicable Ordering Document. Lessor agrees, so long as there shall not have occurred or be any Event of Default as defined in Paragraph 11 or event which with lapse of time or notice, or both, might become an Event of Default hereunder, that Lessor will permit Lessee, as Lessee’s sole and exclusive remedy hereunder, to enforce in Lessee’s own name and at Lessee’s sole expense any manufacturer’s warranty or agreement in respect of the Equipment to the extent that such warranty or agreement is assignable.
    • Exclusion of Consequential Damages.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE LEASE, LESSOR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LESSEE OR ANY THIRD PARTY, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, OR BENEFITS OF USE OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH LOSSES ARE CONSTRUED TO BE CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, AND EVEN IF LESSOR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THE LEASE WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE FROM ANY OTHER PROVISION AND IS A SEPARABLE AND INDEPENDENT ELEMENT OF RISK ALLOCATION AND IS INTENDED TO BE ENFORCED AS SUCH. THE PARTIES ALSO AGREE THAT, REGARDLESS OF THE FAILURE OF ANY SOLE OR EXCLUSIVE REMEDY APPLICABLE TO THE EQUIPMENT OR THE LEASE, LESSEE WILL NOT BE ENTITLED TO ANY CONSEQUENTIAL DAMAGES OF WHATSOEVER KIND OR NATURE. THE PARTIES INTEND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AS AN INDEPENDENT AGREEMENT APART FROM ANY SOLE AND EXCLUSIVE REMEDY APPLICABLE TO THE EQUIPMENT OR THE LEASE.

  1. No Agency. Lessee acknowledges and agrees that neither the manufacturer nor any salesman, representative or other agent of the manufacturer is an agent of Lessor. No salesman, representative or agent of the manufacturer is authorized to waive or alter any term or condition of the Lease and no representation as to the Equipment or any other matter by the manufacturer or any salesman, representative or other agent of the manufacturer shall in any way affect Lessee’s duty to pay rent and perform its other obligations as set forth in the Lease.
  2. Loss or Damage to Equipment; Insurance.
    • Risk of Loss. From the date Lessor delivers the Equipment to Lessee, Lessee hereby assumes and shall bear the entire risk of loss for theft, damage, destruction or other injury to the Equipment from any and every cause whatsoever. NO SUCH LOSS OR DAMAGE SHALL IMPAIR ANY OBLIGATION OF LESSEE UNDER THE LEASE WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT. In the event of damage or loss to the Equipment (or any part thereof) and irrespective of payment from any insurances coverage maintained by Lessee, but applying full credit therefor, Lessee shall at the option of Lessor, (i) place the Equipment in good repair, condition and working order; or (ii) replace the Equipment (or any part thereof) with like equipment in good repair, condition and working order and transfer clear title to such replacement equipment to Lessor, whereupon such replacement equipment shall be deemed the Equipment for all purposes; or (iii) pay to Lessor the following amounts, not as a penalty, but herein liquidated for all purposes, an amount equal to the sum of (A) any accrued and unpaid rent as of the date the loss, theft, damage or destruction occurred (“Date of Loss”) plus interest at the rate of one and one-half percent (1.5%) per month (not to exceed any maximum lawful rate); (B) the present value of all future rentals reserved in the Lease and contracted to be paid over the unexpired term of the Lease discounted at a rate equal to the discount rate of the Federal Reserve Bank of New York as of the Date of Loss; (C) the present value of the agreed upon or estimated residual value of the Equipment as of the expiration of the Lease or any renewal thereof discounted at a rate equal to the discount rate of the Federal Reserve Bank of New York as of the Date of Loss; and (D) any other amount otherwise then due and owing under the Lease or which otherwise will become due and owing irrespective of the fact that the Equipment has been damaged, destroyed, lost or stolen including any additional taxes or other charges that may otherwise arise by reason of the damage, destruction, loss or theft of the Equipment. Upon Lessor’s receipt of such payment, Lessee shall be entitled to the proceeds of any recovery in respect of any such item of Equipment from insurance or otherwise to the extent that said proceeds do not exceed the total amount paid by Lessee in accordance with clauses (A) through (D) above, and any such excess shall be retained by Lessor.
