SUNSTATE TERMS AND CONDITIONS

September 2024

THESE TERMS AND CONDITIONS (“AGREEMENT”) ARE FOR THE RENTAL OF ALL EQUIPMENT, VEHICLES, AND ITEMS, INCLUDING ALL PARTS OF AND ACCESSORIES TO SUCH (“EQUIPMENT”).

BY ACCEPTING THE EQUIPMENT, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.

RENTAL PERIOD AND ACCOUNTS: Sunstate Equipment Co., LLC (“Sunstate”) hereby rents the Equipment to Customer for the period commencing when the Equipment leaves Sunstate’s premises and ending upon its return to Sunstate’s premises or, if the Equipment is to be delivered to Customer by Sunstate, commencing when the Equipment is delivered to Customer, and ending when Sunstate picks up the Equipment, subject to a charge for minimum rental period. Sunstate may terminate the rental at any time by written notice to the Customer and retaking the Equipment. While in Customer’s possession, no rental allowance will be made for Sundays, holidays, or any period the Equipment is subject to repair.

Any disputed invoices must be brought to Sunstate’s attention within fifteen (15) days of receipt, or the invoices must be deemed correct and undisputed. At Sunstate’s discretion, any account with a delinquent balance may be placed on a hold basis, and deposits may be required, or the equipment may be picked up without notice. Customer agrees that if Sunstate refers this Agreement to an agency or attorney for enforcement, Customer will pay Sunstate’s reasonable agency and attorney fees and costs, including lien preparation costs, incurred for the enforcement hereof, whether a lawsuit is filed.

Customer authorizes Sunstate to make whatever credit inquiries it deems necessary in connection with this Agreement. Bank and trade reference(s) can accept this authorization to disclose to Sunstate and their respective designees (and any assignee or potential assignee thereof) Customer information typically released to a prospective creditor, including the length of time the account has been active, average monthly balances, payment trends, and details of any lending relationship. Customer represents and warrants that Customer is not a “Consumer” as defined in the Federal Consumer Credit Protection Act, or any acts there under, and they waive any rights granted to them under those acts, their successors, or under other Federal or State Laws pertaining to “Consumer’” rights. Customer further represents and warrants that all rentals, purchases made, or credit extended hereunder will be used solely for business and commercial purposes. The individual who is either a principal of the credit applicant or a sole proprietorship of the credit applicant, recognizing that his or her individual credit history may be a factor in the evaluation of the credit history of the applicant, hereby consents to and authorizes the use of a consumer credit report on the applicant by Sunstate, from time to time as may be needed, in the credit evaluation process.

Terms: NET 30 upon issuance of Invoice (Invoice Date). Service charges are assessed on past due amounts at the lesser of 1.5% per month or the maximum rate permitted by law.

EXCESS USAGE CHARGE: Rental rates are for normal and reasonable use of Equipment not exceeding eight (8) hours per day, five (5) days per week (one-shift basis). Excess usage rates are prorated: two shifts are charged at 1-1/2 times the normal rate, and three shifts are charged at two times the normal rate.

RECEIPT AND USE OF EQUIPMENT: By accepting delivery, Customer acknowledges that the Equipment is in good working and secure condition, including all devices and materials needed to use the Equipment. Customer shall not abuse, harm, or improperly operate the Equipment and shall possess and operate it in conformance with all applicable laws, standards, and regulations. Customer shall be solely responsible for the operation of the Equipment and allow only licensed, trained, and experienced operators to operate the Equipment in accordance with all Equipment specifications and customary safety practices. Customer shall not allow anyone other than Customer’s qualified employees to operate the Equipment without Sunstate’s express written authorization.

FAILURE OF EQUIPMENT: In the event of equipment failure, Customer shall immediately notify Sunstate and return it to Sunstate’s premises. Without Sunstate’s written authorization, Customer shall not incur any expenses for Sunstate to repair the Equipment.

REPAIR OR REPLACEMENT: Customer acknowledges that repair and replacement of the Equipment and tires are not included in the rental rate and agrees to pay for the repair (including labor) or the total replacement cost of any Equipment and tires returned to Sunstate in a damaged condition, regardless of the cause of damage, except for reasonable wear and tear.

RETURN OF EQUIPMENT: Customer shall return all the Equipment to Sunstate’s premises during Sunstate’s regular business hours, in the same condition and repair as when delivered to Customer, subject only to reasonable wear and tear. Customer shall be liable for all damages to or loss of the Equipment because it was not returned within Sunstate’s regular business hours. If Sunstate has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer, Customer shall be responsible for all loss or damage to the Equipment or any third party from the time of delivery to Customer until picked up by Sunstate. The Equipment is in the possession and responsibility of Customer until Sunstate regains physical possession. Fuel charges will apply if the equipment is not returned with a full tank.

