The Customer requests that McCann Industries, Inc. (“hereinafter referred to as “McCann”), sell or rent, demo, loan (“Rent, demo, loan, hereinafter referred to as “Rent and/or “Rented”), equipment on account in consideration of which the Customer and McCann agree as follows.
TERMS OF LEASING: Customer hereby agrees to Rent from McCann, at the rentals and subject to the conditions herein contained, the equipment, parts and attachments described herein and referred to as the “Equipment or “Rented Equipment”. (a) The Rental Period: The rental day shall end 24 hours from date of leaving McCann’s property. The rental week shall end seven days from date and time of leaving McCann’s property. The rental months shall end twenty-eight days from date and time of leaving McCann’s property. (b) The minimum rental period shall be one day (c) Rental invoices will be dated from date of acceptance by Customer.
DETERMINATION OF RENTAL CHARGES: The Customer shall pay rental for the entire Rental Period on each article of equipment named in the List of Equipment Rented at the rate therein stipulated and shall not be subject to any deductions on account of any non-working time. Rental rates are based on an eight-hour day, forty-hour week, one hundred sixty-hour month. Usage in excess of these amounts shall be charged an subject to any deductions on overtime rate of 1% times the aforesaid rental rates.
INSPECTION OF EQUIPMENT: Customer acknowledges that Customer has had an opportunity to personally inspect the equipment, finds it suitable for Customer’s needs, in good condition, and that Customer understands its proper use. Customer further acknowledges Customer’s duty to inspect the equipment prior to use and notify McCann of any defects or pre-existing damage.
SPECIAL SKILL AND KNOWLEDGE The Customer acknowledges that it has special skill and knowledge in the selection and use of the Sold or Rented Equipment and material from McCann and expressly disclaims any reliance upon any statements or representations made or to be made by McCann regarding the Sale or Rent of any equipment or material. The Customer also waives any liability upon McCann for any direct, special, or consequential damages that Customer may suffer. Customer acknowledges that it and its employees who will operate the Sold or Rented Equipment have received all appropriated instructions and training on the use of and loading and unloading of the Sold or Rented Equipment. In the event the Customer Rents any equipment, the Customer shall obtain insurance covering all risk of loss, theft, or damage for the Rented Equipment and in the event of any such loss, the proceeds of said insurance shall be paid to and are assigned to McCann.
DELIVERY OR PICKUP: The Customer authorizes any of its employees it sends to McCann to deliver or pick up Rented Equipment or materials, to sign Rent agreements, receipts and related documents and repair orders for said equipment and agrees to be bound by all the terms of said documents. The Customer is responsible for loading and unloading Rented Equipment or materials. If McCann’s employees assist in loading or unloading, the Customer agrees to assume the risk of, and hold McCann harmless from, any property damaged or personal injuries attributable to the negligence of McCann, including McCann’s employees. In the event the Customer directs McCann to deliver any Sold or Rented Equipment, and the Customer does not have a representative present at the time of delivery, the Customer authorizes McCann to leave the Sold or Rented Equipment at the designated place of delivery. Upon said delivery, the Customer will be responsible for said Sold or Rented Equipment.
MAINTENANCE/REPAIRS: The Customer shall not add, remove, alter, disfigure or cover up any numbering, lettering or insignia displayed upon the equipment, and shall see that the Rented Equipment is not subjected to careless or rough usage. The Customer shall at his own expense maintain the Rented Equipment and its attachments in good repair and operative condition, and in such condition return it to the McCann Customer agrees to immediately discontinue the use of the Rented Equipment should it at any time, become unsafe or in a state of disrepair, and Customer will immediately (one hour or less) notify McCann of the facts and within 24 hours provide McCann with written notice describing the condition. McCann agrees, in its sole discretion either to repair the Rented Equipment within a reasonable time, or provide Customer with a like item if available, or make the Rented Equipment available at another time if acceptable to Customer, or adjust the rental charge. This provision does not relieve Customer from Customer’s other obligations under this contract.
ACCIDENT NOTIFICATION. In the event of an accident, Customer will immediately (one hour or less) notify McCann of the facts. Furthermore, Customer agrees to immediately discontinue the use of the Rented Equipment (a) until a proper investigation of the accident is concluded, (b) if the equipment is unsafe or (c) is in a state of disrepair.
DAMAGE TO PROPERTY TRANSPORTED: Customer is responsible for all loss or damage to the Sold or Rented Equipment being transported and waives any and all claims relating thereto against McCann.
