Terms & Conditions
Construction Equipment Rental Terms and Conditions
1. Agreement.
Unless otherwise agreed in a written document signed by Stewart & Stevenson Power Products LLC (“SSPP”), these Rental Terms and Conditions (“Terms”) govern the rental of all equipment from SSPP (“Equipment”) by any individual or entity that rents such Equipment from SSPP (“Client”) and are incorporated into each of Client’s Rental Orders for Equipment from SSPP (each, a “Rental Order”). SSPP hereby rejects the terms of any purchase order, rental agreement or other document submitted by Client, unless the document is signed by a duly authorized representative of SSPP. The placing of a Rental Order with SSPP, the issuance of a purchase order for rental of Equipment from SSPP, or the receipt, acknowledgement or acceptance of Equipment for rental by Client constitutes Client’s acceptance of these Terms exactly as written. SSPP reserves the right, in its sole discretion, to modify or replace any of these Terms at any time, and such modifications or replacements shall apply to all rentals of Equipment from SSPP after the date of such modification or replacement. It is Client’s responsibility to review the Terms each time Client rents Equipment from SSPP.
2. Title.
SSPP is and shall remain the owner of the Equipment. Client will not acquire any equity or ownership interest in the Equipment by making rental payments or performing repairs. Client will not place any liens on the Equipment and will not allow third parties to encumber SSPP’s title to the Equipment.
3. Rental Term and Rental Period.
As to each piece of Equipment, the “Rental Term” is the time period for which Client has ordered such Equipment, as specified on the Rental Order. As to each piece of Equipment, the “Rental Period” is the time period that commences on the delivery of the Equipment to Client and ends upon its return to SSPP’s premises. Client shall pay rent on the Equipment at the rates set forth on the Rental Order for the entire Rental Period (and during repairs to Equipment returned to SSPP in a damaged or excessively worn condition as described in Section 10 below). No allowances will be made for Saturdays, Sundays, holidays, transit time, or for any period Equipment is not in actual use.
4. Payment Terms.
For Clients with an open credit account with SSPP, payments are due Net 30 from date of invoice. For Clients who do not have an open credit account with SSPP, payment is due upon delivery of Equipment. SSPP may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Equipment, until receipt of payment. If Client fails to pay for Equipment as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay SSPP all reasonable attorneys’ fees and collection costs incurred by SSPP. In addition to any other right of set-off or recoupment SSPP has under applicable law, Client agrees that, with respect to any amounts due from Client or Client’s affiliates to SSPP or SSPP’s affiliates, SSPP and its affiliates may set-off such amounts against any amounts owing to Client or Client’s affiliates.
5. Excess Usage Charge.
Rental rates are based upon maximum Equipment usage of: one shift of 8 hours per day; or upon 40 hours per week; or upon 176 hours per four weeks. If the Equipment is used longer during any specified period, overtime rental will accrue at the hourly rate of 1/8 of the daily charge (daily rental), 1/40 of the week charge (weekly rental) and 1/176 of the 4 week charge (4 week rental).
6. Written Safety Instructions; Training.
Operating instructions and safety manuals will be located inside of the Equipment. If Client is unable to locate operating instructions and safety manuals inside of the Equipment or if Client has any questions or concerns regarding the safe operation of the Equipment, Client must contact SSPP immediately. It is Client’s obligation to ensure that individuals operating the Equipment or working in proximity to the Equipment fully understand all safety and operating instructions associated with the Equipment.
7. Disclaimer of Warranties.
By receiving the Equipment, Client acknowledges the Equipment to be in good, safe and serviceable condition, and Client accepts the Equipment “AS IS” regardless of defects, latent or otherwise. SSPP makes no warranty, express or implied, with respect to the Equipment, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose. To the maximum extent permitted by law, all such warranties are hereby disclaimed by SSPP and waived by Client. Client’s sole remedy shall be the termination of the rental charges at the time of failure or discovery of defect, provided Client returns the Equipment to SSPP’s premises within 24 hours of the failure or discovery of defect.
8. Machine Maintenance and Repairs.
During the Rental Period, Client, at its own cost, shall perform all daily lube, fuel and daily maintenance on the Equipment as prescribed in the Original Equipment Manufacturer’s Operation and Maintenance Manual (the “OEM Manual”). SSPP will perform the required preventative maintenance during the Rental Period as prescribed in the OEM Manual. Upon request, Client will make the Equipment available for SSPP to perform such preventative maintenance during SSPP’s regular business hours. Client is not authorized to incur any expense for the account of SSPP.
9. Return of Equipment.
Upon expiration of the Rental Term set forth in the Rental Order (unless SSPP agrees in writing to an extension) or upon demand from SSPP prior to expiration of the Rental Term, Client shall return the Equipment to SSPP’s premises during SSPP’s regular business hours. Client shall be liable for all damages to, or loss of, the Equipment occurring because it was not returned within SSPP’s regular business hours. If the Rental Order for the Equipment states that SSPP will pick up the Equipment, Client will be responsible for all loss or damage to the Equipment until SSPP actually picks up the Equipment.
