1. DEFINITIONS. As used herein, “Agreement” refers to the Purchase Order – Equipment Rental from Combi to Customer and the terms and conditions contained herein. All other terms used herein but not defined herein have the meaning ascribed thereto in the Purchase Order – Equipment Rental.
2. TERM. The Term will commence upon the delivery of the Equipment (or Customer’s pickup as the case may be). Upon termination of the Term, Customer will return the Equipment to Combi during normal business hours to a location as designated by Combi. Customer hereby acknowledges that (i) Combi may suffer economic damages, for which Customer will be liable, as a result of Customer’s failure to timely return the Equipment as provided above, and (ii) until such time as Customer returns the Equipment, Customer’s obligations hereunder, including payment of Rent, will continue; provided, however, such use by Customer shall not be construed as a renewal of this Agreement, and Combi may take possession of the Equipment at any time. Customer further acknowledges that even if Customer requests pickup of the Equipment, Customer will remain responsible for all liability assumed by Customer under this Agreement until the Equipment is actually picked up by Combi. Until such time as Combi receives actual possession of the Equipment, Customer agrees to hold such Equipment in a safe and secure manner. Customer will clean and return the Equipment to Combi in the same condition as the Equipment was in when received, reasonable wear and tear excepted, and Customer agrees to pay for any loss or damage to the Equipment occurring during the Term. In the event Combi determines that the Equipment is not clean or in proper condition, Combi may charge Customer a commercially reasonable cleaning, repair, or replacement fee. Notwithstanding the foregoing, in the event that Customer exercises its right to purchase the Equipment as set forth in the Agreement, the obligations of Customer to return the Equipment to Combi under this Section will not apply.
3. RENTAL PAYMENT. The Rent shall be payable on the 1st day of each month during the Term, and shall be paid to Combi at the address set forth in the Agreement, or to such other place as Combi may from time to time designate in writing. The Rent shall be paid by Customer free of all claims, demands, or other setoffs against Combi. In the event payment is not made within thirty (30) days from the due date thereof, there will be a five percent (5%) monthly service charge on the balance over thirty (30) days.
4. DELIVERY, INSTALLATION & ACCEPTANCE. Combi will use commercially reasonable efforts to deliver the Equipment by the Delivery Date. Customer shall be responsible for any and all shipping costs, and shall bear the risk of loss on the Equipment after the Equipment is loaded with the carrier at Combi’s facility. Combi shall provide to Customer one (1) service technician for start-up (i.e. installation) and training service call for one (1) eight (8)-hour day at the Facility on a date mutually acceptable to Combi and Customer. Customer shall be exclusively responsible for and, at its own expense, provide for: (i) all utility connections and standard tools and other standard service materials, as reasonably requested by Combi’s service technician, and (ii) the security and safety of Combi’s service technician. Any materials provided by Combi shall be Customer’s exclusive responsibility and Customer shall be liable for and hold Combi harmless against all damages to Combi’s material or personnel including, but not limited to, damages caused by fire, flood, storm, theft or any other causes, regardless of Customer’s control thereof. Acceptance of the Equipment by Customer constitutes Customer’s acknowledgment that it has inspected the Equipment and that it is good, safe, serviceable and fit for the use intended, unless Customer notifies Combi within 24 hours of acceptance that the Equipment is not serviceable and specifying the reason therefor. Failure to provide such notice constitutes Customer’s acknowledgment that the Equipment is in good mechanical condition at the time of receipt.
5. LIMITED WARRANTY. The sole and exclusive warranty of Combi to Customer is that the Equipment, when shipped, shall be free from defects in material and workmanship when used in the manner and for the purpose for which designed, and in accordance with all instructions and directions for installation, operation and maintenance furnished by Combi for a period of one (1) year from receipt by Customer. Combi’s warranty hereunder shall be subject to the following conditions: (a) Customer shall notify Combi in writing promptly upon, and in no event later than ninety (90) days after discovery of facts giving rise to any claim under this warranty, stating specifically the nature of the claim, the date of discovery of same and identifying the Equipment by serial number, and failure to so notify Combi shall fully and completely relieve Combi from any obligation under this warranty; (b) No claim under the terms of this warranty will be accepted by Combi unless and until the nature of the claim shall have been established to the satisfaction of an authorized representative of Combi and no return of the Equipment claimed to be defective will be accepted unless accompanied by a Returned Material Authorization supplied by Combi; (c) Combi's obligations under this warranty are expressly limited to the repair or replacement, at Combi's option and expense, of the Equipment or components determined by Combi as aforesaid to be defective under the terms of this warranty, and do not extend to any damages arising from any alleged act or omission of Combi; (d) This warranty applies only to Equipment properly used and maintained and is expressly non-applicable to Equipment or components which have been repaired, altered or changed other than in accordance with instructions and directions furnished by Combi or its authorized representatives, or to Equipment which has not been operated or utilized in accordance with instructions or directions furnished by Combi, or which has been operated or treated in any manner which, in the reasonable judgment of Combi, adversely effects its reliability and performance; and (e) No defect or unfitness in any item of Equipment shall relieve Customer of the obligation to pay Rent or any other obligation under the Agreement except as expressly provided herein.
Combi will not be responsible for any modifications to the Equipment or any part or component thereof and any such modifications will void the limited warranty set forth in this Section. This warranty does not cover parts that have been installed improperly, abused, misused, neglected according to planned maintenance procedures, serviced by non-Combi employees or representatives, used for purposes other than for which the Equipment was originally designed, and/or damaged due to use of accessories supplied by an individual or entity other than Combi. The warranty stated above is made in lieu of all other warranties, express of implied, all of which are expressly disclaimed, including, but not limited to the implied warranties of merchantability, fitness for a particular purposes, or arising out of course of dealing or performance, custom, usage or trade. The remedies of Customer set forth herein are exclusive and are in lieu of all other remedies.
6. DISCLAIMER. In no event shall Combi be liable for any special, indirect, incidental, exemplary or consequential damages, including, but not limited to, loss of business or profits, even if advised or should have known of the possibility of such damage or loss. The liability of Combi, whether in contract, tort, under any warranty, or otherwise, shall not extend beyond the limited warranty described above, and any and all damages imposed upon Combi under this Agreement or otherwise shall not exceed the amount Customer has paid to Combi hereunder.
7. USE. Customer will use and operate the Equipment, and assumes all responsibility to ensure that the Equipment is used only: (i) at the Facility, (ii) for the purposes for which the Equipment was manufactured and intended as set forth in the manufacturer’s safety and operating instructions, (iii) by a properly trained individual employed by Customer who has received the training necessary to operate the Equipment in a correct and safe manner, and (iv) in compliance with all laws, regulations, rules and orders of lawfully constituted authorities. Use of the Equipment in violation of any of the preceding clauses is prohibited and will constitute improper use. Combi expressly disclaims any responsibility for Customer’s compliance or failure to comply with any governmental safety or health regulation or operational and/or maintenance standard or requirement.
8. LOSS AND DESTRUCTION. In the event of loss or total destruction of the Equipment, or loss of possession thereof, or Customer’s inability to return the Equipment to Combi, for any reason whatsoever, Customer will pay to Combi the full replacement value of the Equipment, together with the Rent until such time as Combi, using commercially reasonable efforts, is able to replace the Equipment. Customer’s liability to Combi as provided in this Section will be applicable regardless of the circumstances giving rise to or causing the subject damage or destruction.
9. MAINTENANCE. Customer will maintain the Equipment as prescribed in any instruction manuals provided by the manufacturer or Combi and as required by good operating practice, and will be responsible for performance of all daily routine visual and operational inspections, checking and maintaining hydraulic or other fluid levels, and basic routine service.
10. OWNERSHIP. The Equipment shall at all times remain the sole and exclusive property of Combi and Customer shall have no right or property interest therein other than the right to use same under this Agreement. Customer shall keep the Equipment free and clear of all liens, claims and encumbrances of any kind whatsoever, and shall not take any action resulting in any lien, claim or encumbrance against Combi or the Equipment and indemnify and hold Combi harmless therefrom. Combi shall have the right to display notice of its ownership by affixing to the Equipment an identifying plate, stencil, or other indicia of ownership. Combi shall have the right to make any filings it deems necessary or appropriate in order to protect its interest, including but not limited to the filing of a UCC financing statement. Customer agrees to execute any and all documents necessary for the preservation, or perfection or enforcement of Combi’s interest in the Equipment and if Customer fails to do so, Combi may execute such documents on Customer’s behalf and in Customer’s name.
11. ASSIGNMENT. Without Combi’s prior written consent, which consent shall be in Combi’s sole discretion, Customer shall not assign, sublet, transfer, pledge, hypothecate, or otherwise dispose of this Agreement or any interest therein or sublet or lend the Equipment or permit it to be used by anyone other than Customer. Combi shall have the right to assign its rights and obligations hereunder without the consent of Customer. Upon any permitted assignment by Customer, the assignee will become bound by all of the terms of this Agreement otherwise required to be performed by Customer. Consent by Combi to assignment of Customer’s interest will not be deemed to release Customer from any obligations under this Agreement.
12. TAXES. Any sales or excise tax or other similar governmental charge imposed upon Combi or Customer by reason of this Agreement or the service herein provided will be paid by Customer regardless of when said tax or charge is assessed or imposed. Said payment will be in addition to the charges reflected on the Agreement.
13. EXCUSE OF PERFORMANCE. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes thereof, governmental action, domestic or foreign, riot, civil commotion, fire and other casualty and all other causes beyond the reasonable control of Combi will excuse Combi’s performance for a period equal to such prevention, delay, or stoppage.
14. DEFAULT. Any of the following events or conditions shall constitute a default of Customer: (a) Default in the payment of Rent or any other sums due hereunder for a period of five (5) days after the same becomes due; (b) Any other breach of the terms and conditions of this Agreement, which breach continues for a period of thirty (30) days after receipt of written notice from Combi detailing such breach; (c) If any writ or order of attachment, execution, or other legal access against Customer is levied on any or all Equipment and not released or satisfied within ten (10) days; or (d) The filing of a petition or action for bankruptcy, reorganization, insolvency, or receivership against Customer or its property or if Customer shall enter into an agreement with or make an assignment for the benefit of its creditors, or if Customer shall otherwise be insolvent or unable to pay its debts as they become due.
15. REMEDIES. Upon the happening of any event of default as set forth above, Combi may, without notice, terminate this Agreement and shall have the right to do any or all of the following without demand or notice of any kind: (a) Declare due, sue for, and receive from Customer the sum of all Rent and other amounts due and owing under this Agreement plus the sum of the Rents and other amounts to become payable during the balance of the Term of this Agreement, unless otherwise specified in writing. (b) Without notice to or demand upon Customer, retake possession of the Equipment without any court order or other process of law, and, for such purpose, enter upon any premises where the Equipment is located and remove the same therefrom without being liable to any suit, action, or other proceeding by Customer, and Customer hereby waives any right of action against Combi for such retaking or entry; (c) at its option, sell the Equipment at public or private sale for cash or on credit and may itself become the purchaser at such sale, in which event (i) Customer shall be liable for arrears of Rent, if any, the expense of retaking possession, and the removal of the Equipment, court costs and attorney fees, in addition to the balance of the Rent provided for herein, or in any renewal hereof, less the net proceeds of the sale of the Equipment, if any, after deducting all costs of taking, storage, repair and sale, and reasonable attorney’s fees., (ii) Customer waives any and all rights to notice and to a judicial hearing with respect to the repossession of the Equipment by Combi, and (iii) Customer shall remain liable to Combi for any deficiency in any such sale; and/or (c) Pursue any other remedy at law or in equity. Customer agrees to pay all attorneys’ fees and expenses incurred in the enforcement of the terms and conditions of this Agreement.
16. INSURANCE. Customer shall procure and continuously maintain and pay for all risk insurance against loss of and damage to the Equipment for not less than the full replacement value of the Equipment, naming Combi as loss payee, and combined public liability and property damage insurance with limits as approved by Combi, naming Combi as an additional named insured and a loss payee. The insurance shall be in such form and with such company or companies as shall be reasonably acceptable to Combi and shall provide at least thirty (30) days advance written notice to Combi of any cancellation, change or modification. Customer shall provide Combi with a certificate evidencing such insurance.
17. SUBROGATION. In the event of any loss or damage to the Equipment for which Customer may have a right of recovery, Combi will be subrogated to any such right of Customer to recover against any person, firm or corporation, and Customer will execute and deliver whatever else is necessary to secure such rights. Customer will cooperate fully with Combi and/or its insurer(s) in the protection of Combi’s right to subrogation and will neither take nor permit any action to prejudice Combi’s rights or insurer’s rights with respect thereto.
18. INDEMNIFICATION. Customer assumes the risk of any and all damage or injury to persons or property of any kind or nature, including wrongful death, caused by, resulting from, or in any way connected with the Equipment or the use or operation of the Equipment during the Term or while in the possession, custody or control of Customer or the breach of any provision of this Agreement. Customer agrees to indemnify and hold Combi, its members, directors, officers, employees, affiliates, successors and assigns harmless from and against any and all suits, actions, proceedings, claims, judgments, demands, damages, losses, costs and liabilities whatsoever (including, without limitation, all attorneys’ fees and expenses) of any nature or kind caused by, or resulting from, or in any way connected with the Equipment or the use or operation of the Equipment while the Equipment is in the possession, custody or control of Customer or the breach of any provision of this Agreement, whether or not caused by the active or passive negligence or other fault of Combi or any other person indemnified hereunder, including, without limitation, bodily injury or wrongful death of employees of Customer or anyone else, property damage, and any of the foregoing arising or imposed in accordance with the doctrine of strict or absolute liability. Customer’s indemnification obligations contained in this Section will survive the expiration or termination of this Agreement.
19. MISCELLANEOUS. The provisions of this Agreement will be deemed severable, so that any part hereof found to be invalid or unenforceable will be deemed excluded therefrom, and the remaining parts will remain in full force and effect. Any failure by Combi to insist upon strict performance by Customer, of any provision of this Agreement will not be construed as a waiver by Combi of its right to demand strict compliance herewith. The captions herein are provided solely for reference and will have no bearing on the interpretation of this Agreement. This Agreement embodies the entire and final understanding between Combi and Customer with respect to the transaction(s) set forth on the front of this Agreement and supersedes any pre-existing agreements, arrangements, representations or warranties with respect thereto, whether oral or written. The Agreement shall be governed and construed in accordance with the laws of the State of Ohio. Any dispute or controversy arising from this Agreement, not otherwise resolved pursuant to arbitration, shall be heard by the local courts sitting in Stark County, Ohio, or the Federal District Court sitting in the Northern District of Ohio.