DAMAGED, LOST, STOLEN OR DIRTY EQUIPMENT. Customer, assumes the entire risk of loss, regardless of cause, with respect to the Rented Equipment, reasonable wear and tear excepted. Accrued rental charges cannot be applied against the purchase or cost of repair of damaged, lost or stolen goods. Customer must pay for Rented Equipment, unreturned when due or damaged beyond repair at its list price when Rented. The cost of repairs will be borne by Customer whether performed by McCann or, at McCann’s option, by another. In the event of damage to any Rented Equipment, the Customer shall be responsible to pay for the repair and replacement of said property or parts to said property at the regular shop rates of McCann for labor and the manufacturer’s suggested retail prices for parts. In the event any Rented Equipment is damaged beyond repair, the Customer shall be responsible for the regular market value of the property as determined by similar sales of similar equipment by McCann. The Customer is specifically responsible for the cost of replacing and repairing any tires or tire tubes. Customer also agrees to pay a reasonable cleaning charge for Rented Equipment returned dirty.
INDEMNITY: The Customer shall indemnify and hold McCann harmless against any and all claims, demands, liabilities, losses, damages, and injuries whatsoever kind or nature, and all attorney’s fees, costs and expenses relating to or in any way arising out of the ordering, acquisition, delivery, loading, unloading, installation, possession, maintenance, use, operation, control, loss damage, destruction, return, surrender, sale or disposition of the Sold or Rented Equipment from McCann. Furthermore, Customer agrees to defend and/or pay for any legal costs in the event suit is filed against McCann. This indemnity shall not be affected by any termination of this agreement with respect to Sold or Rented Equipment
GENERAL LIABILITY COVERAGE:
Customer, at its own expense, must carry general liability insurance with minimum liability limits of $1 million per occurrence for bodily injury, including death, and $500,000 per occurrence for property damage. The insurance policy shall name McCann Industries, Inc as additional insured. By signing this agreement Customer acknowledges such coverage.
Customer shall obtain insurance covering all risks of loss, theft, or damage for the Rented Equipment (unless waived per above) and in the event of any such loss, the proceeds of said insurance shall be paid to and assigned to McCann.
Each policy of insurance maintained by Customer as required by this agreement, shall provide that the insurer shall give McCann not less than 30 days prior written notice before such policy or the coverage afforded thereby shall be altered, terminated or cancelled, and provide that McCann’s interest under such policy shall not be adversely affected by an act or omission (whether or not negligent, willful, contrary to the terms of such policy or applicable law or otherwise) of Customer or anyone acting or purporting to act on its behalf, and that McCann may but shall not be obligated to pay any premium or other sum payable in respect therefore Customer authorizes McCann to file an insurance claim on their behalf in the event equipment is returned with damage and/or is determined to be missing or stolen.
SUPPLYING OPERATORS: Unless otherwise mutually agreed in writing, the Customer shall supply and pay all operators in connection with Rented Equipment, and shall employ none thereof who are incompetent to perform their respective duties or who have not been properly trained in the operation of Rented Equipment.
TITLE: Title to the Rented Equipment shall at all times remain with McCann and shall remain personal property.
ASSIGNMENTS, SUBLEASES, & LOANS: McCann may assign its rights under this rental agreement without Customer’s consent, but will remain bound by all obligations herein. Customer may not assign its rights under this contract or sublease or loan the Rented Equipment without McCann’s written permission, Any purported Assignment by Customer is void.
TERMINATION OF AGREEMENT: Should the Customer fail to make any payment more than five (5) days after its due date, or become bankrupt, or fail to maintain and operate or to return the Sold or Rented Equipment as provided by the Agreement, or substantially violate any provision thereof, the McCann may, without notice, terminate this Agreement, take possession of the Sold or Rented Equipment without becoming liable for trespass, and recover all monies due, full damages for any injury to, and all expenses incurred, in returning the Sold or Rented Equipment Customer does hereby waive any and all rights which in or it/he may have to a judicial hearing or court procedures prior to said retaking. In the event of termination of this agreement, Customer shall immediately provide McCann with the exact location of the Sold or Rented Equipment and return the same to McCann. Customer further agrees to pay any and all costs, expenses and attorneys’ fees incurred with the retaking of the Sold or Rented Equipment from any party or from any location
DISCLAIMER OF WARRANTIES: MCCANN MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE SOLD OR RENTED EQUIPMENT’S MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Customer’s sole remedy for any existing or future defect in the Rented Equipment shall be the termination of the rental charges at the time of the discovery of the defect, provided the Rented Equipment is returned to McCann within twenty-four hours from discovery of the defect. McCann shall not be responsible to Customer or to any agent employee of Customer or to any other party for any loss, damage, or injury of any and every nature whatsoever; including but not limited to any special or consequential damages, caused by, resulting from, or in any way connected with, the Rented Equipment, the operation or use of the Rented Equipment, or any defect in or failure of the Rented Equipment.
