PRL CO SUBCONTRACTOR WITH OPERATING PERSONNEL TERMS AND CONDITIONS
- A. This rental agreement is dated as of the date of the related electronic transaction initiated on PRLCo.com and entered into between T. R. Wurster Construction Co. Inc. dba PRL Co. (“PRL Co”) and the PRLCO.com customer listed in the electronic transaction. (“Customer”). The information included in the electronic transaction and these terms and conditions constitute the Agreement between the parties (the “Agreement”). The Site Address is listed in the PRLCo.com electronic transaction and the Yard is located at 21222 Bryant Street, Canoga Park, CA 91304. Indicate on the electronic transaction page if Customer requests drop off of the Equipment at the Site Address without written receipt.
- PRL Co agrees to provide to Customer experienced, trained and competent personnel to operate the rented Equipment under the general supervision of Customer (“Furnished Operating Personnel”). Customer agrees to provide experienced personnel to supervise operation of the rented Equipment by Furnished Operating Personnel. PRL Co warrants that the Furnished Operating Personnel are fully trained to use the rented Equipment strictly and only in accordance with the Vendor’s instructions, manuals, placards, and limitations. In particular, the Furnished Operating Personnel will not permit the rated load capacity of the equipment (in any configuration) to be exceeded; will not utilize counterweight in excess of the Vendor’s specifications; and will not utilize a lifting device of any description including any type of connection, lug, sling, rope, eye, C-ring, chain, shackle, hook or frame which has not been inspected prior to use and which is not currently certified for the load to be imposed by any and all applicable federal, state or industry standard of competent jurisdiction.
- DEFINITIONS. “Authorized Users” are those individuals that Customer directly or indirectly allows to use the Equipment, who are properly trained to use the Equipment and are not under the influence of any drugs, alcohol, substances or otherwise impaired, and the Furnished Operating Personnel. “Customer” is identified in Section 1. and includes any of its representatives, agents, officers, employees or anyone completing the electronic transaction on Customer’s behalf. “Environmental Fee” is the charge described in Section 17. “Equipment” is the equipment, supplies, and/or services identified earlier, together with all replacements, repairs, additions, modifications, improvements, attachments and accessories and all future Equipment rented by Customer. “Incident” is any fine, citation, theft, accident, casualty, loss, vandalism, injury, death or damage to person or property, claimed by any person or entity that appears to have occurred in connection with the Equipment. Equipment is considered “Lost” when it is either stolen, its location is unknown, or Customer is unable to recover it for a period of 30 days. “MSLP” is the Equipment Vendor’s suggested retail list price on or about the date of the Incident relating to the Equipment. “One Shift,” means not more than 8 hours per day, maximum 40 hours per week. “Ordinary Wear and Tear” means normal deterioration considered reasonable in the equipment rental industry for One Shift use. “Pick-Up Number” is the number Customer obtains from PRL Co evidencing the Customer’s call to pick up Equipment. “Rental Period” commences when the Equipment is delivered to Customer or the Site Address and continues until the Equipment is returned to the Yard or picked up by PRL Co during normal business hours, provided Customer has otherwise complied with this Agreement. “RPP” is the rental protection plan described in Section 11. “Site Address” is the location that Customer represents the Equipment will be located during the Rental Period identified earlier. “Vendor” means the manufacturer or supplier of the Equipment or any other person as well as agents or dealers of the manufacturer or supplier from whom PRL Co arranged Customer’s acquisition of the Equipment pursuant to this Agreement. “Yard” is the PRL Co location identified earlier.
- TERMS. Customer’s completion of the electronic transaction and/or taking possession of the Equipment shall be deemed acceptance of the terms herein. All of the terms herein are incorporated into this and all past and future agreements between PRL Co and Customer upon Customer’s receipt of PRL Co’s Equipment under those agreements. Any reference in Customer's purchase order or other Customer document to other terms that shall control this transaction shall be void. Customer rents the Equipment from PRL Co pursuant to this Agreement. This Agreement is a true lease. The Equipment (a) is and shall remain the personal property of PRL Co and (b) shall not be affixed to any other property.
