Terms and Conditions
Construction Equipment
AW Site Services LLC, a Delaware Corporation (the “Contractor”) provides these terms and conditions that apply to the Customer’s use of the equipment and services provided or offered now or in the future by the Contractor (the “Agreement”). Any terms in any agreement or other documentation that are in addition to or inconsistent with the Agreement are rejected by the Contractor and will have no effect.
Customer represents and warrants that Customer has the right, authority, and capacity to enter into legally binding agreements in an individual capacity or on behalf of an entity, and agrees that any agreement under these terms and conditions constitutes a valid agreement in Customer’s individual capacity or on behalf of an entity.
Customer represents and warrants that Customer has read the Agreement in its entirety and by clicking “I Accept” or otherwise accepting through any other reasonable means, electronic or otherwise, agrees to be bound by the Agreement.
1. Definitions.
1.1. “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.
1.2. “Customer” means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer.
1.3. “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 including, but not limited to, air hoses, electric cords, blades, welding cables, liquid fuel tanks and nozzles.
1.4. “Qualified Operator” means any individual who is permitted by Customer to operate the Vehicle. 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 Vehicles and/or Equipment. By operating the Vehicle, a Qualified Operator will be deemed jointly and severally responsible for Customer’s obligations related to the Vehicle and for any obligations that the Rental and Service Agreement imposes on a Qualified Operator of the Vehicle.
1.5. “Rental and Service Agreement” means the agreement made between Customer and AW Site Services LLC for AW Site Services 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.
1.6 “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 18 and 28 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 AW Site Services LLC.
1.7 “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.
1.8 “Service” or “Services” means the services provided by AW Site Services LLC in connection with the rental of Equipment, including Trench Services, Scaffolding Services, Portable Sanitation Services, Fluid Solutions Services, Power and HVAC Services and Tool Services (each as defined in Section 27 below).
1.9 “Specialty Media” means specialty filtration materials purchased in connection with the rental of Equipment used for fluid solutions, such as sand, gravel, carbon, or other materials used to remove certain contaminants or other materials.
1.10 “Store Location" means the AW Site Services LLC address set forth in the Rental and Service Agreement.
1.11 “Tanks” means the Equipment identified as rental items as part of the Fluid Solutions Services in which Customer stores materials.
1.12 “AW Site Services" means AW Site Services LLC.
1.13 “Vehicle” means a motor vehicle identified as the rental item(s) in a Rental and Service Agreement, reservation detail, or similar document; and “Vehicles” collectively refers to each such Vehicle.
2. Authority to sign; form contracts.
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.
3. Indemnity / Hold harmless.
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD AW SITE SERVICES, 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 AW SITE SERVICES RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST AW SITE SERVICES LLC BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY AW SITE SERVICES FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF AW SITE SERVICES . 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.
4. Inspection of equipment.
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 further acknowledges that Customer has inspected the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or public road prior to taking possession thereof, and such propulsion tank contained no dyed fuel. 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 AW Site Services is not responsible for any damage to Customer's towing vehicle caused by detachable hitches or mirrors. With respect to the rental of Tanks, Customer shall take independent action to ensure that any materials Customer stores in the Tanks are chemically compatible with the Equipment. Customer shall provide AW Site Services with the safety data sheet (“SDS”) or verified laboratory tests that identify the material Customer stores in the Tanks. For Tanks subject to the West Virginia tank law, Customer agrees that Customer has received a copy of the Certificate to Operate for each Tank identified rented under this Agreement.
5. Limitation of liability.
In no event shall AW Site Services 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) AW Site Services' failure to deliver the Equipment as required hereunder or AW Site Services' 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 AW Site Services and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.
6. Customer Responsibilities.
Customer shall provide AW Site Services with the information and the documentation AW Site Services 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 AW Site Services 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 AW Site Services 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 AW Site Services and its employees, and for ensuring that the Services are carried out in compliance with applicable laws.
7.1 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. Customer shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or other public road. In addition, Customer shall only use ultra-low-sulfur diesel fuel (“USLD”) in equipment with tier 5 engines. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD AW SITE SERVICES HARMLESS FROM ALL FINES, PENALTIES, DAMAGE TO EQUIPMENT AND ANY OTHER COSTS INCURRED BY AW Site Services DUE TO DYED FUEL BEING INTRODUCED INTO THE PROPULSION TANK OF SUCH VEHICLES. 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 AW Site Services if Equipment needs repair or maintenance. Customer acknowledges that AW Site Services has no responsibility to inspect the Equipment while it is in Customer's possession. AW Site Services shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.
7.2 Regulated materials.
If Customer intends to use the Equipment for the storage and handling of Regulated Materials (as defined herein), the following terms set forth in this Section shall apply.
7.2.1 Definitions. “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.
7.2.2 Tank Testing. Customer acknowledges that the Equipment may have contained Regulated Materials in the past. Customer may, at Customer's expense, test the Equipment for the presence of residual amounts of Regulated Materials prior to taking possession of the Equipment. In the event that residual amounts of Regulated Materials are detected in the Equipment by preliminary testing, Customer may notify AW Site Services and request new Equipment or Customer may terminate the rental. If Customer elects to continue use of the Equipment or elects not to test the Equipment, Customer will be bound by the terms set forth herein and waives any right to object to the presence of Regulated Material in the Equipment resulting from any prior use, and agrees that the Equipment is suitable for Customer’s intended use. Upon expiration or termination of the Rental Period, but before the Equipment is returned to AW Site Services, Customer shall, at Customer’s sole expense,remove all Regulated Materials from the Equipment and clean the Equipment to one of the following standards: (i) for Hazardous Substances: to the RCRA “empty” condition, as defined in 40 C.F.R. § 261.7(b)(3) (“RCRA Empty Condition”); or (ii) for DOT Hazardous Materials, PCBs, Radioactive Materials, or Infectious Materials: to Non-detect contamination levels (“NDCL”).
7.2.3 Cleaning. Prior to return, Customer shall clean the Equipment in accordance with the following requirements: (i) Cleaning must be performed by an independent contractor acceptable to AW Site Services; (ii) it must be documented to AW Site Services’ satisfaction; (iii) When a NDCL is required, Equipment must be triple-rinsed using a solvent capable of removing Regulated Materials, then purged to remove any vapors. Equipment can also be cleaned by another method capable of achieving equivalent removal to a NDCL; (iv)For Radioactive Materials, cleaning must comply with cleaning procedures set forth in the U.S. Nuclear Regulatory Commission’s (“NRC”) Regulatory Guide 1.86 to achieve a NDCL; and (v) the independent contractor must certify that the cleaning meets the above specifications.
7.2.4 Sampling. After cleaning, Customer will confirm the Equipment’s RCRA Empty Condition or NDCL, as applicable, by obtaining a professional written laboratory analysis of representative samples taken from various internal parts of the Equipment. Customer agrees the sampling must be: (i)performed by an independent contractor acceptable to AW Site Services; (ii) documented to AW Site Services’ satisfaction; (iii) taken from various internal parts of the Equipment including at a minimum, the floor, the underside of various cross-braces, and each wall (“Representative Samples”); (iv) conducted in the presence of and pursuant to the direction of a designated employee of Unite Customer agrees to contact AW Site Services to schedule an appointment for an employee of AW Site Services to witness the sampling not less than ten (10) business days prior to the termination of the rental term. For intermodal, roll-off, and vacuum container Equipment, in addition to the above requirements, Customer agrees that: (vi) Initially, 20% of the intermodal, roll-off, or vacuum container Equipment rented by Customer will be tested by the third-party laboratory. Based on satisfactory initial sampling results, and AW Site Services’ sole discretion, that figure may be reduced to 10%, random sampling; (vii) If liners are not used, or if any intermodal, roll-off or vacuum container Equipment fails the testing procedures outlined in Section 3(b), then 100% sampling of all intermodals, roll-offs or vacuum container equipment will be require
7.2.5 Sample Analysis. Customer agree that the analysis of the sampling must: (i) be performed by a laboratory acceptable to Lessor that is certified to perform such analysis by the state in which the Equipment is located; (ii) be documented to Lessor’s satisfaction, and must include a record of the chain of custody for the Representative Samples; (iii) meet or exceed protocols established by the U.S. Environmental Protection Agency (“EPA”) or the NRC, as applicable.
7.2.6 Return. Customer shall return the Equipment in a RCRA Empty Condition or NDCL in accordance with the terms set forth herein. If the Equipment does not meet the standard, Customer will undertake additional cleaning of Equipment, in accordance with all applicable law, to meet the standard, and will provide AW Site Services with written evidence of same. AW Site Services will not pick up the Equipment and Customer will continue to pay rental charges until the Equipment has been cleaned to the standards specified herein. In the event that Customer is unable to clean the Equipment in accordance with the terms set forth herein, Customer shall pay AW Site Services for the full replacement value of the Equipment, plus any applicable taxes. Customer agrees that in such event it assumes full ownership of and responsibility for the Equipment and any residual contents and all related liability for the management, transportation and disposal of such Equipment in accordance with all applicable laws. Customer agrees that it shall be the generator of any hazardous, solid, or radioactive waste generated as a result of Customer’s failure to return the Equipment in a RCRA Empty Condition or NDCL, and of any residual materials resulting from Customer’s attempt to clean the Equipment. Customer further agrees to indemnify, defend and hold AW Site Services harmless for any liability incurred by AW Site Services as a result of Customer’s breach of its obligations in this Section or as a result of AW Site Services being deemed a "generator" under applicable environmental laws. The foregoing indemnity obligation shall survive the termination or expiration of this Agreement.
8. Compliance with applicable laws.
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.
A. IN CALIFORNIA ONLY: If any of the Equipment is power-operated or power-driven excavating or boring equipment, it is the sole responsibility of Customer to follow the requirements of the regional notification center law pursuant to Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1 of the Government Code. By signing this Agreement, Customer accepts all liabilities and responsibilities contained in the California regional notification center law.
B. IN CALIFORNIA ONLY: For Equipment subject to California's Portable Equipment Registration Program, Customer acknowledges receipt of a written copy of the registration for each engine.
C. IN WEST VIRGINIA ONLY: To the extent Customer rents any Tanks from AW Site Services which are rented, transported, or used in West Virginia, Customer agrees to: (i) notify AW Site Services before moving any Tanks; (ii) notify AW Site Services whether on-site monitoring shall be provided for overfill protection; and (iii) comply with the Tanks’ spacing requirements of the West Virginia tank law relating to AST spacing at installation. Customer also agrees that by using the Tanks, Customer is agreeing that the Tanks have been installed in accordance with West Virginia tank law requirements, and that Customer is in receipt of copies of applicable safety and regulatory registration materials. Customer further agrees that Customer shall comply, at Customer’s sole cost, with all applicable requirements of the West Virginia tank law and the West Virginia public water supply protection law, including, but not limited to: (i) material compatibility of substances stored in any Tanks and associated piping; (ii) routine and monthly inspections of any relocated Tanks, or any Level 1 or Level 2 category Tanks and associated piping; (iii) leak detection inspections; (iv) site security requirements; (v) Tank foundation requirements; (vi) overfill protection monitoring; (vii) secondary containment requirements; (viii) delivery restrictions; and (ix) providing labels on the Tanks identifying on-site emergency contact information and information related to substances stored in the Tanks. Customer agrees to comply with the bonding and financial assurance requirements of the West Virginia tank law and to provide AW Site Services with evidence of such compliance based on Customer’s use of the Tanks.
9. Warranty/ Disclaimer of warranties.
AW SITE SERVICES WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD WORKING ORDER UPON DELIVERY AND THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, AW SITE SERVICES MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT, SPECIALTY MEDIA, OR SERVICES AND MAKES NO WARRANTIES AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING THE PERFORMANCE OF ANY FILTRATION EQUIPMENT TO MEET ANY APPLICABLE REGULATORY STANDARD. 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, AW SITE SERVICES 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, AW SITE SERVICES SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR OR REPLACE THE EQUIPMENT. IN THE EVENT OF A BREACH OF THE ABOVE SERVICE WARRANTY, AW SITE SERVICES SHALL, AT ITS SOLE COST AND EXPENSE, RE-PERFORM THE SERVICE.
10. Malfunctioning equipment.
Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify AW Site Services. If such condition is the result of normal operation, AW Site Services will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. AW Site Services 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.
11. Return of equipment/ Damaged & lost equipment.
At the expiration of the Rental Period, Customer will return the Equipment to the Store Location during AW Site Services' regular business hours or if AW Site Services has agreed to pick up the Equipment, AW Site Services shall endeavor to pick up the Equipment within a commercially reasonable period of time after Customer notifies AW Site Services 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. Tanks shall be empty of all contents as required by any applicable federal, state or local regulation, including but not limited to those set forth in the Resource Conservation and Recovery Act (“RCRA”). 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 AW Site Services. In the case of the loss or destruction of any Equipment, or inability or failure to return same to AW Site Services for any reason whatsoever, Customer will pay AW Site Services 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 AW Site Services the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. AW Site Services shall be under no obligation to commence repair work until Customer has paid to AW Site Services the estimated cost therefor. Customer agrees that AW Site Services 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.
Disinfecting: During a widespread or global occurrence of an infectious disease, for Equipment handled by a person known or suspected to be infected or used in a known or suspected zone of infection including but not limited to permanent or temporary healthcare facilities and testing facilities, ambulance interiors, and biological laboratories, Customer shall disinfect the Equipment in accordance with the following requirements: (i) disinfection must be performed by an independent contractor acceptable to AW Site Services; (ii) it must be documented to AW Site Services’ satisfaction; (iii) in the event Customer is unable to disinfect in accordance the Equipment, AW Site Services will disinfect it and charge Customer for the costs incurred.
In West Virginia only: if Customer rents tanks, upon return to AW Site Services, Customer agrees to provide AW Site Services with copies of: (i) tank inspections; (ii) any and all updated and amended Spill Prevention and Response Plans AW Site Services prepared to reflect the presence of the tanks at the job site; (iii) routine and monthly inspections, secondary containment area inspections, compatibility determinations, and relocation and leak detection inspections, all at the intervals prescribed by the West Virginia tank law for Level 1 and Level 2 classified tanks.
12. Reasonable wear and tear.
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 AW Site Services 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.
13. Late return.
Customer agrees that if the Equipment is not returned by the end of the Rental Period, or if the Tanks are not in RCRA Empty Condition ( as defined below) when AW Site Services comes to the Customer site to pick up the Tanks, AW Site Services, 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; or (D) assess a pickup charge if the Tanks are not in RCRA Empty Condition. Customer agrees that AW Site Services 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.
14. Rental period/ Calculation of charges.
Rental charges commence when the Equipment leaves the Store Location and end when the Equipment is either returned to the Store Location during AW Site Services’ regular business hours or picked up by AW Site Services after Customer notifies AW Site Services that the Equipment is “off rent” and obtains an “off rent” confirmation number from AW Site Services. Pick-up and delivery by AW Site Services is subject to a “Delivery and Pick-up Service Charge,” the amount(s) of which are disclosed on the Rental and Service Agreement. Notwithstanding anything to the contrary in the preceding sentence, for the rental of Tanks, the rental period continues until Customer has emptied the Tanks of all contents and cleaned the Tanks in accordance with all applicable regulations, including but not limited to RCRA (“RCRA Empty Condition”) and any equivalent state clean-up laws. 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, the cost of the Environmental Service Charge or other miscellaneous charges, the amount(s) of which are disclosed on the Rental and Service Agreement. Additionally, AW Site Services 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; (iii) re-lining or re-painting of Tanks; (iv) disposal of any contents left in Tanks; or (v) transportation to and from an approved repair facility. 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 AW Site Services 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 AW Site Services 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.
IN CALIFORNIA ONLY:
Customer acknowledges that an estimated personal property tax reimbursement charge will be applied to all rented Equipment at a rate of up to 0.75% of the rental amount. By signing this Agreement, Customer agrees to pay this charge.
15. Refueling service charge.
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.
16. Environmental service charge.
Due to the hazardous nature of some waste and other products, to comply with federal and state environmental regulations, and to promote a clean environment, AW Site Services charges an Environmental Service Charge for certain rentals. The Environmental Service Charge is not a government-mandated charge, is not designated for any particular use, and is used at AW Site Services’ discretion. The Environmental Service Charge is 2.00% of the service charge and will not exceed $99. Customer acknowledges the items indicated above are subject to the Environmental Service Charge and Customer agrees to pay that Charge.
17. Deposit & payment.
A. DEPOSIT: In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms of this Agreement to be performed by Customer. In the event of any breach by Customer, the deposit will be credited against any damages, cost or expense incurred by AW Site Services as a result of the breach.
B. PAYMENT: All amounts due hereunder shall be payable in full upon receipt of invoice by Customer. Customer acknowledges that timely payment of rental and service charges is essential to AW Site Services’ business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and AW Site Services agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of two percent (2%) per month (24% per annum) on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law. Effective January 1, 2021 and where permitted by law, AW Site Services may impose a surcharge of 1.8% for credit card payments on charge accounts. This surcharge is not greater than AW Site Services' merchant discount rate for credit card transactions and is subject to sales tax in some jurisdictions. Rental rates do not include sales tax, goods and services tax or other taxes, levies and assessments required to be collected by AW Site Services from Customer at any time upon, or in respect of, the Equipment and/or the Agreement (collectively, “Taxes”). Customer agrees that AW Site Services 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 or past due payment(s) or rental charges or Taxes. In the event Customer asserts that a transaction is exempt from Taxes, Customer agrees to provide a valid tax exemption certificate. Should the transaction later be deemed taxable, Customer is obligated to reimburse AW Site Services for any Tax assessed that was attributable to Customer.
18. Title/ No purchase option/ No liens.
With the exception of Specialty Media, the Agreement is not a contract of sale, and title to the Equipment shall at all times remain with AW Site Services. Unless covered by a specific supplemental agreement signed by AW Site Services, 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.
19. Tire and tube repair or replacement.
Repair or replacement of tires and tubes on Equipment is the responsibility of Customer and is not included in the rental rate.
20. Default.
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 AW Site Services anticipate that Customer may become Insolvent; or otherwise be in default. If Customer is in default, AW Site Services 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 AW Site Services’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 AW Site Services 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.
21. Customer's insurance coverage.
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 $2 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 $2 million per occurrence and $4 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 AW Site Services. Customer shall name AW Site Services as an additional insured for claims arising out of the maintenance, operation, or use by the Customer of equipment rented to Customer by AW Site Services (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 AW Site Services 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 AW Site Services or its insurers by the Customer and its insurers, as well as a waiver of subrogation against AW Site Services or its insurers. The policies required hereunder shall provide that AW Site Services must receive not less than 90 days' notice prior to any cancellation. Customer shall provide AW Site Services with documented proof of all required insurance coverage. FOR RENTAL OF EQUIPMENT NOT LICENSED FOR ROAD USE, CUSTOMER MUST EITHER (i) ELECT TO NAME AW Site Services AS LOSS PAYEE EVIDENCING PROPERTY INSURANCE COVERAGE, OR (ii) ELECT TO PURCHASE THE RENTAL PROTECTION PLAN.
22. No assignment, lending or subletting.
Customer shall not sublease, subrent, assign or loan the Equipment without first obtaining the written consent of AW Site Services, and any such action by Customer, without AW Site Services’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth in the Agreement unless AW Site Services approves otherwise in writing. AW Site Services 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.
23. Services provided in connection with rental of equipment.
23.1 TRENCH SERVICES. “Trench Services” may include the engineering, delivery and pickup of the trench/shoring system (the “System”). The System is to be used in complete accordance with any manufacturer’s tabulated data that is provided therefor. AW Site Services makes no representation or warranty about, and shall not be responsible for, such data. If AW Site Services provides an on-site observer (“the Observer”) to observe the installation of the System, neither the presence of the Observer at the jobsite nor the provision of the Trench Services by AW Site Services shall relieve Customer, and Customer assumes full responsibility for, the construction means, methods, sequence, techniques and procedures necessary to use the Equipment, including but not limited to the assembly, installation, welding, maintenance, deflection, dewatering and removal of the System in accordance with the requirements of this Agreement, the Occupational Safety and Health Administration Act (OSHA) and all other applicable federal, state, and local laws, rules, regulations, and ordinances.