10. Damaged Equipment; Reasonable Wear and Tear:
Client shall return the Equipment at the end of the Rental Period in the same condition that it was received, reasonable wear and tear excepted. Client assumes and shall bear the risk of loss, theft, destruction of or damage to any part of the Equipment during the Rental Period. If the Equipment is returned in a damaged or excessively worn condition, Client shall pay SSPP the reasonable cost of repair (or the replacement cost, if Equipment cannot be repaired to SSPP’s satisfaction) and also shall pay rental on the Equipment at the regular rental rate until repairs have been completed or an adequate replacement obtained. “Reasonable wear and tear” means only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift (eight hours per day, five days per week) basis. Without limiting the generality of the foregoing statement, the following shall not be deemed reasonable wear and tear: damage resulting from lack of lubrication or failing to maintain necessary oil, water, and air pressure levels; damage resulting from lack of daily inspection and maintenance; and damage resulting from exposure to leach pads, scrap metal operations or other corrosive or harsh environments. Repairs to the Equipment shall be made to the reasonable satisfaction of SSPP, and in a manner that will not adversely affect the operation, safety, or value of the Equipment as determined by SSPP (for example, welding repairs rather than replacing a part will be at SSPP’s discretion). Client agrees that if Equipment is returned with a damaged ROPS (Rollover Protection Structures) or boom, Client will be required to pay replacement costs for the ROPS and/or boom (and any associated costs related thereto); thereafter, SSPP shall destroy the damaged ROPS and/or boom and Client shall have no right to salvage of the same.
11. Tires.
Repair and replacement of tires are not included in the rental rate. Client shall pay for any tire damage, regardless of the cause. All tires substituted by Client shall become SSPP’s property.
12. Insurance.
Prior to commencement of the Rental Term, Client must obtain, and must maintain in effect during the entire Rental Period, the following insurance: workers’ compensation insurance (in accordance with applicable law); employer’s liability insurance (not less than $1,000,000 per person, per accident); if renting a truck licensed for use on public highways, automobile liability insurance covering all owned, non-owned and hired vehicles (with a combined single limit of $1,000,000); general liability insurance ($1,000,000 per occurrence, $2,000,000 general aggregate), including coverage for products/completed operations and contractual liability; and physical damage insurance covering the full replacement value of the Equipment. Client’s required policies shall be endorsed to be primary to those of SSPP, and any insurance maintained by SSPP shall be excess and non-contributory. Client must provide an insurance certificate to SSPP evidencing all of the foregoing before commencement of the Rental Term. Additionally, Client’s required policies must be endorsed to include waivers of subrogation; Client’s general liability and automobile liability policies must be endorsed to name SSPP as an additional insured; and SSPP must be named as loss payee on the physical damage insurance. Such endorsements shall be provided to SSPP along with the insurance certificate. SSPP’s standard insurance requirements do not limit or qualify the liabilities, obligations or indemnities of Client hereunder.
13. Limitation of Liability; Indemnification.
In no event shall SSPP be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity for any special, incidental, indirect, punitive, exemplary, or consequential damages, including but not limited to lost profits, downtime, or loss of third party contracts, regardless of whether or not SSPP is advised of the possibility of such damages. In addition, SSPP’s maximum aggregate
liability for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to SSPP for rental of the Equipment to which such liability relates. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SSPP, ITS AFFILIATED COMPANIES, AND THEIR RESPECTIVE OWNERS, OFFICERS AND EMPLOYEES (COLLECTIVELY, THE “SSPP INDEMNITEES”), FOR, FROM AND AGAINST ANY AND ALL THREATENED OR ACTUAL CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES, EXPERT WITNESS FEES, COSTS AND EXPENSES) OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO: THE OPERATION, POSSESSION, USE, FAILURE, OR MAINTENANCE OF THE EQUIPMENT WHILE ON RENT TO CLIENT; THE BREACH OF ANY PROVISION OF THE RENTAL ORDER OR THESE TERMS BY CLIENT; PERSONAL INJURY, DEATH OR PROPERTY DAMAGE OR LOSS OF ANY NATURE WHATSOEVER ARISING FROM OR RELATED TO THE EQUIPMENT WHILE ON RENT TO CLIENT; THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CLIENT; ANY VIOLATION BY CLIENT OF APPLICABLE LAWS; AND CLAIMS BY CLIENT’S EMPLOYEES, CONTRACTORS AND SUBCONTRACTORS RELATED TO THE EQUIPMENT. THE FOREGOING INDEMNITY OBLIGATION SHALL BE WITHOUT REGARD TO THE NEGLIGENCE (WHETHER SOLE, CONCURRENT, CONTRIBUTORY, ACTIVE OR PASSIVE), STRICT LIABILITY OR OTHER FAULT OF ANY MEMBER OF THE SSPP INDEMNITEES. This indemnity obligation shall survive the term of the applicable Rental Order.