- PERMITTED USE. Customer understands and agrees that PRL Co has no control over the manner in which the Equipment is operated during the Rental Period by Customer or any third party that Customer implicitly or explicitly permits unless the equipment is being operated by Furnished Operating Personnel, and in such case, the Furnished Operating Personnel only have control of the operation of the Equipment while they are operating it under the general supervision of Customer. Customer warrants that: (a) prior to each use, Customer shall inspect the Equipment to confirm that it is in good condition, without defects, includes readable decals and operating and safety equipment or instructions and is suitable for Customer’s intended use; (b) any apparent agent at the Site Address is authorized to accept delivery of the Equipment (and if Customer requests, Customer authorizes PRL Co to leave the Equipment at the Site Address without requirement of written receipt); (c) Customer shall immediately notify PRL Co if the Equipment is Lost, damaged, unsafe, disabled, malfunctioning, levied upon, threatened with seizure, or if any Incident occurs; (d) Customer has received from PRL Co all information needed or requested regarding the operation of the Equipment; (e) PRL Co is not responsible for providing operator or other training unless Customer specifically requests in writing and PRL Co agrees to provide such training (Customer being responsible to obtain all training that Customer desires prior to the Equipment’s use); (f) only Authorized Users shall use and operate the Equipment; (g) the Equipment’s use shall be in a careful manner, in compliance with all operating and safety instructions provided on, in or with the Equipment and all applicable federal, state and local laws, permits and licenses, including but not limited to, OSHA, as revised; and (h) the Equipment shall be kept in a secure location and kept in good repair and working order in accordance with Vendor’s recommendations (PRL Co shall have no responsibility to maintain, repair or make improvements or additions to the Equipment except as otherwise specified in Section 6, below.).
- PROHIBITED USE. Customer shall not (a) alter or cover up any decals or insignia on the Equipment or remove any operating or safety equipment or instructions; (b) move the Equipment from the Site Address without PRL Co’s written consent; (c) use the Equipment in a careless, negligent, illegal, unauthorized or abusive manner, or in any publication (print, audiovisual or electronic); or (d) allow the use of the Equipment by any unauthorized individual (Customer acknowledges that the Equipment may be dangerous if used improperly or by untrained parties).
- MAINTENANCE. Customer shall perform routine maintenance on the Equipment, including routine inspections and maintenance of fuel and oil levels, grease, cooling system, water, batteries, cutting edges, and cleaning in accordance with the Vendor’s specifications. All other maintenance or repairs may only be performed by PRL Co or its agents, but PRL Co has no responsibility during the Rental Period to inspect or perform any maintenance or repairs unless Customer requests a service call. If PRL Co determines that repairs to the Equipment are needed, other than Ordinary Wear and Tear, Customer shall pay the full repair charges and rental of the Equipment until the repairs are completed. PRL Co has the right at all reasonable times during regular business hours to enter into and upon the property of Customer for the purpose of inspecting the Equipment wherever the Equipment is located. Customer warrants that Customer has the authority to and hereby grants PRL Co and its agents the right to enter the physical location of the Equipment for the purposes set forth herein. PRL Co shall be responsible for repairs needed because of Ordinary Wear and Tear. Customer agrees that repair or replacement of the Equipment is Customer’s exclusive remedy for PRL Co’s breach of this Section. Notwithstanding PRL Co’s service commitment, if Customer breaches this Agreement, PRL Co shall have no obligation to stop the Rental Period, commence repairs or rent other equipment to Customer until Customer or its agent agrees to pay for such charges.
- CUSTOMER LIABILITY. DURING THE RENTAL PERIOD, CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE POSSESSION, CONTROL OR USE OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, RENTAL CHARGES, THEFT, LOSSES, DAMAGES AND DESTRUCTION, INCLUDING CUSTOMER TRANSPORTATION, LOADING AND UNLOADING, WHETHER OR NOT THE CUSTOMER IS AT FAULT. After an Incident, Customer shall (a) immediately notify PRL Co, the police, if necessary, and Customer’s insurance carriers; (b) secure and maintain the Equipment and the surrounding premises in the condition existing at the time of such Incident until PRL Co or its agents investigate; (c) immediately submit copies of all police or other third party reports to PRL Co; and (d) as applicable, pay PRL Co, in addition to other sums due herein, the rental rate for Equipment until the repairs are completed or Equipment replaced plus either (i) the MSLP or (ii) the full charges of repairs of damaged Equipment. Accrued rental charges shall not be applied against these amounts. PRL Co shall have the immediate right, but not obligation, to reclaim any Equipment involved in any Incident.