    • Lessee shall obtain and maintain for the entire term of the Lease, at its own expense (as primary insurance for Lessor and Lessee), property damage and commercial general liability insurance and insurance against loss or damage to the Equipment including, without limitation, loss by fire (including so-called extended coverage), theft, collision and such other risks of loss as are customarily insured against on the type of Equipment leased hereunder and by businesses in which Lessee is engaged, in such amounts, in such form and with such insurers as shall be reasonably satisfactory to Lessor provided, however, that (i) the amount of commercial general liability insurance coverage shall not be less than $1,000,000 and (ii) the amount of insurance against loss or damage to the Equipment shall be no less than the greater of the replacement cost or fair market value of the Equipment. Each insurance policy will name Lessee as an insured and Lessor as an additional insured and loss payee thereof as Lessor’s interests may appear, shall contain cross-liability endorsements and shall contain a clause requiring the insurer to give Lessor at least 30 days prior written notice of any material alteration in the terms of such policy or of the cancellation thereof. Lessee shall furnish to Lessor a certificate of insurance or other evidence satisfactory to Lessor that such insurance coverage is in effect, provided, however, that Lessor shall be under no duty either to ascertain the existence of or to examine such insurance policy or to advise Lessee in the event such insurance coverage shall not comply with the requirements hereof. Lessee further agrees to give Lessor prompt notice of any damage to, or loss of, the Equipment, or any part thereof; all insurance covering loss or damage to the Equipment shall contain a breach of warranty clause satisfactory to Lessor. In the event Lessee fails to obtain insurance in accordance with this provision, the lessor may, at its option, obtain the insurance or declare Lessee’s failure an event of default. In the event that Lessor obtains insurance, it shall be entitled to prompt reimbursement from the Lessee of the costs, including reasonable administrative costs, of doing so.
  3. Events of Default. An Event of Default shall occur hereunder if Lessee:
    • fails to pay any installment of rent or other payment required hereunder when due and payable, by acceleration or otherwise, and such failure continues for a period of 5 days; or
    • breaches any representation or warranty contained herein or made any incorrect representation or warranty in any other document furnished to Lessor in connection herewith; or
    • fails to keep the Equipment insured as required by Paragraph 10(b) herein, or fails to repair or replace any Equipment that suffers any material uninsured damage, loss, theft, or destruction, or fails to pay any amount demanded by Lessor pursuant to Paragraph 10(a) herein; or
    • fails to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder, and such failure or breach shall continue unremedied for a period of twenty (20) days after such failure or breach first occurs; or
    • without Lessor’s consent attempts to remove, sell, transfer, encumber, part with possession, or sublet any item of Equipment or permit a judgment or other claim to become a lien upon any or all of Lessee’s assets or upon the Equipment; or
    • shall (i) be adjudicated insolvent or a bankrupt, or cease, be unable, or admit its inability, to pay its debts as they mature, or make a general assignment for the benefit of, or enter into any composition or arrangement with creditors; (ii) apply for or consent to the appointment of a receiver, trustee or liquidator of it or of a substantial part of its property, or authorize such application or consent, or proceedings seeking such appointment shall be instituted against it without such authorization, consent or application and shall continue undismissed for a period of 60 days; (iii) authorize or file a voluntary petition in bankruptcy or apply for or consent to the application of any bankruptcy, reorganization in bankruptcy, arrangement, readjustment of debt, insolvency, dissolution, moratorium or other similar law of any jurisdiction, or authorize such application or consent; or proceedings to such end shall be instituted against it without such authorization, application or consent and such proceeding instituted against it shall continue undismissed for a period of 60 days; or
    • shall suffer an adverse material change in its financial condition from the date hereof, and as a result thereof Lessor deems itself or any of its Equipment to be insecure; or
    • shall be in default under any other agreement at any time in effect between Lessor (or any of its affiliates) and Lessee.
