Terms & Conditions
For good and valuable consideration, you and Zoetic Group, LLC, d/b/a “Zoetic Equipment Group” and “On-Demand Rentals” (also referred to herein as “ZEG,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” refers to the first page or “face” of this Contract; “Contract” refers to P.1 together with these Terms and Conditions, “Rented Item(s)” or “Item(s)” means the item(s) provided (rented or if specifically set forth on P.1, sold) to you, as identified on P.1 (including any “Instructions” and/or safety devices provided per Section [or “§”] 5 below); “Site” means the address set forth on P.1 where the Item(s) is/are to be delivered and/or used; and “Customer,” “Lessee,” “you” and “your” mean the “Renter,” “Customer,” “Lessee” and/or “Guarantor” (as applicable) identified on P.1.
2. You agree to rent from ZEG the Rented Item(s) for the period(s) specified on P.1 (the “Term”), to pay us our stated rental rate(s) (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff, and to remain liable for all injuries and damages (including those to, arising from and/or associated with, such Item(s), until all Rented Item(s) is/are returned to and accepted by ZEG in the return condition required under this Contract (including § 10). Unless otherwise specifically agreed by ZEG, all rental rates are for normal use of the Rented Item(s) in accordance with this Contract. You will not be entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder in order to account for time in transit, Act(s) of God, event(s) of force majeure, the actions or inactions of any other parties, or any other period(s) of nonuse. You agree: (a) to pay us: (i) any deposit(s) and/or other prepayment(s) set forth on P.1 (collectively, the “Prepayment”); (ii) all Rent, taxes and other amounts set forth on P.1 as and when specified therein; and (iii) all other amounts coming due under this Contract upon demand; and (b) that: (i) we may deduct any amount(s) you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; and (iii) no Prepayment will be deemed a limit of your liability to us.
3. Except with respect to Rented Items ZEG rents from one or more third parties (each, a “TPO”) and then rerents to you (“Re-Rented Items”), ZEG owns and will retain title to all Rented Items at all times. You will have exclusive control over the Rented Item(s) during the Term; subject however, to your obligation to fully and timely comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); (b) have any title or ownership interest in or with respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any Rented Item(s) or this Contract, without our prior written consent (in our sole discretion). ZEG may, from time to time, substitute Rented Item(s) and/or sell or assign all or any part of its interests in one or more Rented Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any preexisting obligations or liabilities of ZEG or any TPO.
4. If we agree to deliver and/or retrieve any Item(s), you agree to: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site as reasonably necessary to enable ZEG to fully, timely and properly perform its obligations and pursue its rights and remedies under this Contract. ZEG will not be responsible for delay(s) caused by any acts or omissions of/by you, your agents, employees or contractors, or any other parties, including providers of other equipment or services (“Other Providers”) for which you agree to indemnify, defend and hold harmless ZEG, its agents, employees and contractors. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives and/or delivery personnel regarding the same (including status, condition, quality, utility, defects, and quantities of or with respect to the Item(s) and the Site). All deliveries (other than those performed by ZEG): (i) from ZEG shall be FOB shipping point; and (ii) to ZEG shall be FOB destination (Incoterms 2020).
5. Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(s) unless you thereupon reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by ZEG), carefully examined, counted and tested by you or your agent(s); and (b) you: (i) have carefully reviewed and fully understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all EPA, OSHA, MSHA, ASME, IBC, IFC, IEEE, UL, ASSP, ANSI and other standards applicable to any one or more of the Rented Item(s) (collectively, “Instructions”); (ii) will fully comply therewith (including training, familiarization, cleaning, ventilation, environmental, site assessment, dyke and containment area requirements); (iii) have been made aware of the need to use all applicable personal protective equipment and safety devices, including RESPIRATORY PROTECTION (“PPE”); (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all applicable notice(s) to, and obtain all applicable licenses, authorizations, permits and approvals from, all applicable authorities, including governmental, regulatory and standard setting bodies, utilities and the owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly marked before disturbing the ground surface; (vi) will immediately cease using any Item that is damaged, ruptures, leaks, breaks down, or otherwise proves defective (a “Malfunction”); and (vii) will ensure that all others comply with this Contract at all times. You agree to notify: (A) the police and ZEG in the event of any theft or accident involving any Rented Item(s); and (B) ZEG if any of the requirements of this § 5 shall be breached or found to be incorrect or misleading in any way.
6. In the event of a Malfunction (as defined in § 5), you will immediately notify ZEG and take all appropriate remedial and protective actions, and provided such Malfunction did not result from or in connection with: (a) any wrongful or negligent act or omission of/by you or anyone you permit to use or otherwise deal with any Rented Item; or (b) your breach of any provision of this Contract, ZEG will, at its sole option: (i) repair the Malfunctioning Item; (b) provide you with a comparable item; or (c) solely with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. Neither ZEG nor any TPO shall have any other obligation(s) regarding Malfunctions, all of which you hereby waive.