- NO WARRANTIES. PRL CO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS DURABILITY, VALUE, DESIGN, CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THE EQUIPMENT ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS” AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST PRL CO AND ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE EQUIPMENT AND RELEASES PRL CO AND ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES FROM ALL LIABILITIES AND DAMAGES (INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES) IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION OR USE OR ANY DEFECT OR FAILURE THEREOF OR A BREACH OF PRL CO’S OBLIGATIONS HEREIN.IN NO EVENT SHALL PRL CO AND ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE EQUIPMENTOR THE EXISTENCE, FURNISHING, FUNCTIONING
- RELEASE AND INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, HOLDS PRL CO AND ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES HARMLESS AND AT PRL CO’S REQUEST, DEFEND PRL CO AND ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES (WITH COUNSEL APPROVED BY PRL CO), FROM AND AGAINST ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING ATTORNEY’S AND/OR LEGAL FEES AND EXPENSES) HOWEVER ARISING OR INCURRED, RELATED TO ANY INCIDENT, DAMAGE TO PROPERTY, INJURY OR DEATH OF, ANY PERSON, CONTAMINATION OR ALLEGED CONTAMINATION, OR VIOLATION OF LAW OR REGULATION CAUSED BY OR CONNECTED WITH THE (a) USE, POSSESSION OR CONTROL OF THE EQUIPMENT DURING THE RENTAL PERIOD OR (b) BREACH OF THIS AGREEMENT, WHETHER OR NOT CAUSED IN PART BY THE ACTIVE OR PASSIVE NEGLIGENCE OR OTHER FAULT OF ANY PARTY INDEMNIFIED HEREIN AND ANY OF THE FOREGOING ARISING OR IMPOSED IN ACCORDANCE WITH THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY. CUSTOMER ALSO AGREES TO WAIVE ITS WORKERS’ COMPENSATION IMMUNITY, TO THE EXTENT APPLICABLE. CUSTOMER’S INDEMNITY OBLIGATIONS SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. All of Customer’s indemnification obligations under this paragraph shall be joint and several.
PRL Co agrees to indemnify, save harmless Customer from and against any and all claims, loss, cost or expense including reasonable attorneys fees, liability, suit or cause of action, award or judgment for bodily injury to any person including an employee of either Party to this agreement hereto and specifically including Furnished Operating Personnel, or damage to property, arising out of the act or acts, the failure to act, the negligence or conduct of any nature of the Furnished Operating Personnel during the term of this Agreement, including while operating the rented Equipment. PRL Co is not obligated to indemnify Customer for the sole negligence or willful misconduct of Customer or Customer’s employees, agents or contractors. The indemnification obligations of PRL Co shall be limited by its insurance coverage provided under Section 10 below.
- INSURANCE. During the Rental Period, Customer shall maintain, at its own expense, the following minimum insurance coverage: (a) general liability insurance of not less than $1,000,000 per occurrence, including coverage for Customer’s contractual liabilities herein such as the release and indemnification clause contained in Section 9; (b) property insurance against loss by all risks to the Equipment, in an amount at least equal to the MSLP thereof, unless RPP is elected and paid for at the time of rental; (c) worker’s compensation insurance as required by law; and (d) automobile liability insurance (including comprehensive and collision coverage, and uninsured/underinsured motorist coverage), in the same amounts set forth in subsections (a) and (b), if the Equipment is to be used on any roadway. Such policies shall be primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, name PRL Co and its agents as an additional insured (including an additional insured endorsement) and loss payee, and provide for PRL Co to receive at least 30 days prior written notice of any cancellation or material change. Any insurance that excludes boom damage or overturns is a breach. Customer shall provide PRL Co with certificates of insurance evidencing the coverages required above and evidencing PRL Co named as an additional insured prior to any rental delivery and any other time upon PRL Co’s request. To the extent PRL Co carries any insurance, PRL Co’s insurance will be considered excess insurance. The insurance required herein does not relieve Customer of its responsibilities, indemnification, or other obligations provided herein, or for which Customer may be liable by law or otherwise.
