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TOGGLE PRODUCTION SOLUTIONS LLC EQUIPMENT USE AGREEMENT

 

NO AGREEMENT FOR EQUIPMENT RENTAL OR USE (AS MORE THOROUGHLY DETAILED HEREINBELOW) SHALL INCLUDE LABOR UNLESS OTHERWISE STATED ON ANY ESTIMATE OR INVOICE.

 

EQUIPMENT RENTED FROM TPS SHALL REQUIRE AN AUTHORIZED AND APPROVED OPERATOR, SUBJECT TO THE APPROVAL OF TPS.

 

THIS IS A BINDING LEGAL AGREEMENT; PLEASE READ CAREFULLY. YOU ARE LIABLE FOR TOGGLE PRODUCTION SOLUTIONS LLC (“TPS”) EQUIPMENT (AS DESCRIBED HEREIN), FROM THE TIME USER TAKES POSSESSION, OR THE TIME IT LEAVES TPS’S FACILITY (WHICHEVER COMES FIRST), UNTIL THE TIME IT IS RETURNED AND ACCEPTED BY TPS. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED FOR ANY EQUIPMENT LEASE OR RENTAL AND/OR DEMONSTRATION (HEREINAFTER, COLLECTIVELY, “EQUIPMENT USE” OR “USE”) WHERE USER, WHICH FOR PURPOSES OF THIS AGREEMENT SHALL ALSO INCLUDE ANY PRODUCTION OR ENTITY THAT UTILIZES SUCH EQUIPMENT, TAKES POSSESSION OR CONTROL OF EQUIPEMENT.

THIS AGREEMENT MAY BE MODIFIED OR AMENDED AT ANY TIME BY TOGGLE PRODUCTION SOLUTIONS, WITHOUT NOTICE.

For purposes of this Agreement, the following terms shall be defined as follows:

'User' shall be defined as any individual or entity that engages TPS for any equipment rental or usage;

'Possession' shall be defined as a User being presented or delivered equipment per agreement for usage.

1. Engagement. User, which shall be defined as any person or entity that leases, rents, takes possession for demonstration purposes, or otherwise utilizes the Equipment detailed in any User estimate, lease or rental, or request for demonstration (hereinafter, collectively, “Engagement Document”), or for any other purpose by which User takes possession of TPS Equipment, agrees to engage TPS to supply certain Equipment as more fully set forth in any Engagement Document, which shall be considered a part of this Agreement. User shall compensate TPS as-according to the Engagement Document.
2. Indemnity. User hereby agrees to defend, indemnify, and hold TPS, including but not limited to its parent company(ies), subsidiary(ies), agents and affiliated companies and their owners, officers, and employees (harmless from and against any and all claims, actions, causes of action, demands, rights, damages of any kind, costs, loss of profit, expenses and compensation whatsoever including Court costs and reasonable attorney fees (hereinafter, individually and collectively, and without limitation, “Claims”), in any way arising from, or in connection with, the Equipment use, including, without limitation, as a result of its use, claim of inadequacy of the Equipment as utilized, or any end-product derived therefrom, maintenance, or possession, irrespective of the cause of the Claim, including the active or passive negligence of TPS, except as the result of TPS’s sole gross negligence or willful misconduct, from the time User takes possession of the Equipment when User returns the Equipment, and such Equipment is accepted by TPS.
3. Loss of or Damage to Equipment. User is solely responsible for any and all loss, damage or destruction of the Equipment, including but not limited to, and without limitation: losses while in transit, while loading and unloading, while at any and all locations, while in storage, while on User premises, and while being used by User and/or Operator in any manner whatsoever, including damage or destruction of the Equipment caused by the active or passive negligence of TPS, except that User is not responsible for damage to or loss of the Equipment caused by TPS’s sole gross negligence or willful misconduct. User is also responsible for actual and verifiable loss of use and User shall fully compensate TPS for the loss of use of the Equipment during the time it is being repaired or replaced, as may be applicable.
4. Equipment in Working Order. TPS has tested the Equipment in accordance with reasonable industry standards and found it to be in working order according to its specifications immediately prior to the inception of this Agreement. Other than what is set forth herein, User acknowledges that the Equipment is made available to User without warranty, or guarantee, except as required by law or otherwise specifically agreed upon in writing by the parties at the inception of this Agreement.

TPS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTE, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

TPS’s sole obligation and liability to Client in the event of any malfunction or failure of the Equipment solely caused by TPS shall be to repair the Equipment or provide Client with the same or similar Equipment.