  4. Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, with or without cancelling the Lease, in its sole discretion, do any one or more of the following:
    • Upon written notice to Lessee cancel this the Lease;
    • Declare immediately due and payable all sums due and to become due hereunder for the full term of the Lease;
    • Without notice to Lessee, repossess the Equipment wherever found, with or without legal process, and for this purpose Lessor and/or its agents may enter upon any premises of or under the control or jurisdiction of Lessee or any agent of Lessee where the Equipment may be located, without liability for suit, action or other proceeding by Lessee (any damages occasioned by such repossession being hereby expressly waived by Lessee) and remove the Equipment therefrom; Lessee further agrees on demand, to assemble the Equipment and make it available to Lessor at a place to be designated by Lessor which is reasonably convenient to Lessor;
    • Exercise any other right or remedy which may be available to it under the Uniform Commercial Code or any other applicable law;

A cancellation hereunder shall occur only upon notice by Lessor and only as to such items of Equipment as Lessor specifically elects to cancel and the Lease shall continue in full force and effect as to the remaining items, if any. If the Lease is deemed at any time to be one intended as security, Lessee agrees that the Equipment shall secure, in addition to the indebtedness set forth herein, indebtedness at any time owing by Lessee to Lessor. No remedy referred to in this Paragraph is intended to be exclusive, but shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. No express or implied waiver by Lessor of any default shall constitute a waiver of any other default by Lessee or a waiver of any of Lessor’s rights.

  1. Lessee shall indemnify and hold Lessor harmless from and against all claims, losses, liabilities (including, but not limited to, negligence, tort, breaches of statutory duties, and strict liability), damages, judgments, suits, and all legal proceedings, and any and all costs and expenses in connection therewith (including attorneys’ fees) (collectively “Claims”) arising out of or in any manner related to the possession, use, transportation, storage, operation, maintenance, repair, return or other disposition of the Equipment including, without limitation, Claims for injury to or death of persons and for damage to property.
  2. Lessee’s Waivers. To the extent permitted by applicable law, Lessee hereby waives any and all rights and remedies conferred upon a Lessee by sections 2A-508 through 12A-522 of the UCC, including but not limited to Lessee’s rights to: (i) cancel the Lease; (ii) repudiate the Lease; (iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover damages from Lessor for any breaches of warranty or for any other reason; (vi) a security interest in the Equipment in Lessee’s possession or control for any reason; (vii) deduct all or any part of any claimed damages resulting from Lessor’s default, if any, under the Lease; (viii) accept partial delivery of the Equipment; (ix) “cover” by making any purchase, or lease of, or contract to purchase or lease Equipment in substitution for those due from Lessor; (x) recover any general, special, incidental or consequential damages, for any reason whatsoever; and (xi) specific performance, replevin, detinue, sequestration, claim and delivery or the like for any Equipment identified to the Lease. To the extent permitted by applicable law, Lessee also hereby waives any rights now or hereafter conferred by statute or otherwise, which may require Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor’s damages as set forth in Paragraph 12 or which may otherwise limit or modify any of Lessor’s rights or remedies under Paragraph 12. Any claim or action for breach of warranty shall be commenced within one (1) year after any such cause of action accrues.
  3. Lessor’s Right to Perform for Lessee. If Lessee fails to perform or comply with any of its agreements contained herein, Lessor may perform or comply with such agreements and the amount of any payments and expenses of Lessor incurred in connection with such performance or compliance (including reasonable attorneys’ fees), together with interest thereon at the highest legal contract rate, shall be deemed additional rent payable by Lessee upon demand.
  4. Delays in Delivery of Equipment. Lessor shall not be liable for any delay in furnishing Equipment leased hereunder. As its exclusive remedy for any delay in furnishing Equipment leased hereunder, Lessee shall not be liable to Lessor for the rental charges provided herein with respect to any Equipment which Lessor is unable to deliver as required hereunder, for any periods which such Equipment is unavailable to Lessee by reason of such a delay on the part of Lessor.
