Alltite Sales and Rental Terms and Conditions
Revised Version Effective date: April 9th, 2015
By using the equipment purchased (“Purchased Equipment”) or rented (“Rental Equipment”) from Alltite, Inc. (“Alltite”) under any purchase order (“Purchase Order”) or rental order (“Rental Order”), as the case may be, you, the customer (“Customer”), expressly agree to be bound by the terms and conditions of this Alltite Sales and Rental Terms and Conditions (“Terms and Conditions”) applicable to your Purchase Order or Rental Order; and Alltite’s sale or rental of all Purchased Equipment and Rental Equipment are expressly conditioned upon Customer’s acceptance of the applicable terms contained herein. Further, the Terms and Conditions and any Purchase Order or Rental Order which refers to the Terms and Conditions are intended to and are agreed to collectively constitute one agreement (“Agreement”). For purposes of this Agreement, each Purchase Order or Rental Order is sometimes referred to as an “Order”, and all Purchased Equipment and Rental Equipment are sometimes referred to herein as “Equipment”.
1. Rental or Purchase of Equipment. Alltite hereby rents or sells, as the case may be, to Customer the items of Equipment described on its applicable Order, which are incorporated herein by reference. All additional Orders submitted by Customer shall also be governed by this Agreement and are hereby incorporated herein by reference.
2. Payment Terms.
(i) For all Rental Orders. In the event Customer submits a Rental Order, the rental fee (“Rental Fee”) to be charged hereunder shall be charged on an item by item basis, at the rate set forth on its applicable Rental Order. All Rental Fees and all other related charges, including taxes and shipping costs, will be paid in accordance with the Rental Order without demand, deduction, or abatement. All Rental Fee payments shall be made at the address specified for Alltite on the Rental Order, or at such other place as Alltite may designate. Any portion of the Rental Fees that remain unpaid following the date when due shall be considered overdue and subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month compounded monthly (19.6% per annum) or the maximum lawful rate. In addition, Alltite shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Customer for Alltite's costs of collection, including reasonable legal fees and disbursements. All billing issues or questions must be addressed within ten (10) days of the date indicated on Alltite’s invoice.
(ii) For all Purchase Orders. Customer shall pay the total amount of the purchase price (“Purchase Price”) and all other related charges, including taxes and shipping costs, indicated on the Purchase Order within thirty (30) days after receipt of Alltite’s invoice. All payments shall be made at the address specified for Alltite on the Purchase Order, or at such other place as Alltite may designate. Any portion of the Purchase Price that remains unpaid following such thirty (30) day period shall be considered overdue and subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month compounded monthly (19.6% per annum) or the maximum lawful rate. In addition, Alltite shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Customer for Alltite's costs of collection, including reasonable legal fees and disbursements.
(iii) Loaner Tools. Loaner tools are provided free of charge for up to 30 days in the event of warranty repairs. Alltite may extend the length of loaned tools in the event of warranty repair delays causing the repair to exceed 30 days. If the repair is deemed to be a non-warranty repair, the loaned tool period will be considered a Rental. If the loaner period exceeds 30 days and is not extended by Alltite or if the customer does not return Loaned Tools after warranty work is completed, the Loaned Tools will automatically begin to be treated as a Rental. Rental fees (“Rental Fees”) shall be charged at the current weekly retail price until the tools are returned. All Rental Equipment terms and conditions shall apply.
3. Inspection and Acceptance of Equipment.
(i) For Rental Equipment. Customer will inspect all Rental Equipment and will notify Alltite of any defects or shortages it discovers within forty-eight (48) hours of Customer’s receipt of the Rental Equipment. If Customer fails to provide Alltite with notice of defects or shortages within the forty-eight (48) hour period, Customer shall be deemed to have accepted the Rental Equipment “as-is”, “where-is” with all faults and shall be responsible for payment of all Rental Fees. All freight incurred in connection with Customer's return of the Rental Equipment or any repairs made necessary due to Customer's abuse or misuse of any Rental Equipment shall be at Customer's sole cost and expense.
(ii) For Purchased Equipment. Customer shall, at its sole cost and expense, inspect all Purchased Equipment immediately upon delivery. Within ten (10) days of Customer’s receipt of any Purchased Equipment and before its use or any change in appearance or from the original condition of any part of the Purchased Equipment (except for reasonable testing and inspection), (i) Customer may return any defective Purchased Equipment to Alltite for a full refund or exchange; or (ii) Customer may return any non-defective Purchased Equipment to Alltite for a full refund or exchange minus a fifteen percent (15%) restocking fee. Notwithstanding anything to the contrary herein, all sales of custom-ordered Equipment and non-stock items are final and not subject to return. Customer’s use of the Purchased Equipment or Customer’s failure to provide timely written notice to Alltite regarding any defect or shortage of Purchased Equipment within the ten (10) day inspection period shall constitute Customer’s unqualified acceptance of the Purchased Equipment and a waiver by Customer of any and all claims with respect to its conformity and acceptance. Notwithstanding Customer’s election to return any Purchased Equipment for any reason in accordance with this section, Customer shall be responsible for all inbound and outbound shipping and freight fees with respect to the purchase and return of the Purchased Equipment.
4. For Rental Orders Only. The following provisions will apply only to Rental Equipment:
(i) Rental Term. Unless terminated earlier as provided for herein, the rental term (“Rental Term”) for the Rental Equipment shall be for the period stated on the applicable Rental Order, commencing on the date when the Rental Equipment is received by Customer and continuing thereafter until Alltite takes receipt of the Rental Equipment in good working condition at its offices located in Wichita, Kansas, Williston, North Dakota, or Corpus Christi, Texas, as directed by Alltite. The minimum Rental Term for the Rental Equipment shall be three (3) days, unless the aggregate Rental Fees for the Rental Equipment is greater than Two Hundred Fifty Dollars ($250.00), or as otherwise agreed upon by Alltite. For clarification purposes, a Rental Term of “one week” as set forth on a Rental Order shall mean a period of seven (7) days, but a rental term of four (4) weeks shall mean one (1) month. It is expressly understood and agreed by Customer that if the Rental Equipment is not received by Alltite prior to or on the date of expiration, as provided for on the Rental Order, Alltite will charge Customer an additional daily fee equal to Alltite’s then current daily rental rates based on the number of additional days the Equipment is retained by Customer. All Rental Orders submitted by Customer are subject to availability of the applicable Rental Equipment.
(ii) Use of Equipment; Indemnity; Inspection. All Rental Equipment may only be used at the premises indicated on the Rental Order and shall not be removed from such location without the prior written consent of Alltite. Customer shall inform Alltite upon demand of the exact location of the Rental Equipment while it is in the Customer’s possession. Customer shall use the Rental Equipment in a careful and proper manner and shall comply with all manufacturer guidelines, laws, ordinances, and regulations relating to the possession, use, operation or maintenance of the Rental Equipment. Customer acknowledges the hazards associated with the handling, unloading, storage, transportation and use of the Rental Equipment and assumes the responsibility of advising those of its employees, agents, contractors and customers in connection with use of the Rental Equipment. To the fullest extent permitted by law, Customer shall defend, indemnify and hold Alltite harmless from and against any and all claims, demands, lawsuits, causes of action, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising directly or indirectly out of the acts or omissions of Customer (whether intentional or negligent) occurring during Customer’s possession or use of the Rental Equipment. Alltite, at all times during normal business hours, shall have the right to enter onto the premises where the Rental Equipment may be located for the purpose of inspecting it or observing its use. Customer shall not permit any attachment or lien of any kind to be placed on the Rental Equipment. Customer shall give Alltite immediate notice of any attachment, lien or other judicial process affecting the Rental Equipment and, whenever requested by Alltite, shall advise Alltite of the exact location of all Rental Equipment. Failure of Customer to: (1) provide access to the premises where the Rental Equipment is located; (2) advise Alltite of the exact location of the Rental Equipment; or (3) give immediate notice of any attachment, lien or other judicial process affecting the Rental Equipment shall constitute a material breach of this Agreement.
