TERMS OF RENTAL AGREEMENT
Sonoma Inc. Building Supplies & Equipment Rental Rentals Terms of Rental Agreement
As of May 2024
SONOMA INC. RENTALS TERMS OF RENTAL AGREEMENT (“AGREEMENT”)
This Agreement and each Rental Contract set forth the rental terms and conditions between Customer and Sonoma Inc. The Agreement includes indemnification clauses, a class action and jury waiver, and limitations on Sonoma Inc.’s liability to Customer. If Customer accepts delivery of or uses the Equipment or makes payment for the same, Customer agrees to be bound by the Rental Contract and Agreement, even if the Rental Contract has not been fully executed by Customer. Unless approved by Sonoma Inc. in writing, Sonoma Inc. objects to and rejects all additions, exceptions, or changes to the Agreement, whether contained in any printed form of Customer or elsewhere. Any terms and conditions on Customer’s internet site, attached to an invoice, contained in a proposal or report, or purchase order will be null and void and have no legal effect on Sonoma Inc.
Definitions.
“Customer” means the person, firm, organization, partnership, corporation, trust, or other entity renting Equipment from Sonoma Inc, including but limited to Customer’s employees, agents, and contractors. “Customer Location” means the location where the Equipment will be located throughout the Rental and is identified on the Rental Contract. “Equipment” means the equipment identified on the Rental Contract and other similar items rented to the Customer, including accessories, attachments, attached tools, and parts. “Rental” means the Customer’s rental of the Equipment, which is the subject of this Agreement. “One-shift” means not more than 8 hours per day, 40 hours per week, and 160 hours every 4-week period. “Rental Charge” or “Rental Charges” means the rates and charges payable by Customer for the Rental as outlined in the Rental Contract. “Rental Period” means the minimum Rental period of 24 hours or the duration of the Rental as outlined in the Rental Contract. “Rental Contract” means the document provided to Customer, whether in person at a Sonoma Inc. location, online via the Sonoma Inc. website or portal, or at the time the Equipment is delivered or made available to Customer, which incorporates this Agreement, and includes the details of the Equipment, the Rental Charges, any other applicable charges, the expected Rental Period, and the Customer Location. “Sonoma Inc. Location” means the Sonoma Inc. branch address outlined in the Rental Contract.
Authority of Customer.
The individual signing this Agreement on behalf of Customer warrants that the individual is of legal age and has the power and authority to sign the Agreement on their own behalf and for Customer.
Customer Inspection.
Customer acknowledges that Customer is responsible for inspecting the Equipment upon delivery to confirm the Equipment is in good condition, safe and serviceable, without defects, including readable decals and operating and safety instructions, and is suitable for Customer’s intended use. If, after inspection, Customer has an objection to the Equipment, Customer must notify S Sonoma Inc immediately in writing and before use of the Equipment. Customer agrees that should Customer fail to notify Sonoma Inc. of any objection, it will be conclusively presumed that the Equipment is in good working condition. The customer is satisfied with and has accepted the Equipment for all purposes.
Rental Charges.
Rental Charges commence on the date specified in the Rental Contract and end when: (a) the Equipment is returned to the Sonoma Inc. location during Sonoma Inc.’s regular working hours in good working order and condition, ordinary wear and tear excepted; or (b) the Equipment is made available to Sonoma Inc at the Customer Location (as evidenced by the “call-off” confirmation number provided by Sonoma Inc) in good working order and condition, ordinary wear and tear excepted. No allowance will be made for Saturdays, Sundays, or time in transit, nor for any period of time, the Equipment may not be in actual use while in Customer’s possession. The customer is responsible for Rental Charges if the Equipment is unavailable for pick-up, lost, damaged, destroyed, or in need of repair until the date the Equipment is retrieved, repaired, or replaced.
