TERMS AND CONDITIONS OF RENTAL CONTRACT
For good and valuable consideration, you and AdvanceTrac Equipment LLC, a Texas limited liability company,
(also referred to herein as, "AT,” "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 of Rental Contract; "Rented Item(s)” or "Item(s)” means the item(s) rented to you,
as identified on P.1 (including any "Instructions” and/or safety devices provided per the terms of Section [or "§”]
5 below); "Site” means the delivery or use address set forth on P.1; and "Customer,” "Lessee,” "you” and "your”
mean the "Customer,” "Renter” or "Lessee” identified on P.1.
2. You agree to: (a) rent from AT the Rented Item(s) for the period(s) specified on P.1 (the "Term”); (b) fully
and timely pay us as and when due the rental rate(s) set forth on P.1 therefor (the "Rent”), together with all
other charges accruing hereunder, without proration, reduction or setoff; and (c) remain liable for all loss of
and/or damage to the Rented Item(s) for the entire Term and until all such Rented Item(s) is/are returned to
and accepted by AT in the proper return condition per § 11. Unless otherwise agreed in writing by AT, all
Rental rates are charged for normal use of the Rented Item(s), not exceeding 8 hours per 24-hour period for
which Rent is charged hereunder [each, a "Rental Day”], 40 hours per 7-Rental Day period, 160 hours per 28-
Rental Day period (zero hours for all uncharged-for periods) in accordance with the terms of this Contract.
Additional Rent will be charged as provided in § 11 for late returns and overuse. 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 or any other period(s) of unavailability or nonuse. We have
estimated the Rent based on your estimate of the length of the Term (the "Estimated Rent”). Unless otherwise
agreed by AT in writing, you: (i) will pay us: (A) any deposit and the Estimated Rent specified on P.1 in
advance (the "Prepayment”); and (B) all other amounts coming due hereunder upon demand; and (ii) agree
that: (A) we may deduct any amount you owe us from any Prepayment; (B) no interest will accrue on any
Prepayment; (C) no Prepayment will be deemed a limit of your liability under or in connection with this
Contract; and (D) all Prepayments are NON-REFUNDABLE except as provided in § 6. Anything remaining
with, in or on any Item(s) upon return will be deemed surrendered and abandoned.
3. Except with respect to Rented Items which we rent from one or more third parties (each, a "TPO”) and
then re-rent to you ("re-rented items”), AT owns and will retain title to all Rented Items at all times. You will
have exclusive control over the use of the Rented Item(s) during the Term, subject however, to your duty 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, transfer, sublease, re-rent, surrender, store, sell,
encumber, assign or dispose of any Item(s) or this Contract, without our prior written consent (in our sole
discretion). We may sell and/or assign all or any part of our interests in such Item(s) and/or this Contract, in
which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or
liabilities of AT or any TPO.
4. You shall ensure the Site is reasonably clean, safe, secure and otherwise fit for delivery and use of the
Rented Item(s) at all times without modification by AT. If we agree to provide any service(s) (including delivery
and/or retrieval), 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. We will not be
responsible for any delay(s) caused by other parties, including providers of other equipment or services
("Other Providers”) for which you agree to indemnify, defend and hold harmless AT. If you are not present
upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives regarding
the same (including status, condition, quality, utility and quantities of the Item(s) and the Site).
5. Upon the earlier of your receipt, or our delivery to the Site, of the Rented Item(s) unless you immediately
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 AT), carefully examined and tested by you or your agent(s);
and (b) you: (i) have carefully reviewed and understand all training, instructions, manuals, requirements, and
other information, if any, including all applicable EPA, OSHA, MSHA, ASME, IBC, IFC, IEEE, ASSE, DOT,
TxDOT, Texas DMV, FMCSA, ANSI and other standards (collectively, "Instructions”); (ii) will fully and timely
comply therewith (including Tier 4, Silica Dust, Cleaning and Disinfection requirements); (iii) have been made
aware of the need to use all applicable personal protective equipment (including as applicable, helmets,
goggles, gloves, boots, arm, leg and torso protection, fire extinguishers, lights, ventilation, and RESPIRATORY
PROTECTION devices); (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 affected parties, including governmental authorities, utilities, cable companies and the
owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly
marked before using any Item(s) to dig or disturb the ground surface (call 811 at least 3 full business days in
advance); (vi) will immediately cease using any Item that is damaged, breaks down, or proves defective (a
"Malfunction”); and (vii) will ensure that all others comply with this Contract at all times. You agree to
immediately notify: (A) the local police and AT in the event of any theft or accident involving any Rented
Item(s); and (B) AT if any of the other requirements of this Section shall prove incorrect.
6. In the event of a Malfunction as defined in § 5, you will immediately notify, and at our option, return the
Malfunctioning Item to, AT, and provided such Malfunction did not result from or in connection with any
wrongful or negligent act or omission of, or any breach of any provision of this Contract by, you or anyone you
permit to use or deal with such Item(s), we may, at our option: (a) repair such 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. We will have no other obligation(s) with
respect to Malfunctions, all of which you waive, together with all associated direct and indirect liabilities,
losses, claims and damages.
7. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS, AND SHOULD BE TRANSPORTED,
SERVICED, MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR ITS/THEIR
INTENDED PURPOSE(S), AND ONLY BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED,
SUPERVISED, INSTRUCTED, AND IF APPLICABLE, LICENSED, ADULTS. YOU AGREE TO PROVIDE ALL
APPLICABLE TRAINING, FAMILIARIZATION, INSTRUCTIONS AND WARNINGS TO ALL USERS,
OPERATORS AND OCCUPANTS OF THE RENTED ITEM(S), and ensure that each Item is used reasonably,
safely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically
agreed by AT on a case-by-case basis, at the Site; (d) by adults who satisfy the above requirements; and (e)
otherwise in full compliance with this Contract, at all times.
8. NO WARRANTIES: AT IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE ITEMS, all of
which are provided "AS-IS”. AT MAKES NO WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY
WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE,
FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND/OR CONTAMINATION,
GOOD AND WORKMANLIKE PERFORMANCE, AND ANY WARRANTY(IES) ARISING FROM ANY
COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) regarding any Item(s)
or Service(s) referenced in this Contract, nor does AT make any warranty(ies) against INTERFERENCE OR
INFRINGEMENT, all of which you waive. No depictions, models, descriptions, specifications,
recommendations or advertisements constitute representations or warranties by AT or any TPO.
9. You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits
of $1,000,000 per occurrence; (b) workers’ compensation and employer’s liability insurance; (c) property
damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; and (d) hired
auto liability and physical damage insurance, whenever possible: (i) naming AT as an additional insured and
loss payee; (ii) waiving subrogation against AT; (iii) being primary and non-contributory; and (iv) including such
other provisions (including deductibles) as AT may require. You irrevocably appoint AT as your agent and
attorney-in-fact for purposes of submitting, negotiating and settling claims on all such policies.
10. INDEMNITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU HEREBY:
(A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS,
THEFT, DAMAGE AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE
ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING WITHOUT LIMITATION,
ALL LIABILITIES, CLAIMS AND DAMAGES ARISING IN CONNECTION WITH THE SELECTION,
PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING,
TRANSPORTATION, DEMONSTRATION, STORAGE, CLEANING, CONTAMINATION, DISINFECTION, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL THEREOF (COLLECTIVELY,
"RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD DRAFT-
NOT ENFORCEABLE HARMLESS, ADVANCETRAC EQUIPMENT LLC, each TPO, their respective parents, partners, suppliers, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, representatives, subrogees, successors and assigns (each, an "Indemnitee”), for,
from and against all such RISKS (including without limitation, attorneys’ fees) as well as any breach of this
Contract by you, your agents, employees, contractors and/or invitees; and except only as provided in § 6, (C)
WAIVE all rights, remedies, claims, damages and defenses available under the Uniform Commercial Code, as
well as all direct, indirect, incidental, consequential, general, special, exemplary and punitive damages, against
each and every Indemnitee.
11. You agree to protect, properly service, maintain and care for each Rented Item at all times, keep it safely
and securely stored and locked when not in use, and return it to AT on time at the end of the Term, complete
(including all attachments), clean, free of contamination (including without limitation, silica, beryllium, asbestos
and pathogens), in good order, condition and repair, properly serviced and maintained, and if applicable, full of
the proper fuel, fluids and lubricants. If you fail to do so, then in addition to the amounts set forth on P.1, you
will pay us: (a) Rent at our highest incremental rate for each succeeding full rental period until all Item(s) have
been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure.
You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the influence of any
intoxi-cant(s) (including without limitation, CANNABIS AND ALCOHOL), abuse, misuse, overuse, conceal,
store with any third party, repair, modify or damage any Rented Item(s); (ii) violate any Instruction, insurance
policy or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous
substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or
with any Rented Item(s); (v) take possession of or exercise control over any Rented Item(s), without our prior
consent (in our sole and absolute discretion); or (vi) place or store in any Rented Item(s) any contraband.
12. This Contract shall be governed by and enforceable under the laws of Texas. Disputes arising under
and/or in connection with this Contract and/or its subject matter, shall, at the sole option of AT, be submitted to
binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association
at its office(s) located in or nearest to Dripping Springs, TX, before a single arbitrator selected by AT. Judgment on the arbitrator’s award shall be final and binding on the parties hereto and may be entered in any
court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith
shall lie exclusively in the federal, state and local courts located in or nearest to Hays County, TX (unless
waived by AT). You consent and submit thereto and waive all claims that such venue lies in an inconvenient
forum. EACH PARTY VOLUNTARILY WAIVES ITS RIGHTS TO: (A) PARTICIPATE IN ANY JOINT,
COLLECTIVE OR CLASS ACTION AGAINST THE OTHER PARTY HERETO; AND (B) TRIAL BY JURY.
13. This Contract, and any addenda(um) we provide (including, but not limited to, our forms of Rental
Purchase Option, Bill of Sale, Damage Waiver Guide and Addendum, and Consignment Agreement, each of
which is incorporated herein, represent(s) the entire agreement between you and AT, superseding all other
agreements and representations (including our website and advertising). The terms of this Contract are
severable. If any provision hereof shall be deemed invalid or unenforceable by any court or arbitral body of
competent jurisdiction, such provision will be deleted, and the remainder of this Contract will remain valid and
enforceable. This Contract cannot otherwise be amended or extended except in a writing signed by AT. Time
is of the essence. These Terms and Conditions apply to the 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 in writing). This Contract: (a)
constitutes an operating lease, and not a financing; (b) is fair and reasonable; and (c) shall bind and be
enforceable by you, AdvanceTrac Equipment LLC, the other Indemnitees, and such parties’ respective
insurers, successors and permitted assigns (there being no other third-party beneficiaries hereto). You agree
to pay all sales, use and other taxes (including without limitation, all Texas Emissions Reduction Plan and
Dealer’s Heavy Equipment Special Inventory taxes), as well as all tolls, fines, fees, duties, assessments and
other charges related to the Rented Item(s) and/or this Contract. In the event legal action is commenced in
connection herewith, we will be entitled to recover our costs and expenses associated therewith (including
without limitation, our attorneys’ fees and expenses) from you if we prevail. 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. To the maximum extent permitted under applicable law, you grant to AT: (a) a lien on all real and personal property: (i) placed in or on; and/or (ii) improved with, any
Rented Item(s); and (b) the right to claim on any bond provided in connection therewith. We may, without
notice or liability to you, monitor and/or inspect (in person and/or electronically, including via GPS and/or
telematics) any Rented Item(s) at any time. You consent thereto and agree that all information thereby
obtained will be our 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, tsunami, slide, subsidence, collapse, riot, war, violence or threat
thereof, theft, terrorism, cyber-attack, supplier delay, strike, shutdown, power surge or outage, epidemic,
pandemic and governmental and regulatory actions) or other events, facts or circumstances beyond our
reasonable control, we will be excused from such performance.
14. Your Rental shall be deemed a "net” rental. Accordingly, your obligations hereunder are unconditional
and are not subject to reduction, setoff, abatement or counterclaim for any reason. 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 AT reasonably deems itself insecure; or if any Rented
Item(s) shall be lost or damaged, you will be in DEFAULT hereunder and under such Other Contract(s),
whereupon, we 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,
disassemble 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 agree to indemnify, defend and hold harmless 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 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 shall remain cumulative and unimpaired.
15. If and only if, we have offered, and you have elected to purchase our OPTIONAL LIMITED DAMAGE
WAIVER ("LDW”) and paid the non-refundable LDW Fee set forth on P.1 before the Term commences, then
solely with respect to Item(s) covered by LDW ("Covered Items”), your liability for the cost to repair or replace
such Covered Items will be limited as set forth in our Damage Waiver Guide and Addendum, the terms of
which you hereby acknowledge and agree to. You may decline LDW if you provide the property damage /
inland marine insurance referenced in § 9. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY
16. This Contract shall be governed by and enforceable under the laws of Texas. Disputes arising under
and/or in connection with this Contract and/or its subject matter, shall, at the sole option of AT, be submitted to
binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association
at its office(s) located in or nearest to Dripping Springs, TX, before a single arbitrator selected by AT.
Judgment on the arbitrator’s award shall be final and binding on the parties hereto and may be entered in any
court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith
shall lie exclusively in the federal, state and local courts located in or nearest to Hays County, TX (unless
waived by AT). You consent and submit thereto and waive all claims that such venue lies in an inconvenient
forum. EACH PARTY VOLUNTARILY WAIVES ITS RIGHTS TO: (A) PARTICIPATE IN ANY JOINT,
COLLECTIVE OR CLASS ACTION AGAINST THE OTHER PARTY HERETO; AND (B) TRIAL BY JURY.
17. All amounts due to AT hereunder but not timely paid will bear interest at the lesser of: (a) 18% per
annum; or (b) the highest rate permitted under applicable law until paid. You authorize us to charge all
amounts coming due hereunder to any debit and/or credit card(s) you provide. You agree to pay us the
maximum lawful charge for any check you write which is returned unpaid. Our maximum liability in connection
with this Contract is limited to the amount(s) actually paid by you hereunder. Digital, electronic, photocopied
and facsimiled signatures appearing on this Contract and/or any Addenda(um) we provide will be deemed
originals.
18. WARNING: Wrongfully obtaining or withholding property and/or services of another which are available
only for compensation may be deemed THEFT, resulting in CIVIL LIABILITY and/or CRIMINAL
PROSECUTION. See Texas Penal Code § 31.04, et seq. and its/their successor(s) for details.