1. RENTAL: Trinity Power Rentals Inc. (“Trinity”) rents the personal property (“Equipment”) described in the attached Rental Agreement (“Rental Agreement”) to Customer. The Rental Agreement and these General Terms and Conditions are together defined as the Agreement. Trinity and Customer are together defined as the Parties.
2. RENTAL PERIOD: The rental period starts upon the shipment of the Equipment to Customer and shall terminate when Equipment is returned to Trinity.
3. AMOUNTS PAYABLE: Customer shall pay Trinity the rent plus applicable taxes plus Additional Charges (as defined below) for the duration of the rental period as follows:
4. SHIPPING/INSTALLATION/OTHER CHARGES: Unless otherwise set forth in a Rental Agreement, Customer agrees to pay all costs and expenses related to preparing, handling, storing, shipping, installing, and transporting the Equipment. If Customer requests that Trinity perform any services, including but not limited to shipping, transport and installation at Customer’s site by third party vendors of Trinity (“Third Party Vendors”), Customer agrees to pay Trinity’s actual costs and expenses (plus applicable taxes and charges) incurred by Trinity. Customer acknowledges that any quote or estimate relating to Third Party Vendors provided to Customer in the Rental Agreement is an estimate only, is subject to change, and shall not bind Trinity or limit Customer’s obligation to pay to Trinity its actual incurred costs and expenses. Trinity’s rates for services may be adjusted due to overtime, labor availability, weather, urgency, extraordinary circumstances, delays, circumstances out of Trinity’s control, or for any reasonable reason determined by Trinity.
5. TIMING OF PAYMENT: Customer shall pay all rent, taxes, Additional Charges and any other amounts owing to Trinity under this Agreement not later than 30 days after the Rental Invoice Document Date, unless otherwise specified in the Agreement. All overdue payments shall bear interest at the lesser of eighteen (18%) percent per annum (1.5% per month) or the maximum amount allowed by law, but recovery or waiver of such interest will not waive any of Trinity’s rights under this Agreement including termination for non-payment and any remedies available under applicable law. Trinity may require Customer to pay an advance deposit to be applied to any amounts owed to Trinity. Time is of the essence of this Agreement.
6. APPLICATION OF PAYMENT: Trinity has the right to apply any and all payments received by Customer to any amount owed by Customer to Trinity as Trinity may elect, including amounts owed pursuant to other contracts between Customer and Trinity.
7. DELIVERY: Before or upon the delivery of the Equipment to Customer, Customer may require an inspection of the Equipment. If Customer takes delivery of the Equipment, the Equipment is conclusively presumed to be in good working condition and be in accordance with this Agreement when delivered to the location directed by Customer. CUSTOMER’S RIGHT OF INSPECTION SHALL BE IN LIEU OF ANY WARRANTIES OR GUARANTEES AND NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE RENTAL AGREEMENT OR REPRESENTED TO CUSTOMER, IT IS AGREED BY THE PARTIES THAT NOTWITHSTANDING ANY OTHER TERM OF THE AGREEMENT, TRINITY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, RELATED TO THE EQUIPMENT, ITS CONDITION, OPERATION, QUALITY, MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, OR ITS PERFORMANCE. Trinity may substitute any comparable Equipment, and Equipment (or its substitutes) is subject to availability. Other than substitutions, discrepancies between the packing list or the Rental Agreement and the actual shipment to Customer must be reported immediately to Trinity upon receipt of the Equipment; otherwise, Customer is conclusively deemed to have received the items on the packing list or Rental Agreement.
8. AVAILABILITY:Trinity reserves the right to substitute Equipment at an equal or greater value without notice. A quote or estimate under the terms of the Rental Agreement is not a guarantee of availability, and Trinity shall not be liable if an item of Equipment is unavailable for the rental period.
9. INSPECTION AFTER DELIVERY: Customer may arrange with Trinity to inspect the Equipment at its expense. Upon reasonable notice, Trinity shall at any and all times have the right to enter into and upon the premises or place where the Equipment may be located for the purpose of inspecting the same or observing its use, provided Trinity will make reasonable efforts not to interrupt Customer’s business unless necessary.
10. MAINTENANCE AND OPERATION: Customer shall safely use, operate, and maintain the Equipment (including performing regularly scheduled maintenance) in a good operating order, repair, and appearance, all in accordance with the recommendations of Trinity and the manufacturer, and all at Customer’s cost. Customer represents it is familiar with the Equipment’s prudent operation and use. Only competent and qualified individuals shall move and operate the Equipment. Customer assumes full responsibility for ensuring the safe operation of the Equipment for its intended purpose and full responsibility for any costs or expenses resulting from operating and maintaining the Equipment. Customer shall immediately inform Trinity in the event any Equipment requires repair or alteration. Customer shall only use qualified persons approved by Trinity to repair or alter the Equipment, and shall not repair or alter the Equipment without Trinity’s prior written consent, which may be withheld in Trinity’s discretion. All repairs, replacement parts, supplies, attachments, etc. furnished or affixed to the Equipment shall become Trinity’s property.
11. DAMAGE AND REPLACEMENT: During the rental period, Customer agrees to immediately inform Trinity in writing of any suspected, anticipated, or actual loss, damage, destruction, misplacement, or theft of the Equipment related to Customer or a third party’s acts or omissions. Following such notification, Trinity may, at its sole discretion, elect to either (i) terminate this Agreement and repossess the Equipment, or (ii) proceed to repair or replace the Equipment. In the event Trinity elects to repair or replace the Equipment:
In either of these events, Customer shall pay rent on the Equipment until the Equipment is fully repaired and/or the entire replacement or repair cost is received by Trinity.
12. CUSTOMER’S OBLIGATIONS: Customer shall:
13. PERSONAL PROPERTY: Customer shall not take title to or legal interest in Equipment. 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 thereof or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. Customer acknowledges that any property of Trinity, including the Equipment, that is affixed or attached to any other property is solely to enhance the use of Trinity’s property and shall remain the personal property of Trinity.
14. INSURANCE: Customer agrees to maintain at its own expense, commercial general liability, “all risks” physical damage insurance, including flood, earthquake, loss of rent, and any other insurances required to indemnify Trinity against any loss to or of the Equipment to the extent of new replacement value at the date of replacement or cash equivalent, such insurance coverage shall sufficiently cover the interest of Trinity in said equipment. This insurance shall be kept in full force and effect from the time the Equipment is leased out to the Customer or is shipped by Trinity until Customer returns it to Trinity during Trinity’s normal business hours with Trinity’s acknowledgement. Customer will, on demand, furnish Trinity with a Certificate of Insurance evidencing the applicable insurance coverage. Such certificate(s) shall include general liability limits of not less than $5,000,000 per occurrence, property replacement insurance to cover full replacement value or cash equivalent of all rented equipment as outlined on the related quotation and shall be endorsed to include Trinity Power Rentals, Inc. as an additional insured with respect to liability and/or loss payee with respect to the Equipment that is being leased and provide that the applicable insurance policies may not be cancelled or materially modified except on thirty (30) days written notice to Trinity. Customer shall, immediately on demand, deliver certificates of insurance, police reports, and any other information related to any potential or actual insurance claims. Customer shall maintain workers compensation insurance for its employees and agents during the rental period provided by a workers’ compensation insurance carrier authorized to provide such insurance in the state in which the Equipment is rented by Customer and in accordance with applicable statutory requirements. All policies shall be primary and noncontributory and shall contain a waiver of subrogation. Any payments made under the insurance policy shall be to the benefit of Trinity.
If Customer fails to keep and maintain said insurance during the rental period, Trinity, at its option, may effect such insurance and Customer shall pay Trinity all fees, costs, expenses, assessments, charges, deductibles, and taxes in relation to exercising this option upon Trinity invoicing the Customer as Additional Charges.
15. GENERATORS AND EQUIPMENT USING OIL: If Customer rents a generator or other Equipment that uses oil or other fluids for its mechanical operation:
16. RETURN OF EQUIPMENT: At its expense, Customer must return the Equipment and its appurtenances to Trinity or where Trinity may reasonably direct at the end of the rental period (or at such other time agreed to by Trinity and Customer) in a clean state, in good repair, and in good condition, and no less than the same condition the Equipment was in when shipped by Trinity to Customer (ordinary wear and tear excepted). If Equipment is not returned in such manner, Customer shall pay Trinity for all costs related to cleaning, repairing, or replacing the Equipment, as required. Customer shall pay Trinity full replacement of cable that is damaged or length compromised. Trinity may require the return of the Equipment at any time on demand for any past, ongoing, or anticipated breach of the Agreement, as solely determined by Trinity.