During the entire term of this Agreement, PRL Co agrees to procure, carry, and provide for the benefit of PRL Co and of Customer (as an Additional Insured), policies of Commercial General Liability Insurance insuring PRL Co’s liability including the Indemnification Obligation set out in Paragraph 9 above, with primary policy limits of $1,000,000 (one million dollars) per occurrence. Excess coverage may also be carried by PRL Co at PRL Co’s option. The insurance required hereby shall be primary insurance as respects all insureds. Insurance carried by Customer shall be excess of the insurance required hereby. During the entire term of the Agreement, PRL Co agrees to carry and continue the workers’ compensation insurance provided and carried by PRL Co.
- RENTAL PROTECTION PLAN. Customer’s repair or replacement responsibility in Sections 6 and 7 is modified by the RPP and PRL Co shall limit the amount PRL Co collects from Customer for the Equipment loss, damage or destruction to the following amounts for each piece of Equipment: (a) 10% of the MSLP for Lost Equipment, up to a maximum of $500 per piece of Equipment; (b) 10% of the repair charges for incidental or accidental damage to Equipment, up to a maximum of $500 per piece of Equipment; (c) charges in excess of $50 per tire for tire repairs; and (d) nothing for the rental charges which would otherwise accrue during the period when damaged or destroyed Equipment is being repaired or replaced by PRL Co or Lost Equipment is being replaced; provided however, the foregoing RPP liability reduction only applies if the Conditions are satisfied and an Exclusion does not apply. The RPP is NOT INSURANCE and does NOT protect Customer from liability to PRL Co or others arising out of possession, control or use of the Equipment, including injury or damage to persons or property. THE RPP IS A CONTRACTUAL MODIFICATION OF CUSTOMER’S LIABILITY. All of the following “Conditions” must be satisfied for the RPP and the corresponding liability reduction to apply: (i) Customer accepts the RPP in advance of the rental; (ii) Customer pays 15% of the gross rental charges as the fee for the RPP (plus applicable taxes); (iii) Customer fully complies with the terms of this Agreement; (iv) Customer’s account is current at the time of the loss, theft, damage or destruction of the Equipment; and (v) none of the Exclusions apply. Customer assumes the Exclusion risks, meaning that if any Exclusion occurs, the RPP does NOT reduce the liability of Customer to PRL Co for the loss, theft, damage or destruction resulting from such Exclusion. “Exclusions” shall mean loss, theft, damage or destruction of the Equipment: (A) due to intentional misuse; (B) caused by Lost Equipment not reported by Customer to the police within 48 hours of discovery, and substantiated by a written police report (promptly delivered to PRL Co); (C) due to floods, wind, storms, earthquakes or other Acts of God; and (D) accessories or Equipment for which Customer is not charged the RPP fee. THE EXCLUSIONS REMAIN THE LIABILITY OF CUSTOMER AND ARE NOT MODIFIED BY THE RPP. RPP IS REFLECTED ON THE AGREEMENT AS PART OF CUSTOMERS ESTIMATED CHARGES UNLESS CUSTOMER HAS ELECTED TO DECLINE RPP IN WRITING OR MADE OTHER CONTRACTUAL ARRANGEMENTS. Notwithstanding anything to the contrary in this Agreement, if Lost Equipment is later recovered, PRL Co retains ownership of the Equipment regardless of any payments made by Customer or Customer’s insurance company with respect to such Equipment, all of which payments are non-refundable. Customer agrees to promptly return any Equipment that is recovered. PRL Co shall be subrogated to Customer’s rights to recover against any person or entity relating to any loss, theft, damage or destruction to the Equipment. Customer shall cooperate with, assign PRL Co all claims and proceeds arising from such loss, theft, damage or destruction, execute and deliver to PRL Co whatever documents are required and take all other necessary steps to secure in PRL Co such rights, at Customer’s expense.
