Please read carefully. This agreement includes an indemnification clause, a class action and jury waiver, and limitations of OMB Group LLC’s liability. By accepting delivery of the Equipment or making payment(s) to OMB Group LLC for the same, customer agrees to be bound by the Rental and Service Terms, even if the Rental and Service Agreement has not been fully executed.
“Agreement” means the Reservation Details, together with any associated Rental and Service Agreement, including these Rental and Service Terms which are incorporated by reference therein.
“Customer” means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer.
“Equipment” means any one or more of the items identified as rental items in the Reservation Details and any accessories, attachments or other similar items delivered to Customer.
“Qualified Operator” means any individual who is permitted by Customer to operate the Equipment. This includes individuals identified in the Rental and Service Agreement as additional QUALIFIED OPERATOR(S). All Qualified Operators must have a valid operator’s license to operate the Equipment if applicable. By operating the Equipment,, a Qualified Operator will be deemed jointly and severally responsible for Customer’s obligations related to the Equipment and for any obligations that the Rental and Service Agreement imposes on a Qualified Operator of the Equipment.
“Rental and Service Agreement” means the agreement made between Customer and OMB Group LLC for OMB Group LLC to rent Equipment and/or provided Services, whether that Agreement is made in person at the Store Location, online, or at the time of Equipment delivery, and which incorporates by reference these Rental and Service Terms and which identifies the Equipment to be rented by Customer. The Agreement incorporates these Rental and Service Terms by reference.
“Rental Period” means the period of time between the “Rental Out” and “Scheduled In,” set forth in the Rental and Service Agreement, except that the Rental Period may terminate earlier as provided in Sections 17 and 27 hereof or if Customer returns the Equipment earlier. “Credit Card” means the credit card provided by Customer as part of this Agreement or otherwise kept on file with OMB Group LLC.
“Reservation Details” means the Equipment, Rental Period, delivery information, payment information and other information set forth on the Confirmation/Order Summary Screen or the Rental and Service Agreement, as the case may be.
“Service” or “Services” means the services provided by OMB Group LLC in connection with the rental of Equipment.
“Store Location” means the OMB Group LLC address set forth in the Rental and Service Agreement.
“OMB” means OMB Group LLC..
Any individual signing the Agreement represents and warrants that he or she is of legal age and has the authority and power to sign this Agreement on behalf of Customer.
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD OMB, AND ANY OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO THE (A) INSTALLATION, OPERATION, USE, POSSESSION OR RENTAL OF THE EQUIPMENT, OR (B) ERRORS, OMISSIONS OR INACCURACIES IN THE DOCUMENTS OR OTHER INFORMATION PROVIDED BY CUSTOMER, OR OBTAINED FROM OTHERS, UPON WHICH OMB RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST OMB BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY OMB FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF OMB. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS AGREEMENT, CUSTOMER EXPRESSLY AND SPECIFICALLY AGREES THAT THE FOREGOING OBLIGATION TO INDEMNIFY SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL LIMITATION OF LIABILITY OR IMMUNITY CUSTOMER ENJOYS FROM SUITS BY ITS OWN EMPLOYEES. THE DUTY TO INDEMNIFY WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE AGREEMENT.
Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair, and suitable for Customer’s needs. Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues, and other devices and materials used to connect the Equipment to Customer’s towing vehicle, if any. Customer acknowledges OMB is not responsible for any damage to Customer’s towing vehicle caused by detachable hitches or mirrors.
In no event shall OMB be liable or responsible to Customer or any other party for: (i) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its operation or its use; (ii) OMB’s failure to deliver the Equipment as required hereunder or OMB’s failure to repair or replace non-working Equipment; or (iii) any incidental, consequential, punitive or special damages, even if so advised of the possibility of such damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to OMB and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.
Customer shall provide OMB with the information and the documentation OMB requests to assess, plan, and perform the Services and/or provide the Equipment. All Equipment is provided and Services are performed based on information provided by Customer or others and OMB is relying on the accuracy and completeness of such information in providing the Equipment and performing such Services. Customer recognizes that it is impossible for OMB to assure the accuracy, completeness and sufficiency of information provided by others, either because it is impossible to verify, or because of errors or omissions that may have occurred in assembling such information. Customer is responsible for providing a secure and safe work environment for all parties, including OMB and its employees, and for ensuring that the Services are carried out in compliance with applicable laws.