  5. Further Assurances. Lessee will cooperate with Lessor for the purpose of protecting the interests of Lessor in the Equipment, the Lease and the sums due under the Lease. Lessor is authorized, if permitted by applicable law, to file one or more Uniform Commercial Code financing statements, precautionary or otherwise, as appropriate, disclosing Lessor’s interest in the Equipment, the Lease and the sums due under the Lease, without the signature of Lessee. Lessee will pay all costs of filing any financing, continuation, or termination statements with respect to the Lease, including, without limitation, any intangibles tax and/or documentary stamp taxes relating thereto. Lessee shall execute and deliver to Lessor upon request such other instruments and assurances as Lessor deems necessary or advisable for the implementation, effectuation, confirmation or perfection of the Lease and any rights of Lessor hereunder.
  6. Any notice provided for in this agreement shall be deemed sufficiently given if mailed to the other party at the address set forth above (in the case of Lessor) or in the Ordering Document (in the case of Lessee), or at any other address specified in a written notice given by either party to the other, by U.S. Registered or Certified Mail.
  7. Non-Cancelable Lease; Obligations Unconditional. The Lease cannot be cancelled or terminated except as expressly provided herein. Lessee hereby agrees that Lessee’s obligation to pay all rent and any other amounts owing hereunder shall be absolute and unconditional.
    • Governing Law; Waiver of Trial by Jury. ANY AND ALL MATTERS OF DISPUTE BETWEEN THE PARTIES TO THE LEASE, WHETHER ARISING FROM THE LEASE ITSELF OR ARISING FROM ALLEGED EXTRA CONTRACTUAL FACTS PRIOR TO, DURING, OR SUBSEQUENT TO THE FORMATION OF THE LEASE, INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, NEGLIGENCE OR ANY OTHER ALLEGED TORT OR VIOLATION OF THE LEASE, SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE. LESSEE AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE AND/OR FEDERAL COURTS IN THE STATE OF TENNESSEE, THE COUNTY OF DAVIDSON. LESSOR AND LESSEE HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THE LEASE OR THE CONDUCT OF THE RELATIONSHIP BETWEEN LESSOR AND LESSEE.
    • Attorney’s Fees. Lessee shall reimburse Lessor for all charges, costs, expenses and attorneys’ fees incurred by Lessor: (a) in defending or protecting its interests in the Equipment and the Lease; (b) in the execution, delivery, administration, amendment and enforcement of the Lease or the collection of any installment of rent or other amount payable by Lessee under the Lease; and (c) in any lawsuit or other legal proceeding to which the Lease gives rise, including, but not limited to, actions in tort.
    • Assignment by Lessor. Lessor may assign or transfer the Lease or Lessor’s interest in the Equipment without notice to Lessee. Any assignee of Lessor shall have all of the rights, but none of the obligations, of Lessor under the Lease (except as may be expressly assumed in writing by such assignee). Lessee agrees that it will not assert against any assignee of Lessor any defense, counterclaim or offset that Lessee may have against Lessor and that upon notice of such assignment or transfer from Lessor, it will pay all rent and other sums due under the Lease to such assignee or transferee. Lessee acknowledges that any assignment or transfer by Lessor shall not materially change Lessee’s duties or obligations under the Lease nor materially increase the burdens or risks imposed on Lessee.
    • Lessor’s failure at any time to require strict performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor’s right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default.
    • Provisions Severable. Any provision of the Lease which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The captions in the Lease are for convenience only and shall not define or limit any of the terms hereof.
  8. Survival of Lessee’s Covenants, Indemnities, Representations and Warranties. All representations, warranties, covenants and indemnities of Lessee made or agreed to in the Lease and any certificates delivered in connection herewith shall survive the expiration, termination or cancellation of the Lease for any reason for a period of ten years.
  9. Entire Agreement; No Oral Modification; Negation of Trade Usage and Course of Dealing. The Lease constitutes the entire, final, complete, and fully integrated understanding or agreement between Lessor and Lessee and there is no understanding or agreement, oral or written, as to the lease of the Equipment by Lessee which is not set forth herein. The Lease may not be supplemented, explained, or interpreted by any evidence of trade usage or course of dealing. The Lease may not be amended except by a writing signed by Lessor and Lessee and shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns.