CUSTOMER agrees to pay One Source Cooling the rates set forth in the order attached hereto. Payment for equipment is payable before the delivery of the Equipment to the CUSTOMER or its agent or carrier. If any payment is not tendered when due, CUSTOMER agrees to pay a late charge from the date such payment becomes due of one and one-half percent (1.5%) per month, or the highest legally permitted rate, whichever is less, on any balance past due, together with all costs (including, but not limited to, attorneys´ fees) incurred by One Source Cooling to collect overdue amounts.
LOADING AND TRANSPORTATION:
The CUSTOMER shall be responsible for cost of the transporting the Equipment to the CUSTOMER´s receiving point and shall unload the Equipment upon its return to One Source Cooling´ receiving point, and shall pay all demurrage charges incurred at the shipping or receiving points. The CUSTOMER shall pay all shipping expenses from the original point of shipment to CUSTOMER´s receiving point and all return shipping expenses to One Source Cooling´ receiving point as One Source Cooling shall designate in writing.
RECALLING AND RETURNING NOTICE:
One Source Cooling may recall any or all Equipment upon thirty (30) days written notice to the CUSTOMER and the CUSTOMER may return any or all Equipment upon like notice to One Source Cooling.
USE AND MAINTENANCE:
CUSTOMER shall not use, operate, maintain or store the Equipment improperly, carelessly, or in violation of any applicable law or regulation or for any purpose other than in the conduct of CUSTOMER´s business. CUSTOMER shall not sublease the Equipment, permit the use of the Equipment by anyone other than CUSTOMER or change the use or location of the Equipment specified in the Agreement, without the prior written consent of One Source Cooling. CUSTOMER, at its own expense, shall maintain the Equipment in good operating order, repair and condition and shall perform maintenance at least as frequently as stated in the applicable operator´s guide, service manual or maintenance guide. CUSTOMER shall not alter the Equipment or affix any necessary to it if doing so would impair its originally intended function or use or reduce its value. Any alteration or addition to the Equipment shall be the sole responsibility of and at the sole risk of the CUSTOMER.
Notwithstanding any provisions contained herein to the contrary: If the Equipment requires maintenance or repair while in CUSTOMER´s possession and (i) CUSTOMER elects to returns the Equipment to OSC, OSC may provide for the replacement of the Equipment, if available, and CUSTOMER shall be responsible for all applicable transportation costs incurred by One Source Cooling in providing such replaced Equipment; or (ii) CUSTOMER request that One Source Cooling perform the required maintenance, CUSTOMER shall be charged travel time, mileage, labor and parts associated with the such maintenance provided by One Source Cooling.
Before the Equipment is loaded for shipment to CUSTOMER´s receiving point, the CUSTOMER may require an inspection thereof by a qualified inspector. If the CUSTOMER does not inspect the Equipment before it is loaded for transit, the CUSTOMER is conclusively deemed to have accepted that the Equipment is in good running order without broken or worn out parts and in a clean and unmarred condition. One Source Cooling shall have the right at any time to enter the premises occupied by the Equipment and shall be given free access thereto and afforded necessary facilities for the purpose of inspection.
DAMAGE TO EQUIPMENT:
CUSTOMER shall be liable to One Source Cooling for all loss or damage to the Equipment in its possession.
CUSTOMER shall indemnify, defend and hole harmless One Source Cooling against any and all loss, expense, liability or penalty which may arise out of any act or omission of CUSTOMER, CUSTOMER´s employees, agents, assigns, subcontractors or any third party not employed by or under the control of One Source Cooling arising out of the operation, handling, maintenance or transportation of the Equipment.
CUSTOMER shall, at its own expense, (I) maintain public liability and property insurance to protect the CUSTOMER and One Source Cooling against damage to property or persons from the operation, handling or transportation of the said Equipment during the rental period, (ii) insure the Equipment for the loss by fire, theft, damage or other risk of loss customarily insured against on equipment such as the Equipment, (iii) maintain marine insurance on marine equipment and (iv) maintain such other insurance as may be requested by One Source Cooling. All such insurance shall be maintained in amounts satisfactory to One Source Cooling. Upon request, CUSTOMER shall provide One Source Cooling with proof of any such insurance.