7A. Use of equipment
Customer is familiar with the proper operation and use of each item of Equipment. Customer has selected the Equipment based on its requirements and will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, if required under any applicable law; or who is not qualified to operate it. In addition, Customer shall only use ultra-low-sulfur diesel fuel (“USLD”) in equipment with tier 5 engines. Customer agrees to: (i) check filters, oil, fluid levels and tire air pressure; (ii) clean and visually inspect the Equipment daily; and (iii) immediately cease using the Equipment and immediately notify OMB if Equipment needs repair or maintenance. Customer acknowledges that OMB has no responsibility to inspect the Equipment while it is in Customer’s possession. OMB shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.
7B. Regulated materials
Customer will not use the Equipment for the storage and handling of Regulated Materials (as defined herein).
“Regulated Materials” includes any material, substance or waste that falls into the following five categories: (i) “Hazardous Materials,” as defined or listed or regulated by any local, state, or federal government authority; (ii) “DOT Hazardous Materials,” as defined or identified as “hazardous material” by the Department of Transportation as set forth in 49 C.F.R. Parts 171 to 180; (iii) “Polychlorinated Biphenyls” or “PCBs,”meaning any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances which contains such substance, and which are regulated under the Toxic Substances Control Act and its implementing regulations found at 40 C.F.R. part 761; (iv) “Radioactive Materials,” identified by any local, state, or federal government authority as being radioactive; and (v) “Infectious Materials,”meaning any infectious substance, material, or waste that is defined, listed, or regulated by any local, state, or federal government authority.
Customer shall, at Customer’s sole expense, comply with all applicable municipal, state, and federal laws, ordinances and regulations (including but not limited to those relating to worker safety or the environment), building and zoning codes, professional licenses, and licenses and permits which may apply to the use of the Equipment (“Licenses and Permits”). Licenses and Permits include, without limitation, the discharge of treated water, and disposal of waste or spent Specialty Media or other materials, and security, traffic control and road crossings associated with the use of the Equipment. Customer shall ensure that the Equipment at all times remains movable personal property. Customer shall not permit or allow the Equipment to be incorporated, attached or joined to any real or immovable property such that it causes the Equipment to be deemed a fixture.
OMB WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD WORKING ORDER UPON DELIVERY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OMB MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT OR SPECIALTY MEDIA AND MAKES NO WARRANTIES AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS OR CONTAMINANTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE AGREEMENT, OMB DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION. IN THE EVENT OF A BREACH OF THE ABOVE EQUIPMENT WARRANTY, OMB SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR, REPLACE THE EQUIPMENT, OR TERMINATE THE RENTAL CHARGES ACCRUING AFTER THE TIME OF FAILURE.
Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify OMB. If such condition is the result of normal operation, OMB will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. OMB has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect. Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Customer must return the Equipment to the Store Location within twenty-four (24) hours from the time of defect in order to terminate rental charges.
At the expiration of the Rental Period, Customer will return the Equipment to the Store Location during OMB’s regular business hours or if OMB has agreed to pick up the Equipment, OMB shall endeavor to pick up the Equipment within a commercially reasonable period of time after Customer notifies OMB that the Equipment is called “off rent.” Customer is obligated to restore the Equipment to the same condition as when delivered, reasonable wear and tear (as defined below) excepted. Customer shall be responsible for all damages to or loss of the Equipment from the time the Equipment leaves the Store Location until the Equipment is either returned to the Store Location, including any damage during transit to or from Customer, or picked up by OMB. In the case of the loss or destruction of any Equipment, or inability or failure to return same to OMB for any reason whatsoever, Customer will pay OMB the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay OMB the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. OMB shall be under no obligation to commence repair work until Customer has paid to OMB the estimated cost therefor. Customer agrees that OMB reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to damaged or lost Equipment.
Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one -shift basis (as defined in Section 14 below). The following shall not be considered reasonable wear and tear: (i) damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels; cavitation; or freezing; (ii) except where OMB expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer’s operation and maintenance manual; (iii) damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment; (iv) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (v) wear resulting from use in excess of shifts for which rented; and (vi) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.
Customer agrees that if the Equipment is not returned by the end of the Rental Period, OMB, in its sole discretion, may require Customer to do any of the following: (A) continue to pay the rental rate(s) applicable to the Equipment as specified in the Agreement; (B) for periods less than 24 hours, pay the full daily rental rate applicable to the Equipment; (C) pay any increased rental rate(s) in effect at the time of, or after, the expiration of the Rental Period. Customer agrees that OMB reserves the right to charge the Credit Card, and/or Customer’s account for any amount owed by Customer pursuant to this section due to late return of Equipment.
Rental charges commence when the Equipment leaves the Store Location and end when the Equipment is either returned to the Store Location during OMB’s regular business hours or picked up by OMB after Customer notifies OMB that the Equipment is “off rent”. Pick-up and delivery by OMB is subject to a “Delivery and Pick-up Service Charge,” the amount(s) of which are disclosed on the Rental and Service Agreement. Rental charges do not include the cost of the Refueling Service Charge, any applicable Taxes (as defined below), the Delivery and Pickup Service Charge, transportation surcharges, or other miscellaneous charges, the amount(s) of which are disclosed on the Rental and Service Agreement. Additionally, OMB shall invoice Customer for any additional excess cleaning or repair costs, including: (i) removal of any alterations made by Customer to the Equipment; (ii) restoration of the Equipment to its original configuration. As set forth herein, “Taxes” shall mean sales tax, goods and services tax, property taxes (including, without limitation, the Estimated Personal Property Tax Reimbursement Charge) or other taxes, levies and assessments required to be collected by OMB from Customer at any time upon, or in respect of, the Equipment and/or this Agreement. Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are for normal “one-shift” usage based on an eight (8) hours per day, 40 hours per week and 160 hours per four-week period. On power equipment, operations in excess of one shift will be as follows: one and one-half times the rental charge for double shift and two times the rental charge for triple shift. Customer will truthfully and accurately certify to OMB the number of shifts the Equipment was operated. Customer’s right to possess the Equipment terminates on the expiration of the Rental Period and retention of possession after this time is a material breach of the Agreement. TIME IS OF THE ESSENCE OF THE AGREEMENT.
Customer acknowledges that a “Refueling Service Charge” will be applied to all Equipment not returned with a full tank of fuel. The exact cost of the Refueling Service Charge may vary depending on the rate being charged by the Store Location on the date Customer returns the Equipment. Customer acknowledges that the Refueling Service Charge is not a retail sale of fuel. Customer may avoid the Refueling Service Charge if Customer returns the Equipment with a full tank of fuel.
The Agreement is not a contract of sale, and title to the Equipment shall at all times remain with OMB. Unless covered by a specific supplemental agreement signed by OMB, Customer has no option or right to purchase the Equipment. Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances.
Repair or replacement of tires and tubes on Equipment is the responsibility of Customer and is not included in the rental rate.
Customer shall be deemed in default should Customer fail to pay any amount when due hereunder; fail to perform, observe or keep any provision of the Agreement; become “Insolvent” (as defined herein), or should OMB anticipate that Customer may become Insolvent; or otherwise be in default. If Customer is in default, OMB may do any one or more of the following: (i) terminate the Rental Period; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (iii) cause OMB’s employees or agents, with notice but without legal process, to enter upon Customer’s property and take all action necessary to retake and repossess the Equipment, and Customer hereby consents to such entry, re-taking and repossession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by OMB in retaking and repossessing the Equipment; or (iv) pursue any other remedies available by law. Customer shall be considered “Insolvent” if Customer shall generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; make an assignment for the benefit of creditors, or petition or apply to any court or tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made; or take any action indicating its consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its properties.