Rental Charges are predicated on the Equipment not being operated over One Shift. The customer agrees to pay for meter overages and excess use beyond One Shift at the overtime rate specified in the Rental Contract or 1.5 times the Rental Charge for meter overages over One Shift if no overtime rate is specified in the Rental Contract.
Additional Charges.
In addition to the Rental Charges, Customer agrees to pay: (a) the cost of delivery, collection, and installation of the Equipment; (b) a cleaning charge if the Equipment is not returned clean and in good working condition; (c) the maintenance, repair, and replacement charges as provided herein; (d) a fuel service charge at the per gallon fee at the Sonoma Inc Location on the Equipment return date; (e) the EPP charge, if applicable; (f) the charges for any consumables, fees, fines, licenses, tolls, toll processing fees, present and future taxes, and any other charges based on the Rental; (g) the charges for Sonoma Inc having to inspect the Equipment or perform maintenance on the Equipment after regular business hours; (h) any fines and damages for use of dyed-fuel in on-road Equipment; (i) any fines and penalties related to Customer’s storage, transportation, or use of any hazardous substances; and (j) the miscellaneous charges for lost keys, Equipment recovery costs, and technician overtime.
Payment.
Payment for the Rental and all other equipment and services listed in the Rental Contract is due in advance at the time of Rental unless Sonoma Inc. approves the Customer for a Credit Account. If Customer has a credit account with Sonoma Inc., Customer must pay on a monthly basis, in arrears, upon receipt of invoice, either by cash, check, or automated clearing house. Customer must notify Sonoma Inc in writing of any disputed amounts, including credit card charges, within 15 days after receipt of the invoice, or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. If Customer does not pay the invoice by the due date, Sonoma Inc. may charge, in addition to any other costs recoverable under the Agreement, interest, calculated monthly, on the total outstanding balance at the rate of 1.5% or the highest legal rate, whichever is less. The customer agrees to pay $75.00 for each check returned for insufficient funds. Effective January 1, 2021, and where permitted by law, Sonoma Inc may impose a surcharge of 1.8% for credit card payments on charge accounts. Customer agrees that Sonoma Inc. reserves the right to charge Customer’s credit card, debit card, or customer account for any amount owed by Customer pursuant to the Agreement.
Customer Use.
Customer acknowledges and agrees that Customer: (a) selected the Equipment based on its requirements; (b) is familiar with the proper operation and use of the Equipment; (c) has access to and reviewed the manufacturer’s operating and safety instructions and will insure that the Equipment is operated in accordance with the manufacturer’s operation and safety instructions (d) will insure that the Equipment is operated with all applicable safety equipment; (e) will store the Equipment safely and securely; (f) will allow Sonoma Inc to enter the Customer Location or the physical location of the Equipment to inspect and maintain the Equipment from time to time in Sonoma Inc’s sole discretion.
Customer understands and agrees Customer shall not: (g) move the Equipment from the Customer Location without Sonoma Inc’s written consent; (h) alter, modify, tamper with, damage, or repair the Equipment without Sonoma Inc’s written consent; (i) deface, remove, vary, or erase any identifying marks, plate, number, notices, or safety information on the Equipment; (j) subject the Equipment to neglect, carelessness, misuse, or abuse, including, but not limited to, use beyond its rated capacity; (k) use the Equipment if it is damaged, unsafe, disabled, or malfunctioning; (l) use or allow anyone to use the Equipment for an illegal purpose, in an illegal manner, or without a license if required under applicable law.
The customer further acknowledges that Sonoma Inc.: (m) has no control over how the Equipment is operated during the Rental Period by the Customer or any third party; (n) is not responsible for providing any training unless Sonoma Inc. and the Customer agree in writing to provide such training.
Customer Maintenance.
The customer shall keep the Equipment in good working condition and perform all routine maintenance on it, including routine inspections and maintenance of fuel and oil levels, cooling and fluid systems, batteries, tires and tracks, cutting edges, filters, and transmission systems. The customer will also comply with the manufacturer’s preventative maintenance, operation, and safety instructions.