TERMINATION OF THIS AGREEMENT:
Should the CUSTOMER (i) fail to make payment in accordance with the terms of this Agreement and such failure shall continue for a period of five (5) days, (ii) become bankrupt, become insolvent or make an assignment for the benefit of its creditors (iii) fail to maintain and/or operate or to return the Equipment as provided by this agreement, (iv) fail to maintain the insurance required herein, or (v) violate any material provision hereof, One Source Cooling may, after three (3) days notice in writing of such event terminate this Agreement, take possession of the Equipment wherever it may be found without becoming liable for damages or for trespass, and, in addition to any other remedies One Source Cooling may recover all rental due together with any damage for injury to the Equipment and all expenses incurred in returning and repossessing the equipment.
One Source Cooling makes no warranties, expressed or implied, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. The remedies of the customer shall be limited to those provided herein to the exclusion of any and all other remedies including, without limitation, incidental or consequential damages. No agreement varying or extending the foregoing warranties, remedies, or this limitation will be binding upon One Source Cooling unless in writing, signed by a duly authorized officer of One Source Cooling. CUSTOMER acknowledges and agrees that the Equipment rented hereunder is of a size, design and make selected by CUSTOMER and is suitable for CUSTOMER´s purposes.CUSTOMER expressly disclaims any reliance upon any statement or representations made by One Source Cooling.
TAXES AND FEES:
CUSTOMER shall pay all personal property taxes, licenses fees, and registration fees which may now or hereafter be imposed upon the possession, lease or use of the Equipment. CUSTOMER shall promptly notify One Source Cooling of the receipt of any tax notices, tax reports or inquiries or notices from taxing or other authorities concerning taxes, fees or assessments.
CUSTOMER shall comply with all laws, rules and regulations with regard to the operation of the Equipment under any local, state or Federal Air Quality Legislation.
OWNERSHIP AND ENCUMBRANCES:
Title to and ownership of the Equipment is, and shall at all times remain with One Source Cooling, and CUSTOMER shall have no right, title or interest therein, or thereto except the right of possession and use of the Equipment pursuant to the terms of the Agreement. CUSTOMER shall not remove or defect any plate or marking on the Equipment identifying One Source Cooling as the owner of the Equipment or the manufacturer´s serial number. The equipment is, and shall at all times remain personal property notwithstanding its use or manner of attachment to any other personal or real property. CUSTOMER shall keep the Equipment free and clear of any and all levies, liens, security interests and encumbrances of any kind, and shall give CUSTOMER prompt notice of any attachment or judicial process affecting the Equipment.
Under no circumstances shall One Source Cooling be held liable for any special, indirect, incidental, or consequential damages. The contract price shall be the limit on OSC liability, whether founded in contract, statute, or tort (including negligence), arising out of, or resulting from (i) this Agreement or the performance or breach thereof, (ii) the design, manufacture, delivery, sale, repair, replacement, or the use of any Equipment or (iii) the furnishing of any service.
If any provision or provisions of this Agreement shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; and all other provisions will be interpreted and deemed modified so as to be enforceable to the extent allowed by law.
GOVERNING LAW AND CIVIL ACTIONS:
This Agreement shall be governed by the laws of the State of Texas. Both parties agree that any civil action or lawsuit arising from the performance or non-performance of this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be commenced within two (2) years from the date such claim or cause of action arose.
No change, modification, amendment or waiver of any of the terms or conditions of this agreement shall be binding upon the parties unless made in writing and duly executed by both parties hereto.
This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous statements, purchase orders, agreements, and representations (except those written representations expressly incorporated in this Agreement). There are no other agreements, understandings, terms or conditions and neither party has relied upon any representation or warranty, express or implied, not contained in this Agreement.
If for any reason CUSTOMER shall fail to return to One Source Cooling signed copies of this Agreement, any conduct by CUSTOMER which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute unqualified acceptance by CUSTOMER of the terms and conditions of this Agreement. The terms of this Agreement shall constitute the complete and exclusive statement of the Agreement between the parties hereto and may be modified only by written instrument executed by the authorized representative of both parties. Any terms proposed by the CUSTOMER, including but not limited to the terms of the CUSTOMER´s purchase orders, which add to, vary from, or conflict with the terms herein are hereby objected to. This Agreement, whether used as an offer, an acceptance of an offer, or a confirmation of a contract, is conditioned on and limited to its terms. By acceptance of the equipment or services described on the face of this Agreement or by acknowledging receipt of this Agreement, CUSTOMER assents to all its terms and conditions. Any reference by One Source Cooling to CUSTOMER´s purchase order is solely for the purpose of incorporating the description and specifications of the equipment and services contained therein to the extent that such description and specifications do not conflict with the description and specifications on the face of this Agreement.