Customer agrees to maintain and carry, at Customer’s sole cost, the following insurance: (i) commercial auto liability insurance with at least a per occurrence limit of $1 million; (ii) commercial general liability insurance (“CGL”) (providing coverage equal to or greater than the standard ISO CG 00 01 12 04 form) with limits of insurance not less than $1 million per occurrence and $2 million in the aggregate; and (iii) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment. Customer shall obtain insurance policies that provide, or are endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by OMB. Customer shall name OMB as an additional insured for claims arising out of the maintenance, operation, or use by the Customer of equipment rented to Customer by OMB (providing coverage equal or greater than the standard ISO CG 20 28 07 04 or its equivalent), and, if applicable, additional loss payee for property insurance. Customer further agrees that the amount of insurance available to OMB shall be for the full amount of the loss up to policy limits of liability and shall not be limited to the minimum requirements of this Agreement. In the event any policy provided in compliance with this Agreement states that the insurance afforded to an additional insured will not be broader than that required by contract, or words of similar meaning, Customer agrees that nothing in this Agreement is intended to restrict or limit the breadth of such insurance. Any deductibles or self-insured retentions shall be the sole responsibility of the Customer. All insurance required by this Agreement shall include a waiver of rights of recovery against OMB or its insurers by the Customer and its insurers, as well as a waiver of subrogation against OMB or its insurers. The policies required hereunder shall provide that OMB must receive not less than 90 days’ notice prior to any cancellation. Customer shall provide OMB with documented proof of all required insurance coverage. FOR RENTAL OF EQUIPMENT NOT LICENSED FOR ROAD USE, CUSTOMER MUST ELECT TO NAME OMB AS LOSS PAYEE EVIDENCING PROPERTY INSURANCE COVERAGE, OR (ii) ELECT TO PURCHASE THE EQUIPMENT PROTECTION COVERAGE.
Customer shall not sublease, subrent, assign or loan the Equipment without first obtaining the written consent of OMB, and any such action by Customer, without OMB’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth in the Agreement unless OMB approves otherwise in writing. OMB may at any time, without notice to Customer, transfer or assign the Agreement or any Equipment or any moneys or other benefits due or to become due hereunder.
TOOL SERVICES. “Tool Services” may include tool tracking services, tool tracking software, utilization data (via printed/electronic reports), an on-site technician to manage tools and other equipment, and a tool room, if needed. Unless otherwise agreed to by the parties, Customer shall (i) provide a safe location for the trailer where it can be housed for the duration of the project; (ii) provide power to supply electricity to the trailer (generator or plant power); (iii) install scaffolding around the trailer if the site does not make use of the trailer’s stairs; (iv) supply OMB with information regarding access requirements, including but not limited to, site-specific classes, drug testing requirements, fatigue day rules, etc., prior to delivery; (v) supply OMB with a list of personnel authorized to check-in and check-out tools and/or allowed to request addition/removal of inventory.
These terms and conditions and the front the Agreement, and any Addendum attached thereto, represent the entire agreement between Customer and OMB with respect to the Equipment and the rental and servicing of the Equipment. There are no oral or other representations or agreements not included herein. None of OMB’s rights or Customer’s rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by both OMB and Customer. Any use of Customer’s purchase order number on this Agreement is for Customer’s convenience only.
These terms and conditions and the Agreement shall control over any terms and conditions contained in Customer’s purchase order or similar documents and such other terms are hereby rejected by OMB. In the event that OMB signs Customer’s purchase order or similar document, such signature shall be solely for the purpose of acknowledging the order; it being the express intent of the parties that the Agreement and these terms and conditions shall govern all rental and service transactions.
Customer agrees that any claims or proceedings brought by Customer relating to this Agreement will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. Customer will not sue OMB as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against OMB. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
The federal and state courts in the county in which the Store Location is located shall have exclusive jurisdiction over all matters relating to this Agreement. TRIAL BY JURY IS WAIVED. In order to effect service of process on OMB, please contact the Secretary of State Corporations Division or the equivalent office in your state to obtain the name of the registered agent and the registered office address that is on file with the Secretary of State for OMB. OMB shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.
The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the Rental Period may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.
Customer and OMB each consent to the collection and monitoring of electronic information, including Global Positioning System (“GPS”) data, generated by or in connection with Customer’s use of or the location of the Equipment. Customer agrees that OMB owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes.
Neither party shall be liable to the other party for failure to comply with the terms of the Rental and Service Agreement or performance of its obligations hereunder to the extent such failure has been caused by Force Majeure, provided that the non-performing party shall give notice to the other party as soon as commercially possible and shall exercise reasonable efforts to resume performance. For the purposes of the Rental and Service Agreement, “Force Majeure” shall mean fire, war, insurrection, act of terrorism, riots, flood, hurricane, typhoon, earthquake, tornado, mudslide, tsunami, and any other natural disaster, pandemic or other causes beyond the reasonable control and not due to the fault of the non-performing party.
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