5. Property Insurance. User shall, at User’s own expense, maintain at all times during the term of this Agreement, all risk perils property insurance (“Property Insurance”), covering the Equipment from all sources (including but not limited to Equipment Rental Floater or Production Package Policy insurance) including coverage for, without limitation, (i) theft by force (ii) theft by fraudulent scheme and/or “voluntary parting” (iii) mysterious disappearance (iv) theft from unattended vehicles (v) loss of use of the Equipment, from the time the Equipment is received by User or a shipper at TPS’s business or placed upon a common carrier for forwarding to User, as applicable,  until the Equipment is returned to and accepted by TPS. Policies with locked vehicle warranties, unattended vehicle exclusions or any other limitations on theft from vehicles are not acceptable.  The Property Insurance shall be on a worldwide basis and name TPS as the loss payee with respect to the Equipment and shall cover all risks of loss of, or damage or destruction to, the Equipment. The Property Insurance coverage shall be sufficient to cover the Equipment at its replacement value but shall, in no event, be less than ONE MILLION US DOLLARS ($1,000,000 USD). The Property Insurance shall be primary coverage over TPS’s insurance. User shall hold TPS harmless from, and shall bear the expense of, any applicable deductible amounts and self-insured retentions provided for by any of the insurance policies required to be maintained under this Agreement. In the event of loss, User shall promptly pay amount of the deductible amount or self-insured retention or the applicable portion thereof to TPS or the insurance carrier, as applicable. Notwithstanding anything to the contrary contained in this Agreement, the fact that a loss may not be covered by insurance provided by User under this Agreement or, if covered, is subject to deductibles, retentions, conditions or limitations shall not affect User’s liability for any loss. Should User fail to procure or pay the cost of maintaining in force the insurance specified herein, or to provide TPS upon request with satisfactory evidence of the insurance, TPS may, but shall not be obliged to, procure the insurance and User shall reimburse TPS on demand for its costs. Lapse or cancellation of the required insurance shall be deemed to be an immediate and automatic default of this Agreement. The grant by User of a sublease of the Equipment used shall not affect User’s obligation to procure insurance on TPS’s behalf and/or to TPS’s benefit, or otherwise affect User’s obligations under this Agreement. All insurance maintained by User pursuant to the foregoing provisions shall contain a waiver of subrogation rights with respect to any liability imposed by this Agreement on User as against TPS. User and User’s insurance company shall provide TPS with not less than THIRTY (30) days written notice prior to the effective date of any cancellation or material change to any insurance maintained by User pursuant to the foregoing provisions, and for this Agreement, generally.
6. Subrogation. User hereby agrees that TPS shall be subrogated to any recovery rights User may have for any loss, damage, or any other event or instance where the value, including revenue value, of the Equipment is impaired or otherwise negatively impacted.
7. Certificates of Insurance. Prior to the taking possession of the Equipment, User shall provide to TPS Certificates of Insurance (hereinafter “CoI”) confirming the coverages specified above, and in a format acceptable to TPS. TPS has the sole and absolute right to refuse to offer Equipment should the CoI provided not substantially and materially conform to the requirements detailed herein.
8. Equipment Operators. Any and all Operators of the Equipment shall be duly experienced, trained and qualified to operate Equipment of this type. User must supply and employ any Operator who operates the Equipment (even if the Operator is the owner of the Equipment or owner of a company that owns the Equipment) and that Operator shall be deemed to be User’s employee and acting under User’s supervision or control for all purposes and shall be covered as an insured on all of User’s applicable insurance policies.
9. Compliance with Law and Regulations. User agrees to comply with the laws of all states in which the Equipment is transported and/or used as well as all federal and local laws, including workers compensation insurance (if applicable), regulations, and ordinances pertaining to the transportation and use of such Equipment.   User shall indemnify and hold TPS harmless from and against any and all fines, levies, penalties, taxes and seizures by any governmental authority in connection with or as a result of User’s possession or use of the Equipment including, without limitation, the full replacement value of the Equipment in the event of seizure or impound, including but not limited to TPS’s costs, loss of use of Equipment revenue, and attorney fees.
10. Valuation of Loss/TPS’s Limited Liability. Unless otherwise agreed in writing, User shall be responsible to TPS for the replacement cost value or repair cost of the Equipment (if the Equipment can be restored, by repair, to its pre-loss condition) whichever is less. If there is a reason to believe a theft has occurred, User shall file a police report. Loss of use shall be calculated at the rate provided for in this Agreement. Accrued use charges shall not be applied against the purchase price or cost of repair of the lost, stolen or damaged Equipment.   In the event of loss for which TPS is responsible, TPS’s liability shall be limited to the contract price and TPS shall, in no event, be liable for, and expressly by this provision contractually refutes any consequential, special or incidental damages, or any damages of any other kind, what-so-ever, for which User expressly understands and agrees.
11. Bailment. This Agreement constitutes an Agreement or bailment of the Equipment and is not intended to, nor does it create in whole or in part, a sale or the creation of a security interest in the Equipment. User will not have, or at any time acquire, any right, title, or interest in the Equipment, except the right to possession and use as provided for in this Agreement.  TPS shall, at all times, be the sole owner of the Equipment.