HAZARDOUS MATERIALS: Customer represents and warrants that it shall return all Equipment, including all attachments, tools, and machinery rented from Sunstate, free of all regulated substances including, but not limited to, hazardous substances, hazardous materials, hazardous wastes, toxic substances, or pesticides, as those terms are defined in applicable federal, state, and local environmental laws, regulations, rules, to include all necessary or required permits. Customer shall indemnify and hold Sunstate harmless from and against all liabilities imposed on, incurred by, or served against Sunstate in any way relating to Customer’s breach of the above warranty.

LOST OR DAMAGED EQUIPMENT: Customer is responsible for all damage, excessive wear and tear, loss, or theft of Equipment up to the fair market value or cost of repair, including rental on the Equipment at the regular rental rate until repairs are completed. Reasonable wear and tear shall mean the normal deterioration caused by ordinary and reasonable use on a one-shift (eight hours per day, five days per week) basis. The following shall not be deemed reasonable wear and tear: damage from lack of lubrication or maintenance, such as water and air pressures; damage from collision, overturning, or improper operation, including over-loading or exceeding the rated capacity of the Equipment; damage like dents, bending, tearing, staining, and misalignment to the Equipment; and wear resulting from use in excess of a one-shift basis. Sunstate should not be obligated to commence repair work until the Customer has paid.

DISCLAIMER OF WARRANTIES AND WAIVER OF DAMAGES: SUNSTATE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE EQUIPMENT’S MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Customer’s sole remedy for any failure of or defect in the Equipment shall be the termination of the rental charges at the time of failure, provided Sunstate is notified immediately and the Equipment is returned to Sunstate within 24 hours, or Sunstate is requested to perform the return. SUNSTATE SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR INJURY TO THE CUSTOMER, CUSTOMER’S EMPLOYEES, CUSTOMER’S SUBCONTRACTORS, AND CUSTOMER’S PROPERTY, INCLUDING LOST PROFITS, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, IN ANY WAY CONNECTED WITH THE OPERATION OF, USE OF, DEFECT IN, OR FAILURE OF EQUIPMENT.

BODILY INJURY/PROPERTY DAMAGE TO THIRD PARTIES: Sunstate does not provide, extend, or afford any insurance coverage to the Customer or authorized operator(s)or passengers. If valid and collectible automobile liability protection or insurance on any basis is available to the Customer or any other person and such protection satisfies the financial responsibility laws, then Sunstate will not afford liability protection. However, if Customer complies with the terms and conditions of this Agreement, and if Sunstate is determined by law to provide liability protection, such liability protection shall be limited to the minimum financial responsibility limits of the state where the vehicle is operated.

INDEMNIFY AND HOLD HARMLESS: CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS SUNSTATE AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, AND AFFILIATES COLLECTIVELY (“SUNSTATE”) FROM ANY AND ALL CLAIMS, LOSSES, COSTS, DAMAGES, AND EXPENSES OF EVERY KIND AND NATURE, INCLUDING LEGAL COSTS, FOR SICKNESS, INJURY TO, OR DEATH OF, AND TO LOSS OF OR DAMAGE TO REAL OR PERSONAL PROPERTY OF, ANY EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, SUPPLIER, REPRESENTATIVE, AGENT, OFFICER, DIRECTOR, MEMBER, SHAREHOLDER, OR GUEST OF CUSTOMER OR ITS AFFILIATES (“CUSTOMER”) OR ANY THIRD PARTY ARISING OUT OF CUSTOMER’S POSSESSION, OPERATION, USE, MAINTENANCE, OR RETURN OF THE EQUIPMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THIS INDEMNITY SHALL BE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE(S) THEREOF, INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, COMPARATIVE, CONTRIBUTORY, ACTIVE, OR PASSIVE), STRICT LIABILITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, VIOLATION OF STATUTE, OR OTHER FAULT OF SUNSTATE, AND WHETHER OR NOT CAUSED BY A PRE-EXISTING OR DEFECTIVE CONDITION OF THE EQUIPMENT. Customer shall notify Sunstate immediately if the Equipment is involved in, or a part of, an accident and shall furnish Sunstate with a complete report of any accident involving Equipment, including names and addresses of all persons involved and all witnesses. Customer is responsible for all damage, injuries, or loss arising from any accident or act of any and every nature whatsoever relating to the possession or use of the rented Equipment, including, but not limited to, any damage caused by the failure of any device or material used in hitching the Equipment to a towing vehicle, regardless of who furnished and regardless of who hitched the Equipment. If any covenant is deemed unreasonable, arbitrary, unenforceable, or against public policy, such covenant will be considered divisible for the scope of Customer’s indemnification obligations. Such lesser scope, as a court of competent jurisdiction may determine, will be effective, binding, and enforceable.

