ATTACHMENT B
Terms and Conditions
1. PARTIES
In the following Terms and Conditions, the term "Lessee" shall apply equally to purchasers and the singular shall include the plural and Action Equipment and Scaffold Co.shall be referred to as "Action".
2. WARRANTY DISCLAIMER
Lessee acknowledges that Action is not the manufacturer of the equipment leased or sold pursuant to this contract. Accordingly, Action makes no representations or warranty, express or implied, about said equipment. All warranties, including implied warranties for merchantability or fitness for a particular purpose, are hereby explicitly disclaimed. All equipment is accepted by Lessee "as is".
3. RENTAL OF EQUIPMENT
The lease period commences on the date equipment has been turned over to the Lessee for use. The lease period ceases on the day Action is notified by the Lessee that use of the leased equipment is no longer required. Lessee agrees to maintain said equipment in the same good order and condition as when received and shall return said equipment cleaned, and in presently usable condition. Lessee shall pay for any of the leased equipment lost or damaged while under lease to Lessee at sale or repair prices prevailing at the time of replacement or repair. Should this lease be terminated for any reason, the Lessee agrees to return the leased equipment within seventy-two (72) hours of the notice of termination. Such notice shall be deemed to be given when it is deposited in the U.S. Postal Service, postage paid, return receipt requested.
4. STORAGE AND SUBLEASING
The leased equipment shall be used and/or stored only at the building site or location designated on the front page of the proposal. The Lessee shall not sublease or move any leased equipment without first securing written permission of Action.
5. TITLE OF EQUIPMENT
The equipment leased hereunder during the entire term of this lease shall at all times be the sole property of Action. Nothing herein contained shall in any way affect the title of Action in and to said leased equipment. It is expressly understood and agreed that no part of the equipment shall become part of any building by reason of its being placed therein, annexed thereto or any manner becoming permanently affixed. Lessee agrees to notify owner of the realty of the terms of this paragraph and agrees to indemnify Action from any damage it may sustain by reason of its inability or difficulty in recovering possession of said equipment.
​6. INDEMNIFICATION AND INSURANCE
A. Indemnification: Lessee shall indemnify and defend Action against and hold Action harmless from any and all claims, actions, suits, proceedings, costs, attorney's fees, expenses, damages or liabilities (including, but not limited to, payments made under workmen's compensation law), which:
I. related to injury or to destruction of the property, or bodily injury, illness, sickness, disease, or death of any person (including, but not limited to, employees of the Lessee); and
II. are caused, or claimed to be caused, in whole or in part, by the equipment leased herein or by the liability, conduct or negligence (including active, passive, primary or secondary) of Action, its agents or employees, or anyone whose acts any of them may be liable.
III. The parties agree that Action shall only be liable or responsible for actions of willful misconduct on its part.
B. Duty to Defend: Lessee shall, at its own cost and expense, defend Action against all suits or proceedings commenced by anyone (including, but not limited to, employees of the Lessee) in which Action is a named party for which Action is alleged to be liable or responsible as a result of or arising out of the equipment sold or leased herein, or any alleged act or omission by Action, and Lessee shall be liable and responsible for all costs, expenses and attorney's fees incurred in such defense and/or settlement, judgment or other resolution. In the event that such action is commenced naming Action as a party, Action may elect to defend such action on its own behalf and Lessee agrees that it is liable for all costs, expenses and attorney's fees incurred by Action in such defense.
C. Intent and Purpose: It is the purpose of this provision to shift the risk of all claims relating directly or indirectly to the equipment leased or sold herein to the Lessee. Except as otherwise expressly limited herein, it is the intent of the parties that all indemnity obligations and/or liabilities assumed by such parties under the terms of this agreement may be without limit and without regard to the cause or causes thereof (including any pre-existing conditions), or the negligence of any party or parties, whether such negligence be sole, joint, concurrent, active or passive.
D. Workmen's Compensation: Lessee shall indemnify and defend Action against and hold Action harmless from any and all claims, actions, suits, proceedings, costs, attorney's fees, expenses, damages, and liabilities which are brought against Action by or on behalf of any Lessee's employees. Any payments made to or on behalf of such employee or Lessee, pursuant to any workmen's compensation statute, by any party, including Lessee, shall in no way diminish or otherwise affect the Lessee's obligations to Action otherwise contained in this agreement.
E. Insurance: Lessee agrees to secure comprehensive general liability insurance with a limitation of not less than one million dollars ($1,000,000.00) including coverages for products and contractual liability, providing for the indemnification, investigation, defense, and settlement of any and all claims resulting from or arising out of the equipment leased or sold herein, or an alleged act or omission by Action, which insurance shall be for the protection of Lessee and Action.
7. RIGHT TO INSPECT
At any time during the term of this lease, Action, or its duly authorized agents, may, but is not required to, enter upon the building site of the Lessee for the purposes of examining and inspecting the use, storage, or condition of the equipment leased herein.
8. REPOSSESSION AND COLLECTION
If (a) Lessee fails to make any payment when due, or (b) Lessee fails to maintain, operate or return the equipment as provided herein, or (c) Lessee becomes bankrupt, or (d) a receiver or assignee is appointed for Lessee's business, or (e) Action feels its position has become insecure for any reason, or (f) Lessee violates any of the provisions of the agreement, then Action, or its agents may, without notice, enter the premises occupied by the Lessee and take possession of said equipment with or without court order. If any action to repossess becomes necessary, Lessee agrees to pay, in addition to all other charges specified in this agreement, the costs of repossessing said equipment, including but not limited to, reasonable attorney fees. All invoices are subject to interest at a rate of eighteen (18%) per annum if not paid within thirty (30) days. In addition, Lessee agrees to pay for all costs of collection on any unpaid invoices, including, but not limited to, reasonable attorney's fees and collection agency fees.
9. TAXES
Any tax imposed by federal, state, or municipal authorities upon production, sale, and shipment of the equipment covered hereby, may, at Action's option, be added to the amount to be paid hereunder unless said taxes are included in the fee schedule.
10. REMEDIES
Lessee sole remedy for any breach on the part of Action shall be, in the case of leased equipment, the return of the equipment and cancellation of the lease, and shall be, in the case of sold equipment, the return of the equipment and credit for payments made, less deductions at the prevailing rates for any damages to the equipment not caused by Action's breach.
11. COMPLIANCE WITH SAFE PRACTICES
Lessee acknowledges that it has received certain gratuitous suggestions regarding the use of the equipment leased or sold herein from representatives of Action and agrees that same has neither been offered nor accepted as engineering advise. Lessee agrees that is shall be its own responsibility, and not the responsibility of Action, to see to it that the equipment leased or sold herein is utilized in accordance with the Code of Safe Practices or Instruction Manual which has been provided to Lessee and in accordance with all applicable industry and government codes, regulations, standards and practices. Lessee further agrees that it will make the Code of Safe Practices or Instruction Manual available for its employees and others at the job location.
12. MERGER
All oral conversations, representations and agreements have been merged and this agreement supersedes any and all prior offers, agreements and understandings. This agreement may be amended only by written agreement countersigned by an officer or authorized agent of Action.
13. GOVERNED BY ARIZONA LAW
It is agreed between the Lessee and Action that this agreement shall be construed and governed according to the laws of the State of Arizon.