- RENTAL RATES. Customer agrees to pay the “Reasonable Rental Value” of the Leased Equipment including any Furnished Operating Personnel for the period of time the rental Equipment is employed. Reasonable Rental Value is to be the rental rate set out in PRL Co’s published rated in effect at the time the rented Equipment is delivered to Customer. The rental rate may include or refer to a statement of transportation or other accessorial charges. In addition to the Reasonable Rental Value, Customer agrees to pay the costs of collection, including reasonable attorneys’ fees, expert witness fees, and costs if collection is sought by PRL Co. The total charges specified in this Agreement are: (a) estimated based upon Customer’s representation of the estimated Rental Period identified herein (rental rates beyond the estimated Rental Period may change) and other information conveyed by Customer to PRL Co; and (b) for the Equipment’s use for One Shift, unless otherwise noted. Weekly and 4 week rental rates shall not be prorated. Rental charges accrue during Saturdays, Sundays and holidays. The rental rates do not include and Customer is responsible for, (i) all consumables, fees, licenses, present and future taxes and any other governmental charges based on Customer’s possession and/or use of the Equipment, including additional fees for more than One Shift use; (ii) delivery and pickup charges to and from the Yard, including but not limited to any freight, transportation, delivery, pickup and surcharge fees listed in this Agreement; (iii) maintenance, repairs and replacements to the Equipment as provided herein; (iv) a cleaning fee if required; (v) miscellaneous charges, such as fees for lost keys and RPP; (vi) fuel used during the Rental Period and for refueling Equipment as described below; (vii) fines for use of dyed diesel fuel in on-road Equipment; and (viii) a Environmental Fee (see https://prlco.com/pages/fees) and (ix) Transportation Surcharge (see https://prlco.com/pages/7_transportation). The convenience charge for off road diesel fuel does not include governmental motor fuel taxes or charges. PRL Co collects these fees as revenue and uses them at its discretion.
- PAYMENT. Customer shall pay amounts due, without any offsets, in full at the time of rental, unless PRL Co approves Customer’s executed credit application (credit customers must pay, upon receipt of PRL Co’s invoice). Customer must notify PRL Co in writing of any disputed amounts, including credit card charges, within 15 days after the receipt of the invoice/Agreement or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. At PRL Co’s discretion, any credit account with a delinquent balance may be placed on a cash basis, deposits may be required and the Equipment may be picked up without notice. Due to the difficulty in fixing actual damages caused by late payment, Customer agrees that a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law shall be assessed on all delinquent accounts, until paid in full. Customer shall pay a fee of $75 for each check returned for lack of sufficient funds to compensate PRL Co for its overhead for processing missed payment. Deposits will only be returned after all amounts are paid in full. Customer agrees that if a credit card is presented to pay for charges or to guarantee payment, Customer authorizes PRL Co to charge the credit card all amounts shown on this Agreement and charges subsequently incurred by Customer, including but not limited to, loss of or damage to the Equipment and extension of the Rental Period.
- RETURN OF EQUIPMENT. PRL Co may terminate this Agreement at any time, for any reason. At the end of the Rental Period, the Equipment shall be returned to PRL Co in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. Customer will continue to be responsible for rental and other charges after the Rental Period if the Equipment is not returned in the condition required herein. If PRL Co delivered the Equipment to Customer, Customer shall notify PRL Co that the Equipment is ready to be picked up at the Site Address and obtain a Pick-Up Number, which Pick-Up Number Customer should keep as proof of the call; provided Customer remains liable for any loss, theft, damage to or destruction of the Equipment until PRL Co confirms that the Equipment is returned in the condition required herein. Customer will not be charged the rental charges after the date the Pick-Up Number is given, provided Customer has otherwise complied with this Agreement. No pickups occur on Sundays or statutory holidays and Saturday pickups are dependent on specific Yard hours. If Customer picked up Equipment, Customer shall return Equipment to the same Yard during that Yard’s normal business hours. If the Equipment is not returned by the estimated end of the Rental Period specified earlier, Customer agrees to pay the applicable rental rate for the Equipment until the end of the Rental Period.
- PURCHASES. If this Agreement identifies any Equipment, materials or other items that is to be purchased by Customer, PRL Co sells and delivers such items to Customer on an “AS IS, WHERE IS” basis, with all faults and without any warranties (other than Vendor warranties, if any) in consideration for Customer’s payment to PRL Co of the full purchase price of the item, PRL Co retains title to the item until Customer has paid in full.
- DEFAULT. Customer shall be in default if PRL Co deems itself insecure or if Customer: (a) fails to pay sums when due; (b) breaches any Section of this Agreement; (c) becomes a debtor in a bankruptcy proceeding, goes into receivership, takes protection from its creditors under any insolvency legislation, ceases to carry on business, or has its assets seized by any creditor; (d) fails to insure the Equipment as required, or otherwise places the Equipment at risk; (e) fails to return Equipment immediately upon PRL Co’s demand; or (f) is in default under any other agreement with PRL Co. If a Customer default occurs, PRL Co shall have, in addition to all rights and remedies at law or in equity, the right to enter the premises where the Equipment is located and retake possession of the Equipment without judicial process or prior notice or require Customer at Customer’s expense to promptly return any or all of such Equipment to the possession of PRL Co at the Yard or such other location that PRL Co shall specify. Customer shall pay all of PRL Co’s costs, including reasonable costs of collection, court costs, attorneys and legal fees, incurred in exercising any of its rights or remedies herein. The use of false identification to obtain Equipment or the failure to return Equipment by the end of the Rental Period may be considered theft, subject to criminal prosecution and civil liability where permitted, pursuant to applicable laws. PRL Co shall not be liable due to seizure of Equipment by order of governmental authority. CUSTOMER WAIVES ANY RIGHT OF ACTION AGAINST PRL CO OR ITS REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES FOR SUCH REPOSSESSION.
- ENVIRONMENTAL FEE. To promote a clean and sustainable environment, PRL Co takes various measures to comply with applicable environmental regulations, as well as with PRL Co’s own policies. PRL Co also incurs a wide range of environmental related expenses (both direct and indirect). These expenses may include services such as waste disposal, construction and maintenance of cleaning facilities, acquisition of more fuel-efficient equipment, as well as, labor costs, administration costs, etc. To help defray these and other costs, PRL Co assesses an Environmental Fee, plus applicable taxes thereon in connection with certain rentals. The Environmental Fee is not a tax or governmentally mandated charge, and is not designated for any particular use or placed in an escrow account, but is a charge that PRL Co collects as revenue and uses at its discretion.
- FUEL. For Equipment that uses fuel, Customer has three options: (a) Prepay Fuel Option - Customer may purchase a full tank of fuel for the Equipment at the start of the rental, in which case a “convenience charge” will appear on this Agreement (calculated by multiplying the estimated fuel capacity of Equipment by the Prepay per gallon rate). As an added benefit, Customer may return the Equipment full of fuel and the convenience charge will be refunded (however, if not returned full, Customer will not obtain any credit for fuel left in the Equipment upon return); (b) Pay on Return Option - if Customer returns Equipment with less fuel than when received, Customer shall pay a refueling charge (calculated by multiplying gallons required to refill tank with fuel to level when received, by the Pay on Return per gallon rate); and (c) Return Full Option – if Customer returns the Equipment with at least as much fuel as when it was received (most PRL Co Equipment comes with a full tank of fuel, but not all), no fuel charge will be assessed. The cost of Customer refueling Equipment itself will generally be lower than the Prepay Fuel Option or the Pay on Return Option; however these options each allow for the convenience of not refueling.
- LIMITATION OF PRL CO’S LIABILITY. IN CONSIDERATION OF THE RENTAL OF EQUIPMENT, CUSTOMER AGREES THAT PRL CO’S LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY LIABILITY ARISING FROM PRL CO’S, PRL CO’S REPRESENTATIVES, AGENTS, OFFICERS, AND EMPLOYEES, OR ANY THIRD PARTY’S COMPARATIVE, CONCURRENT, CONTRIBUTORY, PASSIVE OR ACTIVE NEGLIGENCE OR THAT ARISES AS A RESULT OF ANY STRICT OR ABSOLUTE LIABILITY, SHALL NOT EXCEED THE TOTAL RENTAL CHARGES PAID BY CUSTOMER UNDER THIS AGREEMENT.