FAILURE TO DELIVER: CUSTOMER RELEASES AND DISCHARGES SUNSTATE FROM ANY AND ALL LIABILITY OR DAMAGES (INCLUDING CONSEQUENTIAL AND SPECIAL DAMAGES) WHICH MIGHT BE CAUSED BY SUNSTATE’S FAILURE OR INABILITY TO DELIVER ANY EQUIPMENT BY ANY SPECIFIED DATE OR TIME INCLUDING LOADING AND UNLOADING OF EQUIPMENT.

DAMAGE WAIVER. This Damage Waiver IS NOT INSURANCE. Provided that the Customer accepts and pays the appropriate Damage Waiver fee and takes reasonable precautions to protect the equipment, Customer can limit Customer’s responsibility to Sunstate for physical damage to or theft of the equipment during the rental period. Damage Waiver does not cover liability losses, both General Liability and Auto Liability. It is the Customer’s responsibility to maintain Commercial General Liability insurance covering all operations and contractual obligations.

Under this Damage Waiver, Customer’s liability to Sunstate is limited to $500.

Customer agrees and acknowledges that this Damage Waiver is inapplicable to the following risks, which the Customer expressly assumes:

A. Loss or damage resulting from improper use, lack of a trained or qualified operator, abuse, negligence, intentional damage, or any other failure to operate the Equipment properly.

B. Loss or damage from overloading or exceeding the equipment’s rated capacity.

C. Loss due to disappearance or shortage disclosed on inventory.

D. Loss or damage by conversion of Customer, their employees, or persons to whom the Equipment is entrusted.

E. Failure to file a police report within 48 hours.

F. Tires and tire damage.

G. Customer failure to secure and protect the Equipment while on rent (best efforts to secure and safeguard include fences, locked storage containers or buildings, security guards, tire boots, hitch locks, chains, padlocks, etc.)

H. Use of the Equipment in violation of any of these terms of this Agreement.

Customer will be charged the Damage Waiver fee upfront unless Customer provides evidence of insurance satisfactory to Sunstate for physical damage to and loss of rented Equipment, in an amount sufficient to cover the fair market value of each item of rented Equipment, with the per-item limit specified, and naming Sunstate as loss payee. Customer shall provide a certificate of insurance to Sunstate, evidencing this insurance coverage and the insurance coverages set forth under INSURANCE, and specifying that insurance coverage will not be canceled without 30 days’ prior written notice to Sunstate.

Finally, this Damage Waiver does not cover liability losses such as General and Auto Liability. Customer is responsible for obtaining and maintaining insurance covering all operations and contractual obligations as outlined under INSURANCE.

INSURANCE:

(a) General Liability: Customer shall maintain Commercial General Liability insurance covering all operations and contractual obligations (including the indemnity obligation outlined under INDEMNIFICATION AND HOLD HARMLESS) with minimum limits of $1,000,000 per occurrence, $2,000,000 general aggregate, and $2,000,000 products and completed operations aggregate, and shall name Sunstate as additional insured thereon with a waiver of subrogation.

(b) Customer agrees to obtain, maintain, and pay for such worker’s compensation and employer’s liability as required by law. Customer shall have a liability limit of at least $1,000,000 Policy Limit Accident/$1,000,000 Policy Limit Disease/$1,000,000 each Employee Disease. The policy must provide a waiver of subrogation provision for Sunstate and shall be primary insurance for any insurance carried by Sunstate. Customer shall provide coverage for Sunstate for any losses, claims, accidents, or occurrences arising from Customer’s use of the equipment, including for claims of negligence or other wrongdoing on behalf of Sunstate. The parties to this Agreement agree that this is not a construction contract.

(c) Customer shall maintain Commercial Automobile Liability Insurance with limits of at least $1,000,000 per occurrence and shall include coverage for any auto and all owned, scheduled, hired, and non-owned vehicles, including trailers to cover liability and physical damage with coverage for the total replacement value of the vehicle being rented when renting a licensed, registered (over the road) vehicle. The Customer’s insurance shall be primary and include a waiver of subrogation against Sunstate. It shall list Sunstate as a loss payee and additional insured.

(d) Subcontractor: Any subcontractor hired by Customer must comply with these insurance requirements.

(e) Insurance companies shall write all policies required herein with a rating of A.M. Bests of at least “A-“ and a financial size category of at least VII.

(f) Customer’s policy shall also contain a cross liability/severability of interests provision assuring that the acts of one insured do not affect the applicability of coverage to another insured.

SUBLETTING AND LOCATION: No item of rented Equipment shall be sublet, assigned, re-rented, loaned, or removed from the location at which Customer represented it was intended to be used or removed from the State of Sunstate’s premises from where the Equipment was rented, except by written consent of Sunstate. This Agreement shall inure to the benefit of and be binding upon the parties, their heirs, successors, and assigns.

RETAKING OF EQUIPMENT: If the Equipment is not returned at the termination of the rental or for any reason it becomes necessary for Sunstate to retake the Equipment to protect the Equipment or Sunstate from loss or damage, Sunstate and its agents may enter Customer’s property and repossess the Equipment, without notice and legal process, and Customer waives all rights to a prior judicial hearing. Sunstate and its agents may take all action reasonably necessary to retake the Equipment, and Customer waives for himself, agents, and employees all claims for damages and losses, physical and financial, caused by Sunstate retaking the Equipment. Customer agrees to pay all costs and expenses incurred by Sunstate in retaking the Equipment.

COMPLIANCE WITH LAW AND SAFETY REGULATIONS: As Sunstate has no control over the use of the Equipment by Customer, Customer agrees at its sole expense to comply with all laws and regulations, including the Occupational Safety and Health Administration Act of 1970 (OSHA) and all other Federal, State and Local laws, regulations, and ordinances, which may affect the Equipment, or the operation thereof, while it is in the possession of Customer. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD SUNSTATE HARMLESS FROM ANY LIABILITY OR EXPENSE, INCLUDING ATTORNEY FEES, RESULTING FROM ANY ACTUAL OR ASSERTED VIOLATIONS OF SUCH LAWS, REGULATIONS AND ORDINANCES.

OSHA REQUIREMENTS: Customer agrees at its sole expense to comply with all laws and regulations, including OSHA regulations (29 CFR 1926), and all other federal, state, and local laws, regulations, and ordinances that may permanently affect the Equipment. Customer’s sole responsibility is to ensure compliance with any employees, subcontractors, suppliers, and delivery entities that may enter the project site or use equipment under the Customer’s control. Sunstate reserves the right to request and receive any OSHA-related training and recordkeeping document that the Customer (including all subcontractors, suppliers, and delivery entities) is responsible for maintaining. The Customer must immediately notify Sunstate of any unsafe act and immediately take the necessary actions to resolve the situation. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SUNSTATE, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, AGENTS, AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, AND EXPENSES OF WHATSOEVER KIND AND NATURE, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES, ARISING OUT OF OR RELATING TO ANY ACTUAL OR ASSERTED VIOLATIONS OF SUCH LAWS, REGULATIONS AND ORDINANCES. To ensure compliance with Federal OSHA regulations and to see requirements, visit the OSHA website at www.OSHA.gov.

LEGAL FEES AND VENUE: Customer shall pay Sunstate’s reasonable legal fees, court costs, and agency fees incurred in enforcing the terms and conditions of this Agreement, hereof, if Sunstate prevails in such action. Customer agrees that this Agreement is to be construed under the laws of the State of Arizona and that if legal action is brought to enforce this Agreement, Maricopa County, Arizona, shall be the jurisdiction and legal venue for said action, provided that Sunstate reserves and Customer agrees to Sunstate’s right to bring legal action in whatever jurisdiction from which the Equipment was rented, whose laws, at the option of Sunstate, shall govern this Agreement. CUSTOMER WAIVES THE RIGHT TO A JURY TRIAL OF ANY OR ALL CLAIMS OR DISPUTES THAT MAY ARISE FROM THIS AGREEMENT.

LIABILITY WAIVER: If Sunstate agrees to assist the Customer with the installation of any Equipment or provide training as part of this Agreement, Customer hereby waives and releases all claims for damages against Sunstate arising out of or related to such activities. Customer expressly acknowledges that Sunstate has no obligation to and is not responsible for investigating the worksite conditions, perform any soil or other tests to determine the suitability of the soil conditions or for any other reason, or to make any calculations, analysis, or recommendations regarding the proper Equipment, shoring supports, and specifications to be used.

TAXES AND FEES: Customer shall reimburse Sunstate for any additional fees, charges, or taxes sought to be imposed against Sunstate by any municipal or local subdivision relating to the rental or use of the Equipment by Customer as provided herein. Additional fees, such as estimated personal property tax and environmental reimbursement fees, may apply. These fees are subject to change at any time.

AUTHORITY TO SIGN: Any individual signing this Agreement represents and warrants that they are of legal age and have the authority and power to sign this Agreement for the Customer.

ENTIRE AGREEMENT: This Agreement constitutes the complete and entire Agreement concerning the subject matter thereof. It may not be amended except by a written agreement signed by both parties. Customer acknowledges that Customer has read, understands, and agrees to these Terms and Conditions, including, where applicable, the Trench Safety Guideline Packet and WARNING SHEETS located at www.sunstateequip.com/legal/terms-of-rental.