17. DEFAULT: If Customer fails to make any payment when due, becomes or threatens to become bankrupt or insolvent or subject to receivership proceedings, fails to comply with any of its covenants or obligations under this Agreement, or if the Equipment is lost, damaged, stolen, destroyed, or seized, Customer shall be in default and in addition to any other remedy or right, Trinity may at its option terminate this Agreement and in addition to any remedy and right it has under this Agreement, Trinity may:
18. RISK, INDEMNITY, RELEASE, AND LIMITATION OF LIABILITY:
19. DISPUTE RESOLUTION: All disputes between the Parties arising under this Agreement shall be resolved first by good faith negotiations between principals of the Parties.
If such negotiation is not successful in resolving the dispute within ten (10) days of the meeting, the parties agree to submit such dispute to confidential mediation in Harris County Texas, USA. If such mediation is not successful in resolving the dispute within an additional thirty (30) days, either party may submit the dispute to binding arbitration, before a single neutral arbitrator, under the Commercial Arbitration Rules of the American Arbitration Association, for arbitration to be held in Harris County, Texas, USA.
20. NOTICE: All communications to be given under this Agreement shall be in writing and will be deemed to be properly given if transmitted by facsimile transmission, emailed, or delivered to the address of the party directly, and will be deemed to have been received, if transmitted by facsimile transmission or email on the day such facsimile or email was sent, or if physically delivered, upon the date of actual delivery. Such communication will be sent to the address of the Parties as set out in the Rental Agreement, or by which the Parties have previously communicated, or as otherwise directed.
21. NON-WAIVER: Trinity’s failure at any time to require strict performance by Customer of any of the provisions hereof shall not waive or diminish Trinity’s right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default.
22. SEVERABILITY, INTERPRETATION: Each section of this Agreement is severable. If any provision or portion of a provision of this Agreement is held unenforceable, the Parties agree that such provision shall be enforced to the fullest extent permissible by the laws of the State of Texas. Any provision of this Agreement which refers to the words “include,” “includes,” or “including” shall be deemed to be followed by the words “without limitation.”
23. ENTIRE AGREEMENT AND CONFLICTS: These General Terms and Conditions, along with the Rental Agreement, and any Addendum attached, constitute the entire Agreement between Trinity and Customer and it shall not be amended, altered, or changed except agreed to in writing. If there is a conflict or ambiguity between these General Terms and Conditions and the Rental Agreement, the Rental Agreement shall govern.
24. GOVERNING LAW; EXCLUSIVE VENUE: This Agreement shall be governed, construed, enforced and performed in accordance with the laws of the State of Texas, without regard to principles of conflicts of law. Any legal suit, action, or proceeding relating to this Agreement shall be instituted in the United States federal court or state court located in the State of Texas in the City of Houston and County of Harris, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The headings in this Agreement form no part of the Agreement and shall be deemed to have been inserted for convenience only. This Agreement shall enure to the benefit of, and be binding upon, the Parties as well as their respective executors, administrators, representatives, successors, and permitted assigns.
25. AUTHORITY: By signing the Rental Agreement, Customer representative warrants that it has capacity and full legal authority to sign on behalf of Customer and bind Customer to the terms of this Agreement. If Customer consists of more than one person, the obligations and liabilities under this Agreement shall be joint and several.
26. LOSS DAMAGE WAIVER (“LDW”): This section only applies if Customer elects to accept the LDW on the Rental Agreement by marking the appropriate box, and pays the additional LDW Fee and deductible:
Notwithstanding Customer’s acceptance of the LDW, Customer acknowledges that LDW is not a warranty and Customer will be liable for all resulting loss or damage to the Equipment and expense of Trinity, to the extent it: (i) is not accidental or results from negligence of Customer which includes, but is not limited to, the use or operation of the Equipment in a reckless or abusive manner, or intentional damage to the Equipment by Customer or by Customer’s permission, or (ii) occurs under any of the following circumstances: