4. ADDITIONAL TERMS AND CONDITIONS. THIS LEASE AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. Lessor: SHERLOCK RENTS LESSEE: As Named Above. THIS LEASE AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS. INCLUDING LIMITED WARRANTY, DISCLAIMERS, AND RELEASE AND EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES WHICH LESSOR AND LESSEE HAVE NEGOTIATED AND WHICH LESSEE HAS READ AND UNDERSTANDS AND TO WHICH IT AGREES. BOTH THE FRONT AND REVERSE SIDE COMPOSE THE ENTIRE AGREEMENT BETWEEN LESSOR AND LESSEE. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WHICH MAY APPEAR IN ANY COMMUNICATION FROM THE LESSSEE, INCLUDING BUT NOT LIMITED TO ANY SEPARATE DOCUMENT SUBMITTED BY LESSEE IN CONNECTION WITH THE LEASE OF THE EQUIPMENT, ARE HEREBY REJECTED BY THE LESSOR.
5. ACCEPTANCE. LESSOR’S ACCEPTANCE OF THIS LEASE AGREEMENT IS EXPRESSLY CONDITIONED ON LESSEE’S ASSENT TO ALL OF THE FOREGOING TERMS AND CONDITIONS AND SHALL IN NO EVENT BE EFFECTIVE UNTIL THIS AGREEMENT IS ACKNOWLEDGED IN WRITING BY THE SIGNATURE OF LESSOR’S AUTHORIZED REPRESENTATIVE.
6. Repairs and Maintenance. Lessor shall not be obligated to make any repairs or replacements and Lessee shall not incur for Lessor’s account or liability any expense therefore without Lessor’s prior written consent Lessee shall inspect the Equipment immediately upon delivery. Unless upon delivery Lessee notifies Lessor of the details of any defects Lessee shall be conclusively presumed to have accepted the Equipment in its then condition. Thereafter Lessee shall bear the expense of all necessary repairs, maintenance and replacement using only genuine parts of the manufacturer of the leased Equipment. Lessor shall not be called upon to repair Equipment during regular hours for repair work and Lessee shall pay Lessor therefore at Lessor’s regular repair rates. All authorized repair work outside of regular business hours shall be paid for by Lessee at Lessor’s overtime rate. Lessee agrees to furnish preventative maintenance for the machine at fifty (50) hour intervals or each thirty (30) days, whichever comes first. Lessee shall at its own expense take care of normal needs of Equipment including supplying fuel, oil, water, daily checking of general condition including oil level, cooling system, water and batteries, recharging batteries, etc.
7. Operations. Lessee shall cause Equipment to be operated by competent employees only and shall pay all expenses of operation. Lessee agrees to properly care for the Equipment to use it within its rated capacity and to restrict its use to Lessee’s employees who are competent to operate the Equipment.
8. Time Record. Rental period starts immediately upon delivery of Equipment to Lessee at Lessor’s warehouse. Rental period ends upon return to Lessor’s warehouse. This lease shall be irrevocable for the minimum term hereof. No allowance will be made for Sundays, holidays, or time in transit, or for any period of time Equipment may not be in actual use while in Lessee’s possession. All transportation or truck charges are to be paid by Lessee. The Lessor may recall any or all of the Equipment immediately after minimum term has expired.
9. Alterations. Lessee shall not without prior written consent of Lessor make any alterations, additions or improvements to the leased Equipment.
10. Indemnity. LESSEE SHALL INDMNIFY, DEFEND AND SAVE LESSOR AND ITS AGENTS AND EMPLOYEES HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, AND CIVIL PENALTIES, INCLUDING COSTS AND EXPENSES (INCLUDING ATTORNEY’S FEES) INCIDENT THERTO OR INCIDENT TO SUCCESSFULLY ESTABLISHING THE RIGHT TO INDEMNIFICATION. FOR INJURY TO OR DEATH OR ANY PERSON OR PERSONS INCLUDING EMPLOYEES OF LESSEE, OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY, INCLUDING THE EQUIPMENT, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE POSSESSION, USE, MAINTENANCE, OR OPERATION OF THIS EQUIPOMENT. WHETHER OR NOT ARISING IN TORT OR OCCASIONED IN WHOLE OR IN PART BY THE NEGLIGENCE OR LESSOR. WHETHER ACTIVE, PASSIVE, OR IMPUTED. TO THE EXTENT OF THIS INDEMNITY, LESSEE HERBY WAIVES ANY IMMUNITY PROVIDED BY THE TITLE 51 RC WASHINTON OR ANY OTHER INDUSTRIAL INSURANCE LAW OR WORKERS COMPENSATION STATUTE IF THIS INDEMNITY IS LIMITED IN SCOPE BY OPERATION OF LAW, THEN IT SHALL EXTEND TO THE FULL EXTENT ALLOWED BY SUCH LAW.