7. NO WARRANTIES. ZEG IS NOT THE MANUFACTURER OR DESIGNER of any of the Item(s), all of which are provided “AS-IS”. NEITHER ZEG NOR ANY TPO MAKES ANY WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND GOOD AND WORKMANLIKE PERFORMANCE, as well as any warranty(ies) arising from course of dealing, course of performance and/or usage of trade) regarding any Item(s) or Service(s) provided by or at the direction of ZEG or any TPO, nor does ZEG or any TPO make any warranty against INTERFERENCE OR INFRINGEMENT, all of which warranties you hereby waive. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY ZEG OR ANY TPO.
8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE SERVICED, MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED, AND IF APPLICABLE, LICENSED, ADULTS. THE CONTENTS OF THE RENTED ITEM(S) MAY BE COMBUSTIBLE AND/OR HAZARDOUS TO THE ENVIRONMENT. You agree to: (a) ensure that each such Item is used, operated and occupied safely and only: (i) for its intended purpose(s); (ii) within its rated capacity; (iii) unless otherwise specifically agreed by ZEG at the Site; and (iv) otherwise in full compliance with this Contract, the Instructions and all applicable laws, rules, regulations, warranties and insurance policies, at all times; (b) provide all applicable familiarization, training, instructions and warnings to all person(s) who use, operate, clean, maintain, deal with and/or come in close proximity to any one or more Rented Item(s) (collectively, “Other Parties”); (c) exercise, and ensure that all such Other Parties exercise, the highest level of care when dealing with such Item(s); (d) use, and ensure all such Other Parties use, any and all applicable PPE as and when required and/or appropriate; (e) inspect the Rented Item(s) and all PPE for existing and potential damage, defects, ruptures and leaks regularly and frequently; and (f) notify ZEG immediately if any Rented Item moves, shifts, tips, ruptures, leaks or is otherwise damaged or found to be defective. SMOKING NEAR ANY RENTED ITEM IS STRICTLY PROHIBITED. You agree to fully and timely comply, and to take all necessary action(s) to ensure that all Other Parties fully and timely comply, with the requirements of this Contract at all times.
9. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS, THEFT, PROPERTY DAMAGE, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) (INCLUDING ANY AND ALL CONTENTS THEREOF) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, PLACEMENT, INSTALLATION, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, ZEG, EACH TPO, their respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an “Indemnitee”), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from and/or in connection with the Rented Item(s), this Contract, the subject matter hereof, and/or your breach of any one or more of the terms hereof; and except only as provided in § 6, (C) WAIVE all incidental, consequential, general, special, exemplary and punitive damages, against each and every Indemnitee.
10. You will ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the Item(s), protect, properly maintain and care for each Item at all times, and return each such Item to ZEG on time at the end of the Term, complete and otherwise in good order, condition and repair, properly serviced and maintained. If you fail to do so, then in addition to any other amounts specified on P.1, you will promptly pay to ZEG: (a) Rent until all such Item(s) have been returned or replaced as required; and (b) all costs and expenses we may incur in connection with such failure. You shall not, nor shall you permit anyone else to: (i) use or deal with any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS AND ALCOHOL, WHETHER OR NOT LEGAL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented Item(s); (ii) violate any law, rule, regulation, Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s) (unless, and only to the extent that, such Rented Item(s) is/are specifically designed for the same); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Rented Item(s); or (v) take possession of or exercise control over any Rented Item(s), without our prior consent (in our sole and absolute discretion).
11. YOU REPRESENT AND WARRANT TO ZEG THAT: (A) YOU OWN THE SITE OR HAVE OBTAINED THE SITE OWNER’S WRITTEN APPROVAL TO INSTALL AND USE THE RENTED ITEM(S) AS PROVIDED HEREIN; AND (B) THE SITE IS SECURE, LEVEL, PROPERLY VENTILATED, A SAFE DISTANCE FROM STORM SEWERS AND OTHER DRAINAGE INLETS, AND OTHERWISE SUITABLE AND APPROPRIATE IN ALL RESPECTS FOR THE INSTALLATION AND USE OF THE RENTED ITEM(S).
12. You agree to: (a) identify a surface at the Site which is level, stable and otherwise appropriate for installation and use of the Rented Item(s); (b) ensure our personnel have reasonable access to the Site at all times necessary or appropriate in order to facilitate ZEG’s performance of its obligations and pursue its available rights and remedies under this Contract; (c) pay us our stated charges (or if not expressly stated, our regular or published rates) for delivery, installation, maintenance, cleaning, pumping, servicing and retrieval of the Rented Item(s); and (d) be present at the Site as necessary for our performance of the aforementioned services. If you are not present upon any such performance, you agree to accept the statements of our representatives regarding the same (including, performance, status, condition, quality and quantities of the Item(s) and the Site).
13. You agree to maintain all insurance we may reasonably require, including: (a) commercial general and environmental liability insurance with minimum limits of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; (c) workers’ compensation insurance; and (d) umbrella liability insurance with minimum limits of $5,000,000. Such policies shall, whenever possible: (A) name ZEG as an additional insured and loss payee; (B) waive subrogation against us and each TPO; (C) be primary and non-contributory; and (D) include a severability of interests clause and such other provisions (including deductibles) as we may require. You irrevocably appoint ZEG as your agent and attorney infact for purposes of submitting, negotiating and settling claims on all such policies.
14. Your Rental shall be deemed a “net” rental. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract, any other agreement(s) (“Other Contract(s)”) between you and any Indemnitee, and/or any of your obligations arising (t)hereunder or in connection (t)herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent or bankrupt; or (d) die or cease conducting business; if ZEG reasonably deems itself insecure; or if any Rented Item(s) shall be lost or damaged, you will be in DEFAULT under this Contract and such Other Contract(s), whereupon, ZEG may with or without legal process or notice (and without liability to you), to the maximum extent permitted under applicable law: (i) cancel the Term and/or the subject Contract(s) (and/or your rights to use and possess the Rented Item(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict, shut down, disconnect and/or disable such Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage (for which you hereby release each Indemnitee); (iv) perform your obligations (t)hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor(s) our associated direct and indirect damages, losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, overtime, loss of use, interest, attorneys’ fees, retrieval/repossession costs, and collection costs); and/or (vii) pursue any one or more other rights and/or remedies available (t)hereunder, at law and/or in equity, all of which are and will remain at all times cumulative.
15. This Contract shall be governed by and enforceable under the laws of Michigan. Disputes arising in connection with this Contract and/or its subject matter, shall, at ZEG’s option, be submitted to binding ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator and in a location selected by ZEG. Judgment on the arbitrator’s award shall be final and binding and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith shall lie solely and exclusively in the federal, state and local courts located in or nearest to, Oakland County, Michigan (unless waived by ZEG). You consent and submit thereto and waive all claims that such venue lies in an inconvenient forum. YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE: (A) YOUR RIGHT(S), IF ANY, TO PARTICIPATE IN ANY CLASS, COLLECTIVE OR OTHER JOINT ACTION AGAINST ZEG; AND (B) YOUR RIGHT TO TRIAL BY JURY.
16. You agree to fully and timely pay all taxes (including sales, use, environmental and other taxes), tolls, fines, fees, assessments and other charges related to each Item. If legal action is commenced in connection herewith, the prevailing party will be entitled to recover its associated costs and expenses (including attorneys’ fees) from the non-prevailing party). To the maximum extent permitted under applicable law, you grant to ZEG a lien on all real and personal property: (a) placed in or on; and/or (b) improved with, any Rented Item(s). We may, without notice or liability to you, monitor and/or inspect, in person and/or electronically (including via Telematics/GPS systems) any Rented Item(s) at any time. You consent thereto and agree that all information thereby obtained will be ZEG’s property. If any performance required of us is delayed, impaired or made more costly as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God,” event of force majeure (including fire, flood, storm, earthquake, slide, subsidence, war, riot, terrorism, power surge or outage, epidemic, pandemic and governmental and regulatory actions) or other facts or circumstances beyond our reasonable control, we will be excused from such performance. All amounts due hereunder but not timely paid will bear interest at 18% per annum. Our maximum liability in connection with this Contract is limited to the amount(s) actually paid by you and received by us hereunder for the Item(s) identified on P.1. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time is of the essence. There are no third-party beneficiaries hereto other than the applicable Indemnitees. The terms of this Contract are severable. If any provision (t)hereof is deemed invalid or unenforceable by any court or arbitrator of competent jurisdiction, such provision will be deleted, and the remainder (t)hereof will remain valid and enforceable. This Contract represent(s) the entire agreement between you and ZEG, superseding all other agreements and representations, and cannot be amended or extended except in a writing signed by you and ZEG. These Terms and Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us at any time (except only as we may otherwise agree). This Contract: (i) is a true operating lease, and not a disguised financing; (ii) is fair and reasonable; and (iii) shall bind and be enforceable by you, ZEG, the other Indemnitees and their respective insurers, subrogees, successors and permitted sublessees and assigns. You agree to take such actions and execute and deliver such documents and instruments as may be necessary to give full effect to this Agreement upon our request. Digital, electronic, photocopied and facsimiled signatures and initials appearing hereon will be deemed originals.
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