Malfunctioning Equipment.
If at any time, Customer finds that the Equipment is malfunctioning, needs repair, or in the event of any other concerns with the Equipment, Customer will immediately notify Sonoma Inc. Customer agrees that the Equipment will not be used until it is properly repaired, or such concern is properly addressed. Customer agrees that Sonoma Inc. will not be liable to Customer for loss of use of the Equipment while in need of repair or being repaired, nor shall Sonoma Inc. be liable to furnish substitute Equipment for any reason whatsoever.
Condition of Equipment Upon Return.
The customer shall return the Equipment to Sonoma Inc. in the same condition it was received, with less reasonable wear and tear, and free of any hazardous materials and contaminants. If Customer returns the Equipment in a damaged or excessively worn condition, Customer shall pay Sonoma Inc the cost of repairing the Equipment and the Rental Charges on the Equipment until repairs have been completed. If Customer damages the Equipment beyond repair, or if it would cost more to repair the Equipment than to replace it, or if Customer is unable to return the Equipment to the Sonoma Inc. Location for any reason, Customer will pay Sonoma Inc. the fair market value replacement cost (as determined by Rouse Services) and the Rental Charges on the Equipment until the Equipment is replaced. The customer agrees that Sonoma Inc. will not be obligated to begin repairs or replacement efforts until the Customer has paid the estimated repair or replacement costs.
Default.
In the event Customer (a) fails to make any payments due in accordance with this Agreement, (b) breaches any condition of this Agreement, (c) becomes insolvent or makes an assignment for the benefit of creditors, (d) applies for or consents to the appointment of a receiver, trustee, or liquidator, or (e) fails to insure the Equipment or otherwise places the Equipment at risk, Sonoma Inc may consider the Customer to be in default and shall have the option to terminate the Agreement immediately. Upon notification to Customer of their default, Sonoma Inc shall have the right and may, at its option, repossess the Equipment wherever it may be found, provided, however, Customer shall remain liable for all sums then due and unpaid through the date of termination, plus reasonable attorneys’ fees and such other costs and expenses (including transportation costs) as may be expended in the repossession of the Equipment. A default under this Agreement shall also be considered a default by Customer under any other Agreement that Customer may have with Sonoma Inc or any other Agreement that Customer’s parent, subsidiary or affiliate may have with Sonoma Inc. The remedies provided herein in favor of Sonoma Inc. shall not be deemed exclusive but shall be cumulative and shall be in addition to all other remedies in favor of Sonoma Inc. existing at law or in equity.
Equipment Title.
The Equipment is owned by Sonoma Inc., and title to it is, and shall remain, with Sonoma Inc. The Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. Upon request by Sonoma Inc., the Customer shall immediately execute and deliver to Sonoma Inc. UCC-1 forms for recording in the county where the Equipment is located. Under no circumstances will the Rental of the Equipment accrue equity in the Equipment.
INDEMNITY.