11. Insurance. The Equipment shall at all times after delivery to Lessee, Lessee’s agent or a transportation company, whichever first occurs, be the sole responsibility of the Lessee, and all loss or damage to said Equipment or any part thereof occasioned by fire or in any other manner whatsoever shall be borne by the Lessee and shall not operate to extinguish or diminish liability of Lessee to Lessor. Lessee shall have said Equipment insured in favor of Lessor against fire and other hazards generally covered by extended fire coverage insurance any other hazards required by Lessor for the full insurance value thereof and the policy of insurance or proof satisfactory to Lessor shall be delivered to the Lessor. Any covered hereby shall be insured by the Lessee in companies acceptable to Lessor to the full extent of any balance remaining unpaid and all such policies shall name Lessor as a co-beneficiary. The policy shall bear an endorsement that the same shall not be cancelled or changed except upon at least thirty (30) days prior written notice to Lessor.
12. Payment and Interest. All rental payments are payable in advance without notice on demand at the office of Lessor, or at such other address as Lessor may specify in writing. Lessee’s obligation to pay the rental payments and all other amounts due or to become due hereunder shall be absolute and unconditional under all circumstances regardless of (i) any set-off, counterclaim, recoupment, defense or other right which Lessee may have or claim to have against Lessor for any reason, or (ii) any interruption in or cessation of Lessee’s use or possession of the Equipment for any reason whatsoever. For each rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay to Lessor a delinquency charge calculated thereon at the rate of one and one-half percent ( 1 ½ %) per month for the period of Lessee’s delinquency or at a Lessors’ option, five percent (5%) of such rental payment or other sum due hereunder, provided that such delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and Lessor can legally collect.
13. Return of Equipment. Upon expiration or termination hereof, Lessee shall return the Equipment to Lessor at Lessee’s sole expense in the same condition as when delivered to Lessee, ordinary wear and tear resulting from proper use thereof alone excepted. Lessee shall pay rent at the rate provided in paragraph 1 until all the Equipment arrives at Lessor’s premises.
14. Default. An event of default shall occur if (a) any rental payment of any other amount owed by Lessee to Lessor is not paid when due, (b) Lessee fails to perform any other obligation of Lessee hereunder, (c) Lessee ceases doing business as a going concern, admits in writing its inability to pay its debts as they become due, is insolvent or makes an assignment for the benefit of creditors, (d) any property of Lessee is attached, (e) there is instituted by or against Lessee any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, or insolvency law of any jurisdiction, or for the appointment of a receiver or trustee in respect to any of Lessee’s property. (f) Lessee reasonably deems itself insecure or the Equipment in danger of misuse, neglect, seizure, confiscation, levy, or attachment or (g) of any representation by Lessee.
15. Remedies. If any event of default occurs, all sums due and to become due to Lessor as rental payments and otherwise shall at the option of Lessor, become payable immediately and Lessor may, without notice, demand or liability to Lessee, enter into any premises of or under the control or jurisdiction of Lessee any agent of Lessee upon which the Equipment may be located upon which Lessor believes the Equipment to be located, and repossess the Equipment. In repossessing the Equipment, Lessor may disconnect and separate it from any other property and use all force necessary and permitted by applicable law to do so. Upon any such repossession, this lease shall terminate and be of no further force or effect. Lessee hereby expressly waives all rights to possession of the Equipment and all claims for injuries suffered through or loss caused by such repossession, and agrees Lessor may re-lease the Equipment for a term and at a rental rate which may be equal to or greater than, or less than the terms and rental rate herein. Any deficiency shall be paid by Lessee promptly upon demand. Nothing herein shall be construed to prevent Lessor from taking any other action at a law or in equity to enforce performance of this lease and to recover damages for breach hereof. Lessor, at is option, may require Lessee to assemble the Equipment and deliver the same immediately to Lessor, at Lessee's expense at such other remedy. A waiver of a default shall not be a waiver of any other or subsequent default.
16. Disclaimers and Release. The foregoing warranties are exclusive, and Lessee agrees that Lessor shall have no other warranty, obligation, or liability to Lessee with respect to any nonconformance or defect in any Equipment or other thing provided pursuant to this agreement, including, but not limited to (a) any implied warranty of merchantability or fitness for a particular purpose, (b) any implied warranty arising from course of performance, course of dealing or usage of trade, (c) any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence of Lessor (whether active, passive or imputed), and (d) any obligation, right, claim, or remedy for loss of or damage to any Equipment.
17. Exclusions of Consequential and Other Damages. Lessor shall have no obligation or liability, whether arising in contract (including warranty), tort, (including active, passive, or imputed negligence) or otherwise, for loss of use, revenue or profit, cost of capital, cost of substitute Equipment, additional cost incurred by Lessee at his plant or in the field (whether by way of correction or otherwise), Claims by Lessee or third parties for damage resulting from personal injury or property damage or any other incidental or consequential damages with respect to any nonconformance or defect in any item provided hereunder.