(iii) Surrender of Equipment. Upon the expiration or termination of each Rental Term, Customer shall at its own cost and expense return via standard commercial carrier all Rental Equipment to Alltite’s offices in Wichita, Kansas in good repair, ordinary wear and tear excepted.
(iv) Title; Risk of Loss. The Rental Equipment is, and shall at all times remain, the exclusive property of Alltite. Customer shall have no right or interest in the Rental Equipment except as expressly set forth hereunder. Custody to and all risk of loss or damage to all Rental Equipment resulting from any cause or event shall pass to Customer when Alltite places the Rental Equipment with a common carrier at Alltite’s shipping point and will remain with Customer until the Rental Equipment is returned to and received by Alltite. In the event of loss or damage to the Rental Equipment, Customer shall immediately notify Alltite of the nature, extent, and circumstances surrounding the loss or damage. Upon receipt of notice of any lost or damaged Rental Equipment and at the sole option of Alltite, Customer shall either (a) immediately return the damaged Rental Equipment and pay Alltite for the cost to repair the Rental Equipment; or (b) upon notice by Alltite, pay Alltite the fair market value price of the lost or damaged Rental Equipment. Upon receipt of the returned Rental Equipment, Alltite will inspect the returned items and Customer shall be solely responsible for any damaged or missing pieces of Rental Equipment discovered during Alltite’s inspection.
(v) Default/Termination. Upon the occurrence of any of the following events: (i) the failure of Customer to perform any of its obligations under this Agreement and such failure is not excused or cured within ten (10) days after written notice thereof; (ii) Customer fails to pay Alltite any amount when due by the date such payment is due and such failure shall remain uncured for a period of five (5) days; (iii) filing of a petition or otherwise commencing of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law; (iv) making of an assignment or any general arrangement for the benefit of creditors; (v) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing; (vi) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to Customer or any portion of its property or assets; and (vii) Customer being generally unable to pay its debts as they fall due, then Alltite, in its sole discretion and without prior notice to Customer, may do any one or more of the following: (a) Alltite shall have the right to retake immediate possession of the Rental Equipment and may enter upon any premises where such Rental Equipment may be located, with or without notice of Alltite's intention to retake the same; (b) Alltite may pursue any other remedy or remedies, which might be available to Alltite at law or in equity; or (c) set-off against any amount Alltite may owe to Customer under other agreements between the Alltite and Customer.
5. For Purchase Orders Only. The following provisions will apply only to Purchased Equipment:
(i) Use of Equipment; Indemnity. Customer shall use the Purchased Equipment in a careful and proper manner and shall comply with all manufacturer guidelines, laws, ordinances, and regulations relating to the possession, use, operation or maintenance of the Purchased Equipment. Customer acknowledges the hazards associated with the handling, unloading, storage, transportation and use of the Purchased Equipment and assumes the responsibility of advising those of its employees, agents, contractors and customers in connection with use of the Purchased Equipment. To the fullest extent permitted by law, Customer shall defend, indemnify and hold Alltite harmless from and against any and all claims, demands, lawsuits, causes of action, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising directly or indirectly out of the acts or omissions of Customer (whether intentional or negligent) occurring during Customer’s possession or use of the Purchased Equipment.
(ii) Security Interest; Risk of Loss. Title in the Purchased Equipment shall not pass to Customer until full payment of the Purchase Price has been received by Alltite. Customer hereby grants and Alltite hereby reserves a purchase money security interest in the Purchased Equipment (including all accessions, accessories, parts, supplies and replacements thereof) and the proceeds thereof until all obligations of Customer to Alltite from time to time are satisfied in full. Customer hereby appoints Alltite as its attorney-in-fact to prepare, sign and file in Customer's name any financing statement or other document necessary to perfect Alltite's security interest and also agrees that Alltite may take any action necessary to perfect the security interest of Alltite in the Purchased Equipment. Notwithstanding the retention of title, all risk of loss or damage to any Purchased Equipment resulting from any cause or event shall pass to Customer when Alltite places the Purchased Equipment with a common carrier at Alltite’s shipping point. Customer assumes all of the obligations and risks of an absolute owner and agrees to indemnify and save harmless Alltite from any and all loss or damage or claim for loss or damage to persons or properties caused by reason of the use, possession or operation of the Purchased Equipment.
6. Limited Warranty and Limitation of Liability.
(i) Limited Warranty For All Equipment. In the event Customer submits an Order, Alltite warrants only, at the time of delivery, that the Equipment will conform to Alltite’s then current specifications for the specific Equipment sold or rented hereunder. Provided, if Customer submits a Purchase Order, Alltite will deliver good title to the Purchased Equipment free of all liens or encumbrances and will pass through all applicable manufacturer warranties. Customer, having the expertise and knowledge in the intended use of Equipment sold hereunder, assumes all risk and liability for results obtained by the use of Equipment. EXCEPT AS SET FORTH IN THIS SECTION, ALLTITE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR A PARTICULAR PURPOSE, CONDITION OR QUALITY OF THE EQUIPMENT, OR ANY TRADE USAGE OR DEALING. ANY DETERMINATION OF THE SUITABILITY OF THE EQUIPMENT FOR THE USE CONTEMPLATED BY CUSTOMER IS CUSTOMER’S SOLE RESPONSIBILITY.
(ii) Limitation of Liability/Limited Remedies for All Equipment. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ALLTITE BE LIABLE TO CUSTOMER FOR ANY LOST OR PROSPECTIVE PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON ALLTITE’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION. Customer’s exclusive remedy from Alltite for any cause of action related to this transaction, including failure to deliver or late delivery, is, at Alltite’s option limited to (i) replacement of the non-conforming Equipment; or (ii) refund to Customer of the portion of the purchase price or rental payments made by Customer attributable to such non-conforming Equipment. In no event shall Alltite’s cumulative liability exceed the purchase price paid for the Purchased Equipment or the Rental Fees paid for the Rental Equipment, as the case may be, which was the direct cause of the alleged loss, damage or injury. IN ANY EVENT, CUSTOMER AGREES THAT THE RETURN OF the purchase price or ALL Rental FeeS MADE TO ALLTITE FOR THE PURCHASED EQUIPMENT or RENTAL EQUIPMENT, AS THE CASE MAY BE, WHICH WAS THE CAUSE OF THE ALLEGED LOSS, DAMAGE OR INJURY WILL PREVENT THE FOREGOING REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE, AND THAT SUCH REMEDIES ARE FAIR AND ADEQUATE.
7. Governing Law/Arbitration. The validity, performance, construction and effect of all matters arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the laws of the State of Kansas, and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Kansas or in any federal court sitting therein. In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder will be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction. No actions, regardless of form or basis, arising out of or related to this Agreement may be brought by either party more than two (2) years after the cause of action has first accrued except that an action for nonpayment may still be brought within two (2) years after the date of last payment owed by Customer under this Agreement.
8. Assumption of Risk. All technical advice, services and recommendations made explicitly or implicitly by Alltite are intended for use by persons having skill and know-how, and are accepted by Customer at its sole risk and Alltite assumes no responsibility/liability for results obtained or damages incurred from their use.
9. No Third Party Beneficiaries. This transaction is solely for the benefit of Alltite and Customer and shall not be deemed to confer upon, or grant to, any third party any right, claim, cause of action or interest.
10. Miscellaneous. This Agreement and each applicable Order constitute the entire agreement between the parties and expressly supersedes any prior dealings, understandings or arrangements, oral or written, between the parties. No statements or agreements, oral or written, not contained herein or any Order, or in a future proposed written amendment shall have any force or effect unless signed by authorized representatives of Alltite and Customer. Any term or condition of an offer set forth on any Order expressly supersedes any conflicting term or condition of this Agreement. Waiver by either party of any breach of the terms or conditions contained herein or in any Order will not be construed as a waiver of any subsequent or other breach. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of its other provisions.
11. Force Majuere. Neither party will be liable for any delay or failure to perform its obligations solely due to any cause beyond its reasonable control. Any delay resulting from such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable. Provided, that no cause shall delay or excuse the timely payment of any payments or fees due under this Agreement.