CUSTOMER HEREBY AGREES TO INDEMNIFY, DEFEND, RELEASE, AND HOLD HARMLESS SONOMA INC. FROM ANY AND ALL LIABILITY WHATSOEVER AND AGREES TO PAY ALL DAMAGES, LOSSES (INCLUDING THEFT), LIABILITIES, AND EXPENSES, INCLUDING ANY ATTORNEYS’ FEES, DEFENSE COSTS, AND OTHER EXPENSES, FOR ANY LIABILITY OR DAMAGES, INCLUDING PERSONAL INJURY AND DEATH OR PROPERTY DAMAGE ARISING FROM THE RENTAL, OPERATION, USE, TRANSPORTATION, POSSESSION, STORAGE, OR MAINTENANCE OF THE EQUIPMENT DURING THE TERM OF THE RENTAL CONTRACT AND THIS AGREEMENT OR WHILE THE EQUIPMENT IS IN THE CUSTODY OR POSSESSION OF CUSTOMER, ITS AGENTS OR REPRESENTATIVES. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD SONOMA INC. HARMLESS FROM ANY AND ALL SUCH CLAIMS EVEN THOUGH SUCH PERSONAL INJURY, DEATH, AND PROPERTY DAMAGE MAY BE ATTRIBUTABLE IN WHOLE OR IN PART, TO THE ALLEGED NEGLIGENCE, INCLUDING THE SOLE NEGLIGENCE, OF SONOMA INC., ITS EMPLOYEES, AGENTS OR CONTRACTORS AND INCLUDING, BUT NOT LIMITED TO, CLAIMS THAT SONOMA INC FAILED TO WARN OR GIVE INSTRUCTIONS ABOUT THE DESIGN, MANUFACTURE, CONDITION, REPAIR, OR MAINTENANCE OF THE EQUIPMENT OR ITS SUITABILITY FOR THE JOB FOR WHICH THE EQUIPMENTWAS RENTED OR IMPROPER OR INADEQUATE INSTRUCTIONS OR WARNINGS CONCERNING THE OPERATION, USE, CONDITION, OR SUITABILITY OF THE EQUIPMENT. CUSTOMER EXPRESSLY AGREES TO WAIVE ANY APPLICABLE WORKER’S COMPENSATION IMMUNITY IT MAY HAVE FROM SUITS MADE BY ITS EMPLOYEES AND TO INDEMNIFY, DEFEND, AND HOLD SONOMA INC HARMLESS FROM AND AGAINST ANY ACTUAL OR ALLEGED LIABILITY, LOSS, COSTS, DAMAGES, ATTORNEYS FEES, AND OTHER EXPENSES WHICH SONOMA INC MAY SUSTAIN OR INCUR AS A CONSEQUENCE OF ANY CLAIMS MADE BY CUSTOMER’S PERSONNEL AGAINST SONOMA INC.
DISCLAIMER OF LIABILITY.
NEITHER SONOMA INC NOR ITS REPRESENTATIVES SHALL BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO ANY RENTAL OR SERVICES PROVIDED PURSUANT TO THE RENTAL CONTRACT AND THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CUSTOMER ASSUMES ALL RISK OF LOSS WHILE THE EQUIPMENT IS IN ITS POSSESSION.
Insurance.
Customer agrees to maintain and carry, at Customer’s sole cost, the following insurance: (a) general liability insurance of not less than $1 million per occurrence, including coverage for Customer’s contractual liabilities contained herein; (b) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment, unless EPP is elected and paid for at the time of Rental; (c) worker’s compensation insurance as required by law; (d) automobile liability insurance if the Equipment is going to be used on any roadway. Customer’s policies shall be endorsed to (i) name Sonoma Inc. Rentals, Inc. as an additional insured; (ii) be primary to any and all insurance carried by Sonoma Inc.; and (iii) provide written notice of cancellation in accordance with the policy provisions. Insurance that excludes boom damage and overturns is a breach of the Agreement. The customer shall provide Sonoma Inc. with a certificate of insurance evidencing the required coverage prior to the Rental and upon Sonoma Inc.’s demand.
Disclaimer of Warranties.
If the Equipment is not provided in good working order, Sonoma Inc. may, at its sole discretion, repair or replace the Equipment or terminate the Rental, the Rental Contract, and this Agreement. It is understood between the parties that Sonoma Inc. is not the manufacturer of the Equipment or the agent of the manufacturer of the Equipment and that Sonoma Inc. makes no warranty, express or implied, with respect to the Equipment. Specifically, Sonoma Inc. disclaims any warranty, express or implied, with respect to (a) the merchantability of the Equipment, (b) the fitness of the Equipment for any particular purpose or use, (c) whether the use of the Equipment shall be uninterrupted or error free, (d) arising by any course of dealing, course of performance or usage of trade, (e) noninfringement, or (f) title to software.
Class Action Waiver.
Customer agrees that any claims or proceedings brought by Customer relating to the Rental, Rental Contract, and this Agreement will be conducted on an individual basis and not on a class-wide, mass, 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 Sonoma Inc. 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 Sonoma Inc. Nothing in this section, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
Governing Law and Jury Trial Waiver.
The customer agrees that the federal and state courts in the county where the Sonoma Inc. location is located shall have exclusive jurisdiction over all matters relating to the Rental, the Rental Contract, and this Agreement. In any dispute arising out of, in connection with, or in any way pertaining to the Rental, Rental Contract, and/or this Agreement, Customer and Sonoma Inc. hereby knowingly, voluntarily, and intentionally WAIVE ANY RIGHT TO A TRIAL BY JURY.
Collection of Data.
The customer consents to the collection, use, and disclosure of the data and information the Customer provides to Sonoma Inc., including personally identifiable information and financial information, as well as electronic monitoring and Global Positioning System data.
Purchases.
If the Rental Contract identifies any equipment, tools, materials, or other items that are to be purchased by Customer, Sonoma Inc. sells and delivers such items to Customer on an “AS IS, WHERE IS” basis with all faults and without warranties, express or implied, other than the manufacturer’s warranties, if any. Sonoma Inc. retains title to the items until the Customer has paid in full for any such items.
Criminal Warning.
The use of false identification to obtain Equipment or failure to return the Equipment by the end of the Rental Period may be considered theft subject to criminal prosecution and civil liability.
Equipment Protection Plan.
THIS CONTRACT OFFERS AN OPTIONAL LOSS DAMAGE WAIVER FOR AN ADDITIONAL CHARGE TO COVER YOUR RESPONSIBILITY FOR LOSS OF OR DAMAGE TO THE HEAVY EQUIPMENT. YOU DO NOT HAVE TO PURCHASE THIS COVERAGE. BEFORE DECIDING WHETHER TO PURCHASE THIS LOSS DAMAGE WAIVER, YOU MAY CONSIDER WHETHER YOUR INSURANCE POLICIES AFFORD YOU COVERAGE FOR LOSS OF OR DAMAGE TO THE HEAVY EQUIPMENT RENTED AND THE AMOUNT OF THE DEDUCTIBLE YOU WOULD PAY UNDER YOUR POLICIES.
Sonoma Inc. offers an optional Equipment Protection Plan (“EPP”) for an additional charge to cover the Customer’s responsibility for loss or damage to the Equipment. The EPP is not mandatory or available for equipment licensed for use on public roads. The EPP is not insurance. The EPP must be accepted or declined simultaneously with the Rental Contract. If Customer elects to participate in the EPP, and Customer pays 14% of the gross Rental Charges as the fee for the EPP (plus applicable taxes), Sonoma Inc agrees to limit the amount Sonoma Inc collects for loss, damage, or destruction to the Equipment to the EPP charge, and agrees not to charge the Rental Charges which would otherwise accrue during the period when damaged or destroyed Equipment is being repaired by Sonoma Inc or lost Equipment is being replaced.
EPP DOES NOT COVER LOSS OR DAMAGE TO THE EQUIPMENT AS A RESULT OF THE FOLLOWING: (a) damage to tires, tubes, or wheels caused by deflation, blowout, bruises, dents, cuts, or other causes resulting from the use of the Equipment; (b) damage from misuse or abuse of the Equipment; (c) loss of damage due to mysterious or unexplained disappearance, or caused by conversion of Customer, its employees or persons to whom the Equipment is entrusted; (d) wear and tear beyond generally accepted expectations; (e) improper maintenance; (f) breach of this Agreement (including operating the Equipment in violation of the operator manual); and (g) damage from exceeding rated capacity or striking overhead objects. Damages excluded in (a), (b), (c), (d), (e), (f), and (g) are not covered by the EPP and remain the liability of the Customer.