14. Default.
Client is in default if (a) Client fails to pay any installment of rent or other payment to SSPP when due; (b) Client fails to return the Equipment at the end of the Rental Term or upon demand; (c) Client fails to perform or observe any condition of the Rental Order or any other agreement with SSPP; (d) Client ceases doing business as a going concern, makes an assignment for the benefit of creditors, files a petition in bankruptcy or consents to or acquiesces in the appointment of a trustee, receiver or liquidator of all or any substantial part of its assets or properties; (e) Client abuses, neglects or attempts to remove, sell, transfer, encumber, part with possession of, or sublease the Equipment or any item thereof; or (f) SSPP in good faith deems
itself insecure.
15. Remedies; Retaking of Equipment.
SSPP reserves all rights and remedies available at law or under contract in the event of a default by Client, and SSPP may, at its option, demand that Client immediately deliver the Equipment to SSPP’s premises at Client’s expense. If the Equipment is not returned at the end of the Rental Term or for any reason it becomes necessary for SSPP to retake the Equipment to protect it from loss or damage, SSPP and its agents may, without notice or legal process, enter into any job, building, or place where the Equipment may be and repossess same by using all force necessary to do so. In the event of default, Client waives all rights to a prior judicial hearing, any further right to possession of the Equipment and all claims for injuries, damages or loss arising out of the repossession of the Equipment. Client shall pay all costs and expenses incurred by SSPP in retaking the Equipment.
16. Compliance with Laws and Regulations; Hazardous Materials.
Client shall not abuse, harm or improperly operate the Equipment. Client, at its sole expense, shall comply with all laws and regulations applying to the use, operation or possession of the Equipment. Client warrants and represents that it shall return the Equipment free from all toxic, hazardous or regulated materials, as those terms may be defined in applicable federal, state and local regulations and laws. Client shall indemnify, defend and hold SSPP harmless from any loss, claim or damage that may arise out of Client’s breach of these representations and warranties.
17. Additional Client Obligations.
At all times, Client shall advise SSPP of the exact location and condition of the Equipment and shall give SSPP immediate written notice of any lien or judicial process affecting the Equipment. SSPP may enter any job, building or place to inspect the Equipment. Client shall furnish SSPP with a complete written report of any accident involving the Equipment, including names and addresses of all witnesses and persons involved.
18. Choice of Law; Venue.
All Rental Orders shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its conflict of law provisions. The parties agree that the exclusive jurisdiction and venue for any proceedings at law or in equity to enforce any provision of, or based on any rights arising out of, the Rental Order or these Terms will be in the state or federal courts located in Harris County, Texas.
19. Privacy Policy.
Client consents to the collection, use, retention and disclosure of information by SSPP and its parent, subsidiary and affiliated entities (collectively, “SSPP Entities”) in accordance with SSPP’s Privacy Policy, which is posted at https:// https://www.stewartandstevenson.com/terms-of-use/ (as such Privacy Policy may be revised from time to time), and agrees that such information may be accessed by the SSPP Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
20. Equipment Information.
Equipment that is rented by Client may be equipped with equipment monitoring technology, which transmits data concerning the Equipment, its condition and its operation (“Telematics Information”) to SSPP and its affiliates. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. Notwithstanding anything herein to the contrary, transmission of Telematics Information shall not impose upon SSPP any obligation to monitor the Equipment while on rent to Client and/or to notify Client of any operational, performance or other issues associated with the Equipment.
21. Miscellaneous.
Client may not assign Client’s rights or obligations hereunder without SSPP’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and SSPP. Client warrants that the Equipment will be used for business or agricultural purposes and not for personal, family or household purposes.
22. Requirements Applicable to Rental of On-Highway Equipment.
The provisions of this Section apply to all rentals of Equipment that are authorized or used for operation on public roadways (“On-Highway Equipment”). Upon rental of On-Highway Equipment by Client, Client shall have complete control and supervision of the On-Highway Equipment (unless otherwise in the care, custody and control of SSPP). Client represents and warrants that, at all times such On-Highway Equipment is in Client’s care, custody or control, such On-Highway Equipment shall be operated only under the USDOT number and operating authority of Client (i.e., Client may not allow a third-party to transport such On-Highway Equipment without the written consent of SSPP). Further, Client shall comply with the Federal Motor Carrier Safety Administration (“FMCSA”) requirements set forth in 49 CFR 376.11(c) pertaining to the proper identification and marking of the On-Highway Equipment upon taking possession and prior to operating any On-Highway Equipment. Before giving up possession of the On-Highway Equipment, Client shall remove all identification showing it as the operating carrier. If Client provides drivers, such drivers must be qualified under and meet all applicable federal, state and local laws and regulations, including but not limited to a valid CDL in good standing.
The Rental Order shall constitute the receipt evidencing the transfer of possession of On-Highway Equipment as set forth in 49 CFR 376.11(b). The Rental Order shall be carried in the On-Highway Equipment by Client during the full term of the Rental Order. SSPP agrees to cooperate with all federal, state and local law enforcement officials nationwide to provide the identity of any client who operates the On-Highway Equipment.
Client will provide persons to manage and/or operate the On-Highway Equipment. Such persons are under the sole control and direction of Client, and are not acting in the capacity of independent contractors or employees of SSPP.