18. Performance Excused. Lessor shall not be liable for loss, damage, or delay in manufacture, shipment, or delivery of the Equipment or for its inability to perform any or all of its obligations hereunder due to any causes beyond Lessor’s control, including but not limited to acts of God, any acts or omissions of Lessee, acts of civil or military authorities, fire, flood, windstorm, earthquake, strikes or other labor disturbance, civil commotion, war, delays in transportation, late delivery by Lessor’s suppliers, fuel or other energy shortages or an inability to obtain necessary labor, materials, supplies, Equipment or manufacturing facilities. If any such clause results in a delay in performance, the date of delivery of performance shall be extended for a period equal to the time lost by reason of the delay, and such extension shall be Lessee’s exclusive remedy, or at its option, Lessor may terminate the Agreement without liability other than the return of any sums of money theretofore paid by Lessee hereunder. Acceptance of the Equipment by Lessee shall constitute a waiver of all claims for loss or damage due to delay resulting from any cause.
19. Conformance to Laws and Tax Payments. Lessee shall comply with and conform to all applicable laws, ordinances, rules, and regulations relating to the ownership, possession, use, or maintenance of the Equipment. Lessee shall be liable for any and all costs and expenses of every character occasioned by or arising out of such use, and pay promptly when due all taxes and other public charges against or upon the Equipment or the rental payments.
20. Title. All said Equipment shall remain personal property and title thereto shall remain in Lessor exclusively. Lessee shall keep the Equipment free from any and all liens and claims and do or permit no act or thing whereby Lessor’s title or rights may be encumbered or impaired.
21. Notice of Levy, Inspection, and Removal. Lessee shall whenever requested, advise Lessor of the exact location of the Equipment and shall give Lessor immediate notice of any attachment or other judicial process affecting the Equipment. Lessee shall indemnify and save Lessor harmless from any loss or damage caused by any attachment or other judicial process (other than a judicial process or attachment against Lessor). Lessor may, for the purpose of inspection, at all reasonable times enter upon any job, building, or place where the Equipment is located, and may immediately revoke the Equipment, with notice to Lessee, if the Equipment is, in the opinion of Lessor, being used beyond its capacity or in any manner improperly cared for or abused. Lessee will promptly notify the Lessor of any accident involving the Equipment of change of Lessee’s chief place of business or mailing address.
22. Non-waiver. Time is of the essence. Lessor’s failure at any time to require strict performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor's right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default. Lessor’s rights hereunder are cumulative and not alternative.
23. Solvency. Lessee warrants that it is solvent and able to pay for the Equipment being leased hereunder in accordance with the payment items.
24. Insignia or Identification. Lessee will not change or remove any insignia or lettering on the Equipment and shall conspicuously identify each item of the leased Equipment to indicate Lessor’s ownership.
25. Possession. Lessor covenants with Lessee that Lessor is the lawful owner of said Equipment and that, conditioned upon Lessee’s performing the conditions hereof, Lessee shall peaceably and quietly hold, possess, and use the Equipment during said term without hindrance.
26. Notices. All notices requires or permitted hereunder shall be in writing, sent by certified U.S. Mail, postage prepaid, return receipt requested, and addressed to Lessor or to the Lessee at the addresses appearing on the reverse side hereof or to such other addresses as either party may from time to time advise in writing.
27. Assignments. Lessee shall not assign this lease nor Lessee’s rights hereunder nor rent, sublease, allow or suffer the use of the Equipment, to or by others, except with Lessor’s written consent first obtained; the conditions hereby shall bind any permitted successors and assigns of Lessee. If Lessee assigns that rents reserved herein or all or any of Lessor’s other rights hereunder, assignee’s rights shall be independent of any claim of Lessee against Lessor. Lessee on receiving notice of any such assignment shall abide thereby and make payments as may therein by directed. Following such assignment the term “Lessor” shall be deemed to include or refer to Lessor’s assignee.
28. Applicable Law. This lease shall be governed by and construed in accordance with the laws of the State of Washington.
29. Miscellaneous. Transportation and cartage charges, including costs of loading and unloading and all costs incident to moving the Equipment, shall be borne by Lessee. Lessee admits the receipt of a true copy of this Agreement of lease. This Agreement shall be binding upon Lessee and its successors and assigns and insures to the benefit of the Lessor and its successors and assigns. Lessee will execute any additional agreements, assignments, or documents reasonably required by the Lessor to effectuate this Agreement.
30. Entire Agreement. The front AND reverse side hereof compose the entire agreement affecting this lease and there are no other agreements between Lessor and Lessee with respect to the leased Equipment except as may be set forth in writing either elsewhere in this lease or in a separate writing signed by Lessor, and upon acceptance by Lessor as provided for herein, this shall constitute the entire agreement between Lessor and Lessee. No present or subsequent modification of this Agreement shall be effective unless written hereon on contained in a separate writing accepted as required herein.
31. Invalidity. Each provision of this lease shall be considered separable and if, for any reason, any provision herein is determined to be invalid, such invalidity shall not impair or otherwise affect the validity of the other provision of this lease. If any provision is determined to be invalid, it shall be modified, if possible, to the extent necessary to remove such invalidity.