23.2 SCAFFOLDING SERVICES. “Scaffolding Services” may include the installation and dismantling of scaffolding, including all parts and accessories thereto. Unless otherwise agreed to by the parties in writing, Customer shall (i) provide a clean, unobstructed, and safe area to perform the Scaffolding Services; (ii) move planking, sidewall brackets, and guardrails as necessary for completion of the Scaffolding Services; (iii) install toe boards, mesh, and/or patch ties in holes; (iv) maintain and use the Equipment in accordance with OSHA and all other applicable state and local regulations as well as the manufacturer’s safety rules and instructions; (v) keep all persons (other than AW Site Services employees) off and away from the Equipment during its erection and dismantling; (vi) take reasonable steps to protect all buildings, properties, and grounds, including but not limited to grass and landscaping; (vii) be solely responsible for providing all necessary and required fall protection to employees and others using the Equipment in compliance with OSHA regulations; and (viii) be solely responsible for determining if the ground, slab, roof, or structure(s) the Equipment is set upon is/are capable of supporting the loads, people, and materials used and placed upon the Equipment. In addition, Customer shall be responsible for obtaining all required permits necessary for the Scaffolding Services. Upon completion of the installation, Customer shall sign the Customer Acceptance Certificate provided by AW Site Services.
23.3 PORTABLE SANITATION SERVICES (to be provided by AW Site Services’s affiliate, Reliable Onsite Services). “Portable Sanitation Services” are optional and available upon request, and may include the periodic removal of domestic septic waste, cleaning of the portable restroom, holding tanks and other equipment, and the replenishment of supplies used with the equipment. When requested, Portable Sanitation Services will be provided once per week for the restrooms and for holding tanks. Additional servicing frequency is also available upon request and shall be charged on a per unit basis. If Reliable Onsite Services personnel are unable to service Equipment during regularly-scheduled service times, additional fees may be charged to return for such service. Additional fees may be charged for tip-overs, relocation of the units on the same site and vandalism/graffiti. Customer shall assure the Equipment is accessible to Reliable Onsite Services personnel and located in a clean, unobstructed and safe area. Customer shall not insert any hazardous materials in the Equipment, move the Equipment or attach any materials to the Equipment (including, but not limited to, tape, adhesives, posters, staples, mesh, etc.) without the prior written permission of Reliable Onsite Services. Customer is responsible for staking units to the ground or otherwise securing units to immovable objects.
23.4 FLUID SOLUTIONS SERVICES.
i. “Fluid Solutions”means fluid storage, transfer, and/or treatment, and includes but is not limited to, the rental of Tanks, pumps, filtration, and any accessories, attachments, or other items delivered to Customer, as well as any ancillary services thereto. Fluid Solutions may include the design, installation, operation, ongoing maintenance, monitoring, and dismantling of the Fluid Solutions system (“Fluid Solutions Services’). Customer shall provide accurate measurements, specifications and any supporting documentation to assist in the Fluid Solutions Services as requested by AW Site Services. Unless otherwise agreed to by the parties, Customer shall (i) have adequate lifting equipment on site to load and unload during set up and break down; (ii) insert, remove and maintain sewer pipe plugs and suction screens as necessary; (iii) provide any and all containment and required matting; (iv) obtain any and all rights of way, permits, and easements as necessary; (v) provide adequate staging areas, water sources, and access thereto; (vi) provide necessary controls of erosion, odor and traffic, including site restoration, as necessary; (vii) provide fueling and/or adequate power, including cable and an electrician, as necessary; (viii) perform daily inspection and maintenance of the Equipment during the Rental Period; and (ix) provide access at all times to the Fluid Solutions system and a clean, unobstructed and safe area to perform the Fluid Solutions Services.
ii. Scopeof Services and Change Orders. The scope of services (“Scope”) provided for each job shall be incorporated into the Agreement. Unless specifically agreed to in the Scope, Customer, at its cost and expense, shall obtain all required building and construction permits, inspections, or certificates, as well as any permissions and authority necessary to perform the Fluid Solutions Services. If the type of liquid, including its constituents and other characteristics (for example, viscosity, turbidity), the volume or the rate of flow (whether due to weather or other factors not specifically under AW Site Services’s control), or any other material information on which AW Site Services relied when designing the Fluid Solutions Services materially change at any time, AW Site Services shall notify Customer and request an emergency change order (“Emergency Change Order”). Customer acknowledges that, due to the nature of the Fluid Solutions Services which are tailored to specific information and data, in the event of such material change, it is imperative that Customer immediately respond to any request for Emergency Change Order to avoid a spill or other incident. Therefore, Customer shall designate one or more authorized representatives who will be available to AW Site Services 24/7/365 to respond to such requests. Customer agrees that the verbal or written approval (whether by email or text or other document) of such designated representative shall be binding and shall be subject to the terms and conditions set forth in the Agreement. Further, if Customer’s authorized representative does not immediately respond to such request, Customer agrees that AW Site Services, in its sole discretion, may take the action it deems most effective to mitigate any spill, incident or accident and Customer further waives the right to contest such action, agrees that AW Site Services shall not be liable to Customer in connection with such action, and Customer shall be responsible for the additional costs incurred thereby.
iii. Specialty Media. Specialty Media shall be deemed purchased under this Agreement on an AS-IS, WITH ALL FAULTS basis and is non-refundable once delivered to Customer. At the expiration of the rental period, Customer is responsible for emptying and disposing of all Specialty Media in compliance with applicable law. Any spent Specialty Media Customer generates is subject to disposition facility acceptance testing, at Customer’s sole cost and expense. The disposition facility may periodically re-test spent Specialty Media to assure it remains acceptable for disposition. If spent Specialty Media testing determines the spent Specialty Media is unacceptable for any designated disposition facility, use of an alternate disposition facility may result in additional cost and Customer shall pay said additional cost. Customer shall provide any and all information required by the disposition facility or to AW Site Services, related to the evaluation of the acceptance of spent Specialty Media.
23.5 POWER AND HVAC. “Power and HVAC Services” may include power and HVAC system start-up support, installation of low voltage cables, installation of temporary chilled water piping, on-site training for Customer’s employees, 24/7 technical assistance and on-site support, and monitoring of selected installing trades. Customer hereby consents to AW Site Services’s use of a third party technician to perform installation and hook-up services of the Equipment, if Power and HVAC Services are requested by Customer. Unless otherwise agreed to in writing by the parties, Customer shall (i) perform daily inspection and maintenance of all Equipment during the Rental Period; (ii) decontaminate Equipment of any chemical or hazardous fluids; (iii) obtain all necessary permits and regulatory inspections; (iv) replace dirty air filters on all air handlers and air conditioners; (v) load and unload all rental Equipment from trailers (if applicable); (vi) remove all fuel from any supplemental tanks prior to Equipment decommissioning; (vii) fuel and/or refuel all generators, boilers or fuel tanks with #2 fuel oil; (viii) check and record oil levels in generator daily; (ix) allow AW Site Services to perform service every 250 hours on all Equipment; and (x) furnish a qualified electrician to connect and disconnect Equipment to utility power.
23.6 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 AW Site Services 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 AW Site Services with a list of personnel authorized to check-in and check-out tools and/or allowed to request addition/removal of inventory.
23.7 VEHICLE RENTAL
i. Accidents, Theft and Vandalism. Customer must promptly and properly report any accident, theft or vandalism involving the Vehicle to AW Site Services and to the police in the jurisdiction in which such incident takes place. Customer should obtain details of witnesses and other vehicles involved and their drivers, owners and relevant insurances wherever possible. If Customer or any Qualified Operator receive any papers relating to such an incident, those papers must be promptly given to AW Site Services. Customer and any Qualified Operators must cooperate fully with AW Site Services’s investigation of such incident and defense of any resulting claim. FAILURE TO COOPERATE FULLY MAY VOID ANY AND ALL LIABILITY PROTECTION PURCHASED FROM, OR PROVIDED BY, AW Site Services. Customer and any Qualified Operators authorize AW Site Services to obtain any records or information relating to any incident, consent to the jurisdiction of the courts of the jurisdiction in which the incident occurs and waive any right to object to such jurisdiction.
ii. Third Party Charges. Taxes, tax reimbursements, vehicle licensing fees, governmental or other surcharges and similar fees are charged/recovered at the rates specified on the Reservation Details or as otherwise required by applicable law. Customer is responsible for paying these amounts to AW Site Services.
iii. Cleaning. Upon return, if the Vehicle in AW Site Services’s discretion requires more than AW Site Services’s standard cleaning, AW Site Services may charge Customer for the actual costs incurred by AW Site Services in having the Vehicle professionally cleaned. Customer will also pay a reasonable fee for cleaning the Vehicle’s interior upon return if any stains, dirt, odor, or soiling attributable to Customer’s use cannot be cleaned with AW Site Services’s standard post-rental procedures as determined by AW Site Services in our discretion.
iv. Smoking. AW Site Services maintains a non-smoking fleet, including a prohibition on the use of e-cigarettes in the vehicle. Customer will pay an additional charge if it returns the Vehicle and it smells or is soiled from smoke or vapor of any kind.
v. Recovery Costs. Customer is responsible for recovery expenses, consisting of costs of any and all kinds (and including attorneys’ fees and court costs) incurred by AW Site Services in recovering the Vehicle (i) under this Rental and Service Agreement; or (ii) if it is seized by governmental authorities as a result of the use of the Vehicle by Customer, any Qualified Operator or any other operator with Customer.
vi. Lost Keys/Key Fobs/Lockouts. If Customer loses the keys and/or key fobs to the Vehicle, AW Site Services may charge Customer for the cost of replacing such keys and/or key fob and for the cost of delivering replacement keys and/or key fobs and/or towing the Vehicle to the nearest Store Location to open such Vehicle. If Customer or Qualified Operator locks the keys and/or key fobs in the Vehicle and requests assistance from AW Site Services, AW Site Services may charge Customer for the cost of delivering replacement keys and/or key fobs and/or towing the Vehicle to the nearest Store Location to open such Vehicle.
vii. Parking and Traffic Violations. CUSTOMER WILL BE RESPONSIBLE FOR, AND WILL PAY WITHOUT DELAY, ALL PARKING AND TRAFFIC VIOLATIONS, AS WELL AS OTHER EXPENSES AND PENALTIES, ALL TOWING, STORAGE AND IMPOUND FEES AND ALL TICKETS INCURRED WHILE THE VEHICLE IS ON RENT TO CUSTOMER. IF CUSTOMER IS ISSUED AN AUTOMATED TRAFFIC VIOLATION, CUSTOMER AGREES TO PAY A “TRAFFIC VIOLATION SERVICE CHARGE” COMPRISED OF THE AMOUNT OF SUCH VIOLATION PLUS A FLAT FEE OF $20.00 WHICH IS THE AMOUNT OF AW Site Services’S OUT-OF-POCKET ADMINISTRATIVE COSTS FOR ITS TRAFFIC VIOLATION MANAGEMENT SERVICE. THIS CHARGE WILL BE BILLED TO THE CUSTOMER WHEN INFORMATION REGARDING ANY SUCH VIOLATION, AND EXPENSES RELATED THERETO, IS RECEIVED BY AW Site Services, AND MAY BE CHARGED AT A LATER DATE.
viii. Tolls, Violations and Fees. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR AND WILL PAY ALL TOLLS AND TOLL VIOLATIONS. IF CUSTOMER USES A TOLL-BY-PLATE SYSTEM, OR INCURS A TOLL OR TOLL VIOLATION, CUSTOMER AGREES TO PAY A “TOLLING SERVICE CHARGE” FOR THIS SERVICE. THE TOLLING SERVICE CHARGE IS THE AMOUNT OF THE TOLL PLUS A FLAT FEE OF $2.50 WHICH IS THE AMOUNT OF AW Site Services’S OUT-OF-POCKET ADMINISTRATIVE COSTS FOR ITS TOLL MANAGEMENT SERVICE. THE EXACT COST WILL BE CALCULATED AND CHARGED BASED ON ACTUAL USAGE OF A TOLL-BY-PLATE SYSTEM OR THE TOLL OR TOLL VIOLATION INCURRED. THIS CHARGE WILL BE BILLED TO THE CUSTOMER WHEN INFORMATION REGARDING TOLL-BY-PLATE USAGE AND/OR THE TOLL OR TOLL VIOLATION INCURRED, AND EXPENSES RELATED THERETO, IS RECEIVED BY AW Site Services, AND MAY BE CHARGED TO CUSTOMER AT A LATER DATE. CUSTOMER MAY AVOID THE TOLLING SERVICE CHARGE BY PAYING TOLLS WITH ITS OWN TRANSPONDERS, BY USING ANOTHER TOLL PAYMENT SYSTEM, OR BY AVOIDING TOLL ROADS ALTOGETHER.
ix. Mileage Charges; Additional Mileage Charges. For certain types of licensed, over the road Vehicles, the rental rate charged to Customer will include a specified number of miles per billing cycle. Customer will be charged for miles in excess of the specified number (the “Additional Mileage Charge”) upon the return of the Vehicle. The Additional Mileage Charge will be calculated by multiplying the number of additional miles driven as determined by the Vehicle’s odometer or telematics device (if applicable) by the charge per mile. For avoidance of doubt, the allowable number of miles per billing cycle and the rate for Additional Mileage Charges will be reflected in the Rental agreement and/or purchase order or similar documents.
x. Other Charges; Miscellaneous. Any other charges specified on or in the Rental and Service Agreement will be charged at the applicable rates specified therein. Any such charges which are stated on the Rental and Service Agreement as a daily rate shall be due and payable for each full or partial rental day. Charges for the rental of the Vehicle will continue to accrue until the Vehicle is returned to AW Site Services or, if the Vehicle has been stolen while in Customer’s possession, until Customer reports the theft both to the police in the jurisdiction in which the theft occurs and to AW Site Services.
xi. Return of Vehicle. SOME VEHICLES MAY HAVE TELEMATICS, TRACKING, AND RELATED SERVICES IN WHICH CASE, CUSTOMER UNDERSTANDS THAT ITS ACCESS AND USE OF THE VEHICLE OR THE SERVICES ARE SUBJECT TO THE VEHICLE, SERVICE PROVIDER’S AND/OR DEVICE MANUFACTURER’S TERMS AND PRIVACY STATEMENT, WHICH MAY INCLUDE BUT NOT BE LIMITED TO OTHER TERMS, SERVICE LIMITATIONS, WARRANTY EXCLUSIONS, LIMITATIONS OF LIABILITY, WIRELESS SERVICE PROVIDER TERMS AND PRIVACY PRACTICES. IN CALIFORNIA: ELECTRONIC SERVICE TECHNOLOGY INCLUDED IN THE VEHICLE MAY BE ACTIVATED IF THE VEHICLE IS NOT RETURNED WITHIN 72 HOURS AFTER THE CONTRACTED RETURN DATE OR EXTENSION OF THE RETURN DATE. FOR RENTALS COMMENCING IN ARIZONA: IT IS REQUIRED BY LAW THAT CUSTOMER ACKNOWLEDGE ITS UNDERSTANDING THAT IT WILL BE A VIOLATION OF ARIZONA STATUTES 13¬1806 IF THE VEHICLE IS NOT RETURNED WITHIN 72 HOURS OF THE DUE DATE AND TIME SPECIFIED ON THE RENTAL RECORD AND THAT CUSTOMER SHALL BE SUBJECT TO A MAXIMUM PENALTY NOT TO EXCEED US$150,000 AND/OR IMPRISONMENT OF 2.25 YEARS. BY RENTING A VEHICLE USING THE PROGRAM FOLLOWING DELIVERY TO CUSTOMER OF THESE NORTH AMERICAN TERMS, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS RECEIVED AND UNDERSTAND THIS NOTICE. FOR RENTALS IN THE DISTRICT OF COLUMBIA: IT IS REQUIRED BY LAW THAT CUSTOMER BE NOTIFIED THAT IF IT FAILS TO RETURN A RENTAL VEHICLE IN ACCORDANCE WITH THE NORTH AMERICAN TERMS, IT MAY RESULT IN A CRIMINAL PENALTY OF UP TO THREE YEARS IN JAIL. FOR RENTALS IN CANADA: IF AFTER 30 DAYS, AW Site Services IS UNABLE TO RECOVER THE VEHICLE, THE VEHICLE SHALL BE DEEMED TO BE UNLAWFULLY CONVERTED TO CUSTOMER’S USE, AND AW Site Services MAY EXERCISE ITS LEGAL RIGHTS TO REMEDY THE THEFT OF THE VEHICLE. CUSTOMER HEREBY WAIVES ANY AND ALL RIGHTS TO COMPLAIN OF THE STEPS TAKEN BY AW Site Services TO RECOVER A VEHICLE DEEMED TO BE UNLAWFULLY RETAINED BY CUSTOMER.
xii. Remote Drop Off Service Fee. A Remote Drop Off Service Fee will be applied if Customer returns the vehicle to a different location from its originating location. The fee will be calculated based on factors including the type of vehicle, time of year, and AW Site Services’s cost in transporting the vehicle from the return location. The charge will be disclosed when Customer notifies AW Site Services that Customer is returning the vehicle to a different location than where the vehicle originated. This fee can be avoided by returning the vehicle to its originating location.
24. Entire Agreement / Only Agreement
These terms and conditions and the front the Agreement, and any Addendum attached thereto, represent the entire agreement between Customer and AW Site Services 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 AW Site Services' 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 AW Site Services and Customer. Any use of Customer's purchase order number on this Agreement is for Customer's convenience only.
25. Order of precedence.
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 AW Site Services. In the event that AW Site Services 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.
26. Class action waiver
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 AW Site Services 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 AW Site Services. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
27. Jury Waiver.
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 AW Site Services, 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 AW Site Services. AW Site Services shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.
28. Other provisions
28.1 Any failure of AW Site Services to insist upon strict performance by Customer of any terms and conditions of this Agreement shall not be construed as a waiver of AW Site Services' right to demand strict compliance. Customer has carefully reviewed this Agreement and waives any principle of law which would construe any provision hereof against AW Site Services as the drafter of this Agreement. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement.
28.2 Customer agrees to pay all reasonable costs of collection, court costs, attorneys' fees and other expenses incurred by AW Site Services in the collection of any charges due under this Agreement or in connection with the enforcement of its terms.
28.3 Customer shall pay the rental charges without any offsets, deductions or claims.
28.4 Customer consents to the collection, use and disclosure of his or her personal identification and financial information as described herein and in AW Site Services’s Privacy Policy. Customer’s personal identification and financial information is provided voluntarily and not as part of a credit card transaction. Personal identification information includes, for example, Customer’s name, billing address, ZIP code, telephone number, date of birth, driver’s license number and email address. Financial information includes, for example, information related to any balances or invoices related to the Agreement. Customer’s personal identification information can be used for purposes of this transaction, any subsequent transactions with AW Site Services and for AW Site Services to evaluate and improve its products and services and/or develop new products or services. Customer’s personal identification information and/or financial information may be disclosed to contractors, service providers and other third parties that support AW Site Services’s business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
28.5 AW Site Services shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of (i) permanent closure of the Store Location; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government; or (iii) as otherwise set forth in this Agreement.
29. Criminal warning.
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.
30. GPS tracking
Customer and AW Site Services 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 AW Site Services owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes.
31. Force Majeure
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.
Address for Notice:
AW Site Services LLC dba ASAP Site Services
PO Box 2759
Columbia, MD 21045
