1. DEFINITIONS. “Aerial Rental” means the corporate subsidiary of Aerial Rental Inc. identified on the front page from whom the Customer has rented the Equipment.  “Equipment” means any one or more of the items identified as such on the first page of this agreement, and shall include any accessories, attachments or other similar items delivered to Customer, such as, but not limited to, air hoses, electric cords, blades, welding cables, liquid fuel tanks, nozzles, and other similar items.  “Customer” means the person or entity identified as such on the first page of this agreement, including any representative, agent, officer or employee thereof.  “Store Location” means the Aerial Rental address in the upper left-hand corner on the first page of the rental agreement.
  2. AUTHORITY TO SIGN. Any individual signing this contract represents and warrants that he or she is of legal age, and has the authority and power to sign this rental agreement as or for the Customer.
  3. DISCLAIMER OF WARRANTIES. AERIAL RENTAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANT ABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.  THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMERS INTENDED USE, OR THAT IT IS FREE FROM DEFECTS.  EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS RENTAL AGREEMENT, AERIAL RENTAL DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION.
  4. INDEMNITY/HOLD HARMLESS/DAMAGES. Customer acknowledges and assumes all risks inherent in the operation and use of the Equipment by Customer, and will take all necessary precaution to protect all persons and property from injury or damage while in possession of the Equipment.  Aerial Rental shall not be responsible to Customer or to any other party for any loss, damage or injury (including any loss of profits, business interruption or other special or consequential damages) caused by, resulting from, or in any way connected with the Equipment, its operation or use, or any defect with respect thereto.  Customer agrees to defend, indemnity and hold Aerial Rental harmless from and against any and all liability, claims and damages of any kind (including attorneys’ fees) for injuries or death to persons and damage to property arising out of the use, maintenance, instruction, operation, possession, ownership or rental of the Equipment, however caused.
  5. RECEIPT & INSPECTION OF EQUIPMENT. Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer’s needs.  Customer is familiar with the proper operation and use of each item of Equipment.  Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues and other devices and materials used to connect the Equipment to Customer’s towing vehicle, if any; Aerial Rental is not responsible for any damage to Customer’s towing vehicle caused by detachable hitches or mirrors.
  6. USE OF EQUIPMENT. Customer will not use or allow anyone to use the Equipment:  (a) for any illegal purpose or in an illegal manner, (b) without a license, if required under any applicable law, or (c) who is not qualified to operate it.  Customer agrees, at Customer’s sole expense, to comply with all applicable municipal, state, and federal laws, ordinances and regulations (including O.S.H.A.) which may apply to the use of the Equipment.  Customer agrees to check filters, oil, fluid levels, tire air pressure, clean and visually inspect the Equipment daily and to immediately notify Aerial Rental when Equipment needs repair or maintenance.  Customer acknowledges that Aerial Rental has no responsibility to inspect the Equipment while it is in the Customer’s possession.
  7. MALFUNCTIONING EQUIPMENT. Should the Equipment become unsafe, malfunction or require repair, Customer shall immediately cease using such Equipment and immediately notify Aerial Rental if such condition is the result of normal operation, Aerial Rental will repair or replace the Equipment with similar Equipment in working order if such replacement Equipment is available.  Aerial Rental has no obligation to replace Equipment rendered inoperable by misuse, abuse or neglect.  Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure.  The Equipment must be returned to the Store Location within twenty-four hours from the time of defect in order to terminate rental charges.
  8. RETURN OF EQUIPMENT, DAMAGED & LOST EQUIPMENT. At the expiration of the term Customer will return the Equipment to the Store Location during Aerial Rental’s regular business hours, such Equipment to be in the condition and repair as when delivered to Customer, subject to reasonable wear and tear, as defined below.  Customer shall be liable for all damages to or loss of the Equipment, including any damage during transit to or from Customer.  In the case of the loss or destruction of any Equipment, or inability or failure to return same to Aerial Rental for any reason whatsoever, Customer will pay Aerial Rental the then full replacement list value together with the full rental rate as specified until such Equipment is replaced.  If Aerial Rental has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer, Customer shall pay Aerial Rental the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed.  Aerial Rental shall be under no obligation to commence repair work until Customer has paid to Aerial Rental the estimated cost therefor.
  9. REASONABLE WEAR AND TEAR. Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift (eight hours per day, 40 hours per week) basis.  The following shall not be deemed reasonable wear and tear:  (a) damage resulting from lack of lubrication or maintenance of necessary oil, water and air pressure levels; (b) except where Aerial Rental expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventive maintenance suggested in the manufacturer’s operation and maintenance manual; (c) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rated capacity of the Equipment; (d) damage in the nature of dents, bending, tearing, staining and misalignment to or of the Equipment or any part thereof; (e) wear resulting from use in excess of shifts for which rented; and (f) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.  Repairs to the Equipment shall be made to the reasonable satisfaction of Aerial Rental and in a manner which will not adversely affect the operation, manufacture’s design or value of the Equipment.
  10. LATE RETURNS. If not timely returned, in addition to the rental rates set forth in this agreement, Customer agrees to pay an additional charge of 1/6 of the daily rate for each hour the Equipment is retained beyond the expiration of the rental period. Customer agrees to pay for any damage to or loss of the Equipment occurring between the time the Equipment is returned and the commencement of Aerial Rental’s next business day in the event the Equipment is returned to the Store Location at other than Aerial Rental’s regular business hours.
  11. RENTAL PERIOD & CALCULATION OF CHARGES. Rental charges commence when the Equipment leaves the Store Location and end when the Equipment is returned thereto. Rental charges accrue during Saturday, Sundays, and Holidays.  Rental rates are for normal usage based on an eight hour day, 40 hours per week and 160 hours per month.  On power equipment, operation in excess of one shift (eight hours per day) will be at Aerial Rental’s standard premium rates.  Customer will truthfully and accurately certify to Aerial Rental the number of shifts the Equipment was operated.  Customer’s right to possess the Equipment terminates on the expiration of the rental period set forth on page one of the agreement and retention of possession after this time is a material breach of this agreement.  TIME IS OF THE ESSENCE in this agreement.
  12. DEPOSIT. In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guaranty by Customer of the full and complete performance of each and all of the terms, covenants, and agreements to be performed by Customer hereunder, and in

