Terms & Conditions

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Credit

The applicant (“Applicant”) hereby enters into this Credit Application and Agreement (“Credit Agreement”) with Romco Equipment Co.,LLC, for the purpose of purchasing, renting equipment, or requesting service for certain products with credit.  Upon approval, the foregoing confidential credit application and sales agreement will create an account with Seller. Seller’s extension of credit to Applicant is made expressly conditional on Applicant’s agreement to the following Terms and Conditions (“Terms”). All sales of Products by Seller to Applicant shall be subject to these Terms. These Terms represents the full understanding of Seller and Applicant and supersedes all other agreements, written or oral, regarding its subject matter. TERMS THAT ARE PRINTED ON OR CONTAINED IN A PURCHASE ORDER, EQUIPMENT ORDER, OR OTHER FORM PREPARED BY APPLICANT THAT ARE ADDITIONAL TO, IN CONFLICT WITH, OR INCONSISTENT WITH THESE TERMS ARE, UNLESS EXPRESSLY AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER, REJECTED BY SELLER AND SHALL HAVE NO FORCE OR EFFECT. Applicant agrees and understands that the terms are as follows:

1. Payment Terms. Purchaser shall be liable for and shall promptly pay when due all charges set forth in the applicable invoice from Seller, including, but not limited to, the price of Products, taxes, delivery, and other charges in accordance with these Terms. Unless otherwise agreed to by the Seller in writing, invoices are payable to the Seller, at the address specified in the invoice, as follows: (a) for Products involving parts and services, net 30 days from the date of the applicable invoice; (b) for Products involving rental equipment, upon receipt of the applicable invoice; (c) and for Products involving equipment sales, payment is due upon receipt of the Product (each of the foregoing deadlines, as applicable, the “Due Date”). Payments made to Seller will be credited on the business day that the Seller receives the payment. In the event Purchaser fails to make payment in full or in part on or before the Due Date, a late charge shall be imposed on the portion of the invoice that is past due at a rate of 1.5% per month, or the highest amount permitted by law, accruing from the Due Date until paid.
2. Taxes. Applicant shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority, and all sales taxes will be invoiced unless Applicant supplies a valid tax-exempt certificate prior to delivery. Tax percentage is based on point of sale and not point of destination.
3. Returned Products. Applicant shall pay for any Products ordered that the Applicant does not take delivery of, unless a written cancellation prior to the time that Seller has commenced the production of the Products is received by Seller. Applicant shall pay for the costs incidental to Applicant’s failure to take delivery of the products without prior notice to Seller, including, but not limited to, transport fees, hauling costs, service fees, and a 15% re-stocking charge.
4. Price Escalation. Any increase in Seller’s cost of supplying the Products, including but not limited to price increases in the cost of the raw materials or price increases caused by any level of governmental law, regulation, tax or other burden imposed after the date of these Terms on the ownership, storage, processing, production, transportation, distribution, use or sale of the Products covered by these Terms will be added to the price under these Terms.
5. Credit Information. The Applicant and any applicant on the Account Agreement authorizes the Seller and/or its related entities to obtain credit information from the listed references in the Account Agreement and from any credit reporting agency, or any guarantor. The Applicant further authorizes the Seller to provide this application to third parties for the purpose of providing credit or financing to Applicant and the undersigned authorizes any actual or proposed third party financing sources to obtain credit information from the above listed references and from any credit reporting agency. The Applicant agrees to notify Seller by certified mail of any changes in ownership or form of business entity.
6. Security Interest. Applicant agrees that until Seller has received payment in full for the Products, Purchaser hereby grants to Seller, and the Seller shall retain, a perfected, first priority security interest in the (i) Products sold or leased to Purchaser, and (ii) any accounts receivable or other proceeds that arise from the sale, lease, or use of the Products or any goods manufactured from the Products, all pursuant to the Uniform Commercial Code as enacted in the State of Texas (as amended from time to time, the “UCC”). In the event of default by Purchaser under the applicable purchase order, Seller shall have all the rights and remedies of a secured creditor under the UCC. Purchaser authorizes Seller to file such financing statement, including but not limited to UCC-1s and UCC-3s, and other documents as Seller deems necessary in order to perfect Seller’s security interest in the Products and any accounts receivable or other proceeds thereof.