12. Condition of Equipment. User assumes all obligation and liability with respect to the possession of Equipment, and for its use, condition and storage during the term of this Agreement except as otherwise set forth herein. User shall, at User’s sole expense, maintain the Equipment in good mechanical condition and running order. User shall not remove, obscure, or deface any indication of ownership affixed to any Equipment. The charges on any of the Equipment will not be prorated or abated while the Equipment is being serviced or repaired for any reason for which User has possession of the Equipment.  TPS shall not be under any liability or obligation in any manner to provide service, maintenance, repairs, or parts for the Equipment, except as otherwise specially agreed by TPS in writing.  All installations, replacements, and substitutions of parts or accessories with respect to any of the Equipment will become part of the Equipment and will be owned by TPS, provided however, that User has an affirmative obligation to notify TPS of any damage or repairs it is contemplating, and TPS has the sole and exclusive right to authorize such repairs, or prohibit same.  Should any repairs result, in TPS’s sole discretion, in substandard parts being utilized in any repair, or in any way impact the value of the Equipment, User shall be solely liable to TPS for the cost of any corrective action, including parts and loss of revenue, so that TPS may return the Equipment to proper operational status.
13. Accident Reports. If any of the Equipment is damaged, lost stolen, or destroyed, or if any person is injured or dies, or if any property is damaged as a result of its use, maintenance, or possession, User shall promptly notify TPS of the occurrence, and will file all necessary accident reports, including those required by law and those required applicable insurers. User, User’s employees, and agents will cooperate fully with TPS, and all insurers providing insurance under this Agreement, in the investigation and defense of any Claim.  User shall promptly deliver to TPS any and all documents served or delivered to User, User’s employees, or User’s agents in connection with any Claim or proceeding at law or in equity begun or threatened against User, TPS, or both User and TPS.
14. Default. If User fails to pay any portion or installment of the total charges payable hereunder or User otherwise materially breaches this Agreement, then such failure or breach shall constitute a default (hereinafter, “Default”).  Upon the occurrence of any such Default, and in addition to all other rights and remedies available at law or in equity, and not as a restriction on any other actions lawfully permissible, TPS shall have the right, at TPS’s option, to terminate this Agreement and cease performance hereunder. User further agree that the continuation of TPS’s performance hereunder after a Default shall not constitute a waiver or operate as any form of estoppel with respect to TPS’s later assertion of TPS’s right(s) to cease such performance at any time so long as such Default has not been cured.In the event that any suit or action is instituted to enforce any provision in this Agreement, including but not limited to recovery on any invoice or amounts owing to TPS, the prevailing party in such dispute shall be entitled to recover, in addition to any amounts awarded, all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys fees, expert fees, and any costs of bringing suit or action, including but not limited to service of process, and shall include, without limitation, all fees, costs and expenses of appeal.
15. Return. Upon the expiration date of this Agreement with respect to any or all Equipment, User will return the property to TPS, together with all accessories and any other items that were included with the Equipment, free from all damage and in working order, in the same condition and appearance as when received by User.
16. Additional Equipment. Additional Equipment may from time to time be added as the subject matter of this Agreement as agreed on by the Parties. Any additional property will be added in an amendment describing the property, the rate, any security deposit, and stipulated loss value of the additional Equipment. All amendments must be in writing and signed by both Parties.
17. Entire Agreement; Modification. The Agreement, along with the Engagement Document(s) hereby incorporated by this reference, constitutes the entire and exclusive statement by the Parties of the terms of their agreement, notwithstanding any additional or different terms that may be contained in any other document, acknowledgment, confirmation, or other form of either Party.  All prior and contemporaneous proposals, negotiations, and representations are merged in this Agreement. All prior written agreements entered into by the Parties are hereby revoked as the Parties desire for this Agreement to control all contemporaneous and future business interactions. These terms of the Agreement may not be altered, modified, superseded, amended or rescinded, and no additional terms shall become a part of the Agreement, except pursuant to a writing specifically referencing the Agreement and signed by a representative of the Party against whom enforcement is sought.
18. Force Majeure. In the event that performance by either party of its obligations under this Agreement is prevented due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, zombie apocalypse, action by a government or governmental agency that precludes performance under this Agreement, or any other cause beyond the reasonable control of the Party invoking this section, and if such Party shall give prompt written notice to the other Party, its performance shall be excused, and the time or the performance shall be extended for the period of delay or inability to perform due to such occurrences.
19. Severability. In the event that one or more of the provisions, or parts thereof, contained in the Agreement shall for any reason be held to be invalid, illegal, or unenforceable by a Court of competent jurisdiction, the same shall not invalidate or otherwise affect any other provision in the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained therein.
20. Governing Law; Interpretation. This Agreement shall be governed by and construed in accordance with, and any action brought shall be governed by the laws of the State of California, County of Ventura, for contracts performed wholly within, without resort to its choice of law provisions. Acceptance or acquiescence in a course of performance rendered under the Agreement shall not be relevant to determining the meaning of the Agreement, even though the accepting or acquiescing party had knowledge of the nature of the performance and an opportunity for objection. No course of prior dealing between the parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement.