C & B Material Handling, LLC Rental Terms and Conditions

Last Modified: 08/31/2022


By renting equipment from C & B Material Handling, LLC, a South Dakota limited liability company (“Lessor”) and executing the attached Rental Agreement, Lessee hereby agrees to be bound by all the following terms and conditions, which are incorporated thereto and Lessee acknowledges the reasonableness thereof.

LEASE, TERM AND TERMINATION. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment described as Equipment Under Rental on the Rental Agreement cover page (the "Equipment"). The term of this Rental Agreement commences on the date of this Rental Agreement and continues for the stated period unless extended by written agreement of the parties or earlier terminated as provided under this Rental Agreement (the "Term"). Lessor may terminate this Rental Agreement and repossess the Equipment immediately and without further notice if Lessee: (i) fails to pay any amount when due under this Agreement; (ii) violates or does not comply with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

TRANSPORTATION, STORAGE AND OPERATION. If applicable, the Lessee will, at the Lessee's own expense and risk, pick up and transport the Equipment to and from Lessor's stated shipped from facility. Lessee shall properly secure the Equipment, as well as all component parts, at all times during transport and while in the possession of Lessee. Lessee shall not remove the Equipment from Lessee's address listed on the Rental Agreement without prior written approval of Lessor. Lessee shall review all operational and safety instructions ("Instructions") before beginning use of the Equipment and shall insure that any other person that operates the Equipment is also familiar with all such Instructions. Lessee shall not permit anyone under the age of 18 to operate the Equipment. Lessee shall insure that each person operating the Equipment does so in a reasonable and safe manner and that all operators shall take into account any conditions that may affect safe operation of the Equipment, including but not limited to, terrain, slope, water, ice, lighting, weather, and any surrounding people, animals, equipment or structures.

RENT. In consideration of Lessee's right to possess and use the Equipment during the Term, Lessee shall pay the rent at the stated rates ("Rent"), which is exclusive of sales tax and due on the date of this Rental Agreement.

DEPOSIT. If applicable, the Lessee will pay a deposit (the "Deposit") before taking possession of the Equipment. The Lessor will refund the Deposit to the Lessee at the end of the Term provided that the Lessee has performed all of the Lessee's obligations under this Rental Agreement. Lessor shall have the right to deduct from the Deposit the amount of any unpaid obligation of Lessee, including the cost to repair any damage to or replace any loss of the Equipment while in Lessee’s possession. Any deduction or offset from the Deposit shall not relinquish Lessee’s obligation to pay Lessor the unpaid balance of any Holdover Rent or other reimbursement due to Lessor.

LIMITED WARRANTY. Lessor’s sole warranty is that the Equipment will be in good working order and operational upon commencement of this Rental Agreement. LESSOR MAKES NO OTHER WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY, OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

TITLE AND RISK OF LOSS. Title to the Equipment shall remain with Lessor throughout the Term, and Lessee shall acquire no right, title, or interest in the Equipment and Lessee shall not pledge or encumber the Equipment in any way. Lessee shall bear all risk of loss, damage, destruction, and theft to or of the Equipment from any cause whatsoever until the Equipment has been returned to Lessor and shall be obligated to fully reimburse Lessor for its cost to repair any damage to or to replace Equipment that is lost or destroyed.

RETURN OF EQUIPMENT. Unless otherwise agreed to in writing, Lessee shall return the Equipment, at Lessee’s risk and expense, to Lessor's facility on or before the stated Term end date. Lessee shall return the Equipment in the same condition as when delivered to Lessee, ordinary wear and tear excepted.

COMPLIANCE WITH INSTRUCTIONS AND LAWS. Lessee shall (a) comply with all Instructions as well as applicable laws, regulations, and ordinances governing operation of the Equipment, and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it may need to operate the Equipment or to carry out its obligations under this Rental Agreement. Lessee shall pay all taxes due under this Rental Agreement.

INDEMNIFICATION. Lessee shall indemnify, defend, and hold harmless Lessor, and its owners, employees, and affiliates, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Rental Agreement, and the cost of pursuing any insurance providers, relating to any claim by a third party or Lessor arising out of or occurring in connection with (a) Lessee’s use of the Equipment or use of the Equipment by anyone under Lessee’s control, including but not limited to Lessee's negligence or willful misconduct, or (b) Lessee’s breach of this Rental Agreement. Lessee shall not enter into any settlement without Lessor's prior written consent.

LIMITATION OF LIABILITY. IN NO EVENT SHALL LESSOR BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO LESSEE’S USE OF THE EQUIPMENT OR ANY BREACH OF ANY PROVISION OF THIS RENTAL AGREEMENT BY LESSOR, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LESSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) 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. IN NO EVENT SHALL LESSOR'S AGGREGATE LIABILITY UNDER THIS RENTAL AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO LESSOR HEREUNDER.

INSURANCE. Lessee represents and warrants to lessor that during the entire Term of this Rental Agreement, Lessee shall, at its own expense, maintain and carry insurance in full force and effect to perform its obligations under this Rental Agreement, which includes, but is not limited to, liability insurance and property insurance against loss, theft, and damage in an amount of at least the full replacement value of the Equipment with financially sound and reputable insurers. If requested by Lessor, Lessee shall provide Lessor with a certificate of insurance from Lessee’s insurer evidencing the insurance coverage specified in this Rental Agreement. The certificate of insurance shall name Lessor as an additional insured.

MISCELLANEOUS. Lessee shall not (A) transfer or subcontract the Equipment, (B) enter into any sublease, or otherwise (C) assign, transfer, or delegate any of Lessee’s rights or obligations under this Rental Agreement without the prior written consent of Lessor. This Rental Agreement, including and together with these terms and conditions and any related schedules or attachments, constitutes the sole and entire agreement of the parties with respect to the rental and sue of the Equipment, and supersedes all prior or contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. Subject to the limitations and other provisions of this Rental Agreement, these representations, warranties and obligations of Lessee contained herein shall survive the expiration of the Term or earlier termination of this Rental Agreement for any reason, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination. If any term or provision of this Rental Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Rental Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended. No waiver by a party of any of the provisions of this Rental Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. The failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Rental Agreement shall not operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. This Rental Agreement and all matters arising out of or relating to this Rental Agreement are governed by, and construed in accordance with, the laws of the State of South Dakota, without regard to the conflict of laws provisions of such state. Any legal suit, action, or proceeding arising out of or relating to this Rental Agreement must be instituted in the United States District Court for the District of South Dakota or the courts of the state of South Dakota, in each case located in Sioux Falls, South Dakota, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.