OSHA COMPLIANCE The exact manner in which this Sold or Rented Equipment will be used and the qualifications of the user and the equipment or lack of equipment of the user are beyond the control of the McCann McCann therefore expressly disclaims any responsibility for Customer’s compliance or failure to comply with OSHA and/or other governmental safety or health regulations or standards. Customer is responsible to comply with OSHA and/or other governmental safety or health regulations or standards
MISCELLANEOUS: (a) This agreement is and is intended to be a Lease, and Customer does not acquire hereby any right, title, or interest in or to the Rented Equipment except the right to use the same under the terms hereof (b) The relationship between McCann and Customer shall always and only be that of McCann and Customer. Customer shall never at any time during the term of this Lease for any purpose whatsoever be or become the agent of McCann and McCann shall not be responsible for the acts or omission of Customer, or its agents. (c) Time is of the essence hereof. (d) McCann’s rights and remedies with respect to any of the terms and conditions of this Lease shall be cumulative and not exclusive and shall be in addition to all of the rights and remedies as outlined in McCann’s General Sales Agreement in performance. (e) The invalidity of any portion of this Lease shall not affect the force and effect of the remaining valid portion thereof (f)This agreement supersedes any inconsistent provision in any purchase order. McCann’s use of а purchase order number customer’s convenience and identification only. Absence of a PO number shall not constitute grounds for non-payment of charges when the Customer has had possession. or the right to possession of the Sold or Rented items charged. (g)The parties agree that this is the entire agreement and that no oral representation or agreement has been made which would modify this agreement or be a condition precedent or subsequent to the enforcement of this agreement and that this agreement may not be modified except by a writing signed by each of the parties.
PAYMENT TERMS AND SECURITY INTEREST The Customer shall pay the full amount of any outstanding balance shown on the monthly statement within thirty (30) days of the invoice date. Should payment not be received by McCann according to the terms stated, the entire balance is considered in default and due for immediate payment. Customer agrees to pay a service charge on the outstanding balance for which payment has not been received according to terms stated. The service charge shall be a minimum of 1-1/2% per month of the Customer’s outstanding past due balance, after deducting current payments and credits Such service charges shall become part of the Customer’s outstanding balance. Customer agrees to pay McCann a reasonable processing fee to cover any check returned by Customer’s bank as unpaid. If the Customer fails to pay pursuant to the terms of this agreement and McCann elects to take action to collect this account, the Customer shall pay all costs incurred by McCann including, but not limited to: Attorney’s fees, collection agency fees, court costs, deposition and transcript costs, sheriff’s fees, special process server fees, expert witness fees and bond costs, THE CUSTOMER ASSIGNS AS SECURITY FOR ANY INDEBTEDNESS INCURRED OR TO BE INCURRED TO MCCANN UNDER THIS ACCOUNT ALL OF THE CUSTOMER’S PRESENTLY OWNED AND EXISTING AND HEREAFTER ACQUIRED AND ARISING ACCOUNTS. ACCOUNTS RECEIVABLE, CONTRACT RIGHTS, CHATTEL PAPER, EQUIPMENT, INVENTORY, AND ALL PROCEEDS OF THE FOREGOING COLLATERAL. CUSTOMER APPOINTS ANY REPRESENTATIVE OF MCCANN AS CUSTOMER’S ATTORNEY-IN-FACT TO SIGN AND FILE A UCC-1 FINANCING STATEMENT TO PERFECT THE SECURITY INTEREST. THIS TRANSACTION SHALL BE GOVERNED BY THE LAW OF THE STATE OF ILLINOIS, AND JURISDICTION AND VENUE FOR THE HEARING FOR ANY MATTER IN DISPUTE SHALL BE WITH THE DUPAGE COUNTY CIRCUIT COURT OF ILLINOIS Customer waives any right to a jury trial and any right to file a Counter-Claim in any action to enforce this agreement At McCann’s sole discretion, any deposition will take place in DuPage County
SIGNATURE: Customer understands that the Sold or Rented Equipment is being Sold or Rented upon the terms and conditions printed on both pages, which together shall be read as one contract Customer represents that he has read and has been afforded the opportunity to read the terms of this agreement and agrees to be bound by them. Customer agrees that representations given by Customer to McCann are an inducement to McCann to Sell or Rent to Customer the equipment described and that all representations made by the Customer are true and correct. A LARGE PRINT VERSION OF THIS AGREEMENT IS AVAILABLE UPON REQUEST.