I. THE FOLLOWING TERMS AND CONDITIONS APPLY TO BOTH SALES AND LEASES
1. Logan Contractors Supply, Inc. retains title to all goods sold herein until such times as all payments for the goods have been received by it in collected funds at its corporate offices, at which time title to such goods shall automatically pass to the purchaser identified herein.
2. Logan Contractors Supply, Inc. (“Logans”) shall not be liable for any damages or delays, for any reason whatsoever, in delivering any goods sold or leased hereby to Customers, together with all replacements (hereinafter collectively, “Equipment”) Customer must, in writing, make claim for any claimed shortages wit!1in 1O days after receipt of the Equipment hereunder or be forever barred therefrom. The acceptance of this Equipment by Customer of making any use thereof without written objection to Logans, constitutes acknowledgment by Customer that this is a valid and binding contract, that Customer has inspected said Equipment, and that such Equipment is in good condition and is safe serviceable and fit for all purposes that Customer intends to use the Equipment.
3. LOGANS IS NOT A MANUFACTURER AND THUS GIVES NO WARRANTY WHATSOEVER AND SPECIFICALLY DISCLAIMS ANY WARRANTY BY IT, EXPRESS OR IMPLIED, STATUTORY, BY OPERATION OR LAW OR OTHERWISE, INCLUDING MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. THE ONLY WARRANTY ON ANY ITEM OF EQUIPMENT SOLD OR LEASED HEREUNDER IS THE EXPRESS WARRANTY, IF ANY, GIVEN BY THE MANUFACTURER AND CUSTOMER EXPRESSLY AGREES THAT THE SOLE AND EXCLUSIVE RIGHT AND REMEDY OF CUSTOMER IS LIMITED TO AN ACTION OR CLAIM AGAINST THE MANUFACTURER OF THE EQUIPMENT. CUSTOMER AGREES THAT IT HAS NO RIGHT ON REMEDY AGAINST LOGANS, INCLUDING BUT NOT LIMITED TO, CLAIMS FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR ANY CAUSE, LOSS, ACTION, CLAIM OR DAMAGE WHATSOEVER, OR INJURY TO PERSON OR ANY OTHER CONSEQUENTIAL, ECONOMIC OR INCIDENTAL LOSS ARISING OUT OF, OR RELATED IN ANY WAY TO, ANY ITEM OF EQUIPMENT SOLD OR LEASED HEREUNDER.
4. If Customer fails to pay any sums when due or fails to perform any term or condition hereof or if Customer shall become bankrupt or insolvent or a receiver is appointed as to Customer’s property, then Logans shall have the right to; (a) recover from Customer all sums due and to become due hereunder, together with all damages and expenses, including attorney’s fees incurred by Logans in pursuing its remedies hereunder, and (b) enter the premises where the Equipment is located and take possession of ii with or without legal process, and remove said Equipment therefrom. Customer agrees to protect, defend indemnify and hold Logans harmless with respect to any damage occasioned by any such entry, repossession or removal and to pay all damages, including costs and attorney’s fees so incurred by Logans. Customer hereby expressly waives any notice of repossession, replevin or any other sent to recover possession of the Equipment and hereby consents to the immediate order by any court, without hearing for replevin and delivery of possession of the Equipment to Logans.
5. Logans may sell the goods which are repossessed after sending Customer prior written notice of the time and place of any such sale. The deficiency for which Customer shall be liable shall be determined after applying the proceeds of such sale of the Equipment first to the expenses of the taking, preparing for sale. and the selling of the Equipment, including all attorney’s fees and legal expenses incurred in connection therewith, and then to the satisfaction of any debt of the Customer to Logans. Logans shall also have all the rights and remedies of a secured party under all applicable laws, including the Uniform Commercial Code.
6. After the delivery of the Equipment to any carrier, all risk of damage to the Equipment shall be borne by Customer.
7. This Agreement may not be amended in any way except in writing and signed by a representative of Logans. This Agreement shall be governed by tl1e laws of the State of Iowa. Any provisions hereof which may prove to be unenforceable shall not affect the validity of any other provision hereof. The failure of Logans to insist on the performance of any of these terms or conditions, or to delay exercising any right hereunder, or its waiver of any breaches hereunder, shall not be deemed a permanent or continuing waiver of any such term, condition or right of Logans under this Agreement to enforce any of its rights.
8. In order to be valid any notice sent to Logans shall be in writing and must be received by Logans at its office shown on the reverse side. Any notice
·- to Customer shall be deemed received when a facsimile is sent to Customer or 3 days after rendering same to a postal service addressed to Customer at the address on the reverse side hereof.
g_ Customer shall pay before due all licenses, taxes and assessments with respect to the Equipment and any transfer of possession or use thereof. It
.-. Logans shall pay any such licenses, taxes or assessments. Customer shall promptly reimburse Logans therefor.
10. Customer shall pay Logans when due ail amounts charged as shown on the reverse side hereof. A service charge of 1 1/2% per monthly may be added to all late payments. Notwithstanding possession and use thereof by Customer, title to, and right to possession of, the Equipment shall remain in Logans until it has been paid in full all sums due and owing it.
' Ii. THE FOLLOWING TERMS AND CONDITIONS ALSO APPLY TO LEASES OF EQUIPMENT
11. Customer covenants and agrees at its own expense to (a) grease, oil, repair and maintain the Equipment in good operating condition and return the Equipment in as good condition as when received, less ordinary wear and tear and free of all contamination and hazardous substances; (b) use the Equipment only within its capacity and pursuant to all applicable laws, rules and regulations, and only by persons employed by it who are trained and qualmed to do so; (c) protect, defend, indemnity, and hold Logans harmless from and against any claims, liability, personal injury, damage and expense in any manner connected with the Equipment, including its maintenance, use storage, operation, transportation, or repair, and including personal injury to the operator of the Equipment. Customer agrees to keep in force policies insuring Logans against al! such liability, cost and expense in limits not less the $250,000/$500,000 for injury to any one person and for any one accident and not less than $250,000 for damage or destruction to property; (d) keep the Equipment constantly insured for the full value shown on the reverse side hereof against damage from any cause whatsoever by a policy providing that all proceeds of the insurance on the Equipment shall be payable to Logans; and (e) furnish Logans certificates on each required policy and naming Logans as an additional insured thereunder providing that each policy may not be cancelled without 30 days prior written notice to Logans.
12. II the Waiver of Loss and Damage provision is accepted by Customer on the face hereof and Customer pay Logans the Waiver Fee equal to ten percent (10%) of the gross totai rental charges for the Equipment so leased, Logans waives its rights to recover from the Customer the amount of damage to the Equipment (excluding highway vehicles and supply items) which exceeds the rental charges for the affected Equipment for one month. Notwithstanding
- the foregoing, the rights oi Logans to recover are not waived as to any loss or damage occurred under or due to; (a) dishonesty of the Customer, its employees or agents; (b) conversion by an11 person of the Equipment; (c) disappearance, theft or vandalism of the Equipment under circumstances where Customer does not promptly file with the appropriate policing authorities a full and formal written repo1i of such incident; (d) use or operation of Equipment or in violation of this Agreement; (e) failure to perform timely all maintenance and service to the Equipment; (f) overloading or exceeding the rated capacity of the Equipment, including a boom; and (g) gross negligence, or deliberated damage to the Equipment.
13. In the event of any loss or damage to the Equipment, Logans si1all be subrogated to, and shall have all of, the rights of Customer to recover against all persons causing, or contribution to, or insuring against, such loss or damage. Customer agrees to execute all documents requested by Logans and do whatever else is necessary to secure such rights to Logans and cooperate fully with Logans in the prosecution of these rights·. Customer will not take any action which will in any way prejudice the rights of Logans.
14. No option to purchase or other Agreement shall be construed as a conditional sales contract, all rights as to conditional sales are hereby waived. Customer shall give Logans immediate notice if any of the Equipment is subject to seizure or any other event occurs which adversely affects the Equipment or Logans rights thereto.
15. The rental period for the Equipment shall only end when it is received by Logans in the condition required by paragraph 1O hereof.
16. If the Equipment is operated more than 8 hours per day, 40 hours per week, or 160 hours in any 4 week period. Customer shall pay such overtime at each billing period. There sha.li be no deduction or credit for rentals due to non-working time of the Equipment.
17. Customer shall not remove· or alter safety instructions, warning notices, numbering, lettering, or insignia of Logans from.the. Equipment, or affix anything thereto, without Logans' prior written consent. ·