- JURY TRIAL WAIVER. IN ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO THIS AGREEMENT, CUSTOMER AND PRL CO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
- ARBITRATION AGREEMENT & CLASS ACTION WAIVER. AT THE ELECTION OF CUSTOMER OR PRL CO, ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF IN A PURPORTED CLASS OR REPRESENTATIVE CAPACITY, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES OR BY JAMS PURSUANT TO ITS STREAMLINED ARBITRATION RULES AND PROCEDURES AND JUDGEMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR TRIED ON A CLASS ACTION BASIS.
- COMPLIANCE WITH EXPORT AND IMPORT LAWS. Removal of the Equipment from the United States (“U.S.”) is prohibited under this Agreement. If Customer desires or causes the transport and/or operation of the Equipment outside of the U.S., Customer must (a) obtain PRL Co’s consent prior to taking such action, and (b) execute an amendment to this Agreement, which amendment is incorporated herein. If Customer exports or re-exports without complying with the above sentence, Customer agrees that (i) the Equipment is subject to and must comply with all applicable export laws, including but not limited to the Export Administration Regulations; and (ii) Customer is responsible for: (A) determining whether and obtaining if necessary, export or re-export licenses or other authorizations as required prior to exporting or re-exporting the Equipment, (B) obtaining any required documentation necessary for return of the Equipment, and (C) ensuring no unauthorized transfers or diversions of the Equipment occur. Refer to www.bis.doc.gov for information.
- VENDOR’S WARRANTIES. PRL Co hereby irrevocably appoints Customer its agent and attorney-in-fact during the term of this Agreement, so long as Customer shall not be in default under this Agreement, to assert from time to time whatever claims and rights (including without limitation warranties) relating to the Equipment that PRL Co may have against Vendor. Customer’s sole remedy for the breach of such warranty, indemnification or representation shall be against Vendor of the Equipment, and not against PRL Co. Any such matter shall not have any effect whatsoever on the rights of PRL Co with respect to this Agreement, including the right to receive full and timely payments under this Agreement. Customer hereby acknowledges that PRL Co makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties by PRL Co.
- ASSIGNMENT AND SUBLEASING BY CUSTOMER, None of Customer’s right, title, and interest in, to and under this Agreement or any portion of the Equipment may be assigned or encumbered by Customer for any reason.
- GOVERNING LAW. The parties expressly and irrevocably agree: (a) this Agreement, including any related tort claims, shall be interpreted and governed by the laws of California, without regard to any conflicts of law principles and (b) if any Section of this Agreement is prohibited by any law, such Section shall be ineffective to the extent of such prohibition, without invalidating the remaining Sections.
- MISCELLANEOUS. This Agreement constitutes the entire agreement of the parties regarding the Equipment and may not be modified except by written amendment signed by the parties. Customer’s obligations hereunder shall survive the termination of this Agreement. This Agreement and all of Customer’s rights in and to the Equipment are subordinate to all rights, title and interest of all persons (including PRL Co’s lenders) who have rights in the Equipment. Headings are for convenience only. To the extent that any terms in this Agreement conflict, the parties agree that the more specific terms control. A copy of this Agreement shall be valid as the original. Any failure by PRL Co to insist upon strict performance of any Section of this Agreement shall not be construed as a waiver of the right to demand strict performance in the future. Customer and the person signing this Agreement represent that: (a) they both have full authority to execute, deliver and perform this Agreement and (b) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable in accordance with its terms.
- NOTICES. All notices, certificates or other communication under this Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight currier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notice to such party).
- BINDING EFFECT. This Agreement shall inure to the benefit of and shall be binding upon PRL Co and Customer and their respective successors and assigns.
- SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Agreed and accepted by the duly authorized representatives on the date of the online PRLCo.com electronic transaction by PRL Co and the listed customer.