7. Risk of Loss. Title to and risk of loss of the Products purchased hereunder shall pass to Purchaser upon delivery to Purchaser’s carrier at Seller’s designated facility or, if the parties agree that the Products shall be transported by Seller, upon delivery by Seller to Purchaser’s address as designated above. Purchaser acknowledges that it is responsible for obtaining and maintaining appropriate insurance coverage for the Products from the time of delivery, including coverage for any risks associated with transportation, installation, or storage of the Products or equipment.
8. Responsibility for Equipment. The Applicant acknowledges and agrees that, Applicant will be responsible for the care, maintenance, and safekeeping of the equipment or Products for the entire duration of the Account Agreement or Rental Agreement. Applicant shall be liable for any damages caused to the Products, whether through negligence, misuse, or any other cause, during the duration of the Account Agreement or Rental Agreement; this includes, but is not limited to, any repairs or replacement costs required to restore the Products or equipment to their original condition. In the event of Product damage, equipment damage, or malfunction, the Applicant shall immediately notify Seller in writing and cease using the equipment or Products until further instructions are provided by Seller. Seller reserves the right to assess the extent of damage and determine the appropriate course of action, which may include repairing, replacing, or billing the Applicant for the cost of repairs or replacement. In the case of Product or equipment damage or repair costs, Seller will invoice Applicant for the full amount due. Applicant agrees to pay the invoiced amount within the time specified in the invoice.
9. Location of Products or Equipment. Applicant shall promptly inform the Seller of the initial location of each piece of equipment upon delivery, and thereafter, shall provide the Seller with written notice of any change in the location of the equipment within 5 business days of such change. Applicant shall not relocate the equipment or Products outside the State of Texas without prior written consent from Seller. Seller reserves the right to request information about the current location of the equipment or any Products at any time. The Applicant shall promptly provide the Seller with the location of each piece of equipment within 5 business days of receiving such a request. Failure by Applicant to inform Seller of the initial equipment location, notify of location changes, or promptly respond to location requests as specified in this provision may be considered a material breach of the Rental Agreement or a security agreement between the Purchaser and Seller, and the Seller may take appropriate actions as provided for in these Terms, the Rental Agreement, the security agreement, and/or applicable law.
10. Delivery. The Applicant and all its guarantors (if any) are responsible for all hauling costs of Products, including rented equipment and equipment purchased on credit, including fuel. The time of delivery of the Products is conditioned upon Seller’s ability to obtain Applicant’s Products and other Products ordered in advance of Applicant’s Products and delays due to any Force Majeure Event. “Force Majeure Event(s)” shall include, without limitation, (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) health epidemics or pandemics, quarantine, or public health measurers, (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (e) actions, embargoes or blockades in effect on or after the date of these Terms; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the control of the Seller. Failure by Applicant to make payment of any sum when that payment is due shall not be excused by an underlying Force Majeure Event. Delays in delivery of any of the Products not due to Seller’s willful act shall not constitute a default under any Rental Agreement, purchase order, equipment purchase agreement, or any related agreement.