 

the event of any breach by Customer thereof said deposit shall be credited against any damages, costs or expenses incurred by Aerial Rental as a result of such breach.

  1. PAYMENT. All rentals shall be payable in full upon return of the Equipment to Aerial Rental or prior to 30 days following Aerial Rental’s invoice to Customer whichever comes first. Customer acknowledges that timely payment of rental charges is essential to Aerial Rental’s business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment.  Customer and Aerial Rental agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of 2% per month (24% per annum), or the maximum amount allowed by applicable law.
  2. FAILURE TO DELIVER. Customer releases and discharges Aerial Rental from any and all liability or damages (including consequential and special damages) which might be caused by Aerial Rental’s failure or inability to deliver any Equipment by any specified date or time.
  3. TITLE/NO PURCHASE OPTION/NO LIENS. This agreement is not a contract of sale, and title to the Equipment shall at all times remain with Aerial Rental. Unless covered by a specific supplemental agreement signed by Aerial Rental the Customer has no option or right to purchase the Equipment.  Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances.
  4. TIRE/TUBE REPAIR OR REPLACEMENT. Repair or replacement of tires and tubes is the responsibility of the Customer, and is not included in the rental rate.
  5. DEFAULT. Should Customer in any way fail to perform, observe or keep any provision of this rental agreement, Aerial Rental may at its option do any one or more of the following: (a) terminate this agreement; (b) declare the entire rent immediately due and payable and commence legal action therefor; (c) retake possession of the Equipment, holding the Customer liable for all rental and other charges; or (d) pursue any other remedies available by law.
  6. REPOSSESSION OF EQUIPMENT. In the event of any actual or anticipatory breach by Customer, Aerial Rental’s employees or agents may, without notice or legal process, go upon Customer’s property and take all action reasonably necessary to repossess the Equipment. Customer waives all claims for damages and losses, physical or pecuniary, caused thereby, and shall pay all costs and expenses incurred by Aerial Rental in retaking the Equipment.
  7. CUSTOMER’S INSURANCE COVERAGE. Customer agrees to maintain and carry, at its sole cost, adequate liability, physical damage, public liability, property damage and casualty insurance for the full replacement cost of the Equipment, including all risks of loss or damage covered by the standard extended coverage endorsement to cover any damage or liability arising from the handling, transportation, maintenance, operation or use of the Equipment during the entire rental period. When requested, Customer shall supply to Aerial Rental proof of such insurance by Certificate of insurance clearly setting forth the coverage for the Equipment and naming Aerial Rental as loss payee and additional insured; such insurance and evidence thereof to be in amounts and form satisfactory to Aerial Rental.  The Certificate of insurance and policy shall provide that Aerial Rental shall receive not less than thirty (30) days notice prior to any cancellation of the insurance required hereunder.
  8. ACCIDENTAL DAMAGE WAIVER PROVISIONS. Accidental damage waiver is not insurance. In the event Customer has elected to accept and pay for the Accidental Damage Waiver on the first page of this agreement, Aerial Rental agrees that notwithstanding the terms and conditions set forth in this agreement to the contrary.  Customer shall not be responsible for direct physical damage to the Equipment if it is used for its specific purpose, and not misused in any fashion.

Notwithstanding the foregoing, Aerial Rental will not waive a claim for loss or damage:  (a) to Equipment as a result of overloading or exceeding its rated capacity; (b) to motors, generators, drifts or other electrical appliances or devices caused by portable electric current, whether or not said portable current is supplied by Aerial Rental; (c) to hydraulic cylinders; (d) to tires and tubes caused by blow out, bruises, cuts, punctures or other causes inherent in the use of the Equipment; (e) resulting from a lack of, or negligent lubrication or other improper servicing of the Equipment, or damage resulting from misuse, abuse, failure to maintain, cleanliness, proper fuel, hydraulic, coolant or pressure levels; (f) due to mysterious disappearance, or any Equipment which is not returned for whatever reason, including theft; (g) for any and all accessories, such as, but not limited to air hoses, electric cords, blades, welding cable, liquid fuel tanks and other similar items and accessories; (h) use of Equipment in violation of any terms of this agreement, law, ordinance or regulation.

If Customer has insurance covering any loss or damage to which this Accidental Damage Waiver relates, this Accidental Damage Waiver becomes secondary and shall only apply to the extent such damage is not covered by Customer’s insurance.  Customer shall exercise all rights available to Customer under said insurance and take all action necessary to process said claim.  Customer further agrees to assign said claim and any and all proceeds from such insurance to Aerial Rental.  Upon request of Aerial Rental Customer shall fully cooperate with Aerial Rental and furnish the name of Customer’s insurance agent, insurance company, and information concerning Customer’s insurance coverage.

As a condition for Aerial Rental’s agreement pursuant to this Accidental Damage Waiver provision, Customer must immediately notify Aerial Rental of any loss or damage.

  1. ENTIRE AGREEMENT/ONLY AGREEMENT. This written agreement represents the entire agreement between the Customer and Aerial Rental. There are no oral or other representations or agreements not included herein.  None of Aerial Rental’s rights or Customer’s rights may be changed and no extension of the terms of this agreement may be made except in writing, signed by both Aerial Rental and Customer.  The use of Customer’s purchase order number on this agreement is for Customer’s convenience only.  This rental agreement supersedes any purchase order or other Customer provisions or forms whether sent to or received prior, or subsequent to this rental agreement.
  2. NO ASSIGNMENT, LENDING OR SUBLETTING. Customer shall not sublease, subrent, assign or loan the Equipment and any such action by Customer shall be void. Customer agrees to use and keep the Equipment at the job site set forth on the front page of this form unless Aerial Rental approves otherwise in writing.
  3. OTHER PROVISIONS. Any failure of Aerial Rental to insist upon strict performance by Customer of any terms and conditions of this agreement shall not be construed as a waiver of Aerial Rental’s right to demand strict compliance. Customer has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Aerial Rental as the draftsperson of this agreement.

Customer agrees to pay all reasonable costs of collection, court attorneys’ fees and other expenses incurred by Aerial Rental in the collection of any charges due under this rental agreement or in connection with the enforcement of its terms.

Customer shall pay the rental charge without any offsets, deductions of claims.

The federal and state courts in the county in which the Store Location is located shall have exclusive jurisdiction over all matters relating to this agreement.  Trial by jury is waived.  Service of process may be effected by certified mail, return receipt requested.  Aerial Rental shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.

CRIMINAL WARNING:  The use of false identification to obtain Equipment or the failure to return the Equipment by the Date Due in may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.