11. Insurance upon Lease of Equipment or Products. Applicant shall at its own cost and expense, obtain and maintain the insurance policies specified as, including but not limited to, (a) general commercial liability insurance against claims for bodily injury, death and property damage with limits of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) general aggregate, to cover any liability caused by or arising out of activities of Applicant and Applicant’s employees with respect to the equipment; and (b) property insurance against all risk or physical loss or damage to the equipment with limits of not less than one hundred percent (100%) of the insured value of the equipment (as specified in the appropriate schedule). All such policies of insurance shall name ROMCO Equipment Co., LLC as an additional insured, shall be in such form and with such carriers as are reasonably acceptable to Seller and shall provide that they may not be canceled as to Seller or altered to lessen the coverage of Seller, without at least 30 days’ prior written notice to Seller. All such insurance shall be primary, without right of contribution from any other insurance carried by Seller and shall provide that all proceeds are to be payable solely to Seller. Applicant represents that it has workers’ compensation insurance in the amounts required by law. Applicant will furnish proof of all such insurance to Seller upon Seller’s request. For rental equipment, the option to purchase a damage waiver as specified in the Schedule and if purchased, Seller agrees to waive the right to collect from Applicant for damages or loss to the Equipment up to the percentage of the Insured value specified in the Schedule; provided, however, that the damages waiver is not effective with respect to, and will not reduce Applicant’s responsibility for, any damage or losses resulting from Lessee’s intentional, willful, or reckless conduct.
12. Disputes; Applicable Law; Venue. In the event of a dispute, Purchaser must provide Seller written notice of any dispute within 30 days of the incident that is the basis for such dispute, otherwise, Purchaser waives all rights for such dispute. This Agreement (defined herein), the Account Agreement, these Terms, as well as any invoices issued by Seller are performable in Dallas County, Texas. The Purchaser and all its guarantors (if any) agree that if any proceeding arises out of this Agreement, the terms of any other related agreement or any invoices from Seller, Texas law will govern the proceeding. The exclusive venue for such proceeding will be Dallas County, Texas, to the exclusion of all other venues, and the Purchaser and all its guarantors (if any) consent to venue and jurisdiction in Dallas County, Texas. This Agreement and all related agreements or Seller-issued invoices shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, without regard to any conflict of laws principles.
13. EXCLUSION OF WARRANTIES. UNLESS OTHERWISE STATED IN A RENTAL AGREEMENT OR AN EQUIPMENT PURCHASE AGREEMENT, SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, FITNESS OR SUITABILITY OF ANY EQUIPMENT OR PRODUCTS FOR THE PARTICULAR PURPOSES OR INTENDED USES OF APPLICANT AND SELLER MAKES NO REPRESENTATIONS AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR PRODUCTS. SUCH WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
14. LIMITATION OF LIABILITY. SELLER’S LIABILITY FOR ANY DAMAGES DUE TO APPLICANT UNDER ANY PURCHASE ORDER AND THESE TERMS SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SELLER PRODUCTS THAT ARE THE SUBJECT OF THE DAMAGES BEING CLAIMED BY PURCHASER. IN NO EVENT SHALL SELLER BE LIABLE TO APPLICANT FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY. 
15. INDEMNIFICATION. APPLICANT AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND LEGAL EXPENSES) ARISING OUT OF OR RELATED TO THE USE, LEASE, OR PURCHASE OF EQUIPMENT OR PRODUCTS PROVIDED BY SELLER, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO THE EQUIPMENT CAUSED BY THE APPLICANT’S NEGLIGENCE, MISUSE, OR INTENTIONAL ACTS; PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER CLAIMS ARISING FROM THE USE OR OPERATION OF THE EQUIPMENT DURING THE RENTAL AGREEMENT OR ACCOUNT AGREEMENT TERM; AND VIOLATION OF ANY APPLICABLE LAWS, REGULATIONS, OR CONTRACTUAL OBLIGATIONS BY THE APPLICANT IN CONNECTION WITH THE USE OF THE PRODUCTS OR EQUIPMENT. 
16. Entire Agreement; Modifications. Except as otherwise agreed to by Seller in writing, these Terms, together with Seller’s quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between Seller and Applicant (collectively, this “Agreement”), superseding completely any prior oral or written communications. This Agreement may not be changed, modified, or amended, except in writing signed by an authorized representative of Seller.
17. Assignment. Applicant shall not assign this Agreement, any contract of sale, any purchase order, any interest therein or any rights thereunder without the prior written consent of Seller. Any such assignment attempted without the prior written consent of Seller shall be deemed void and of no effect, and Seller may, at its discretion, terminate this Agreement.
18. Collection Agency. If the account is placed in the hands of an agency or attorney for collection or legal action, Applicant shall be responsible for the cost of collection, including agency fees, attorney fees, and court cost incurred.

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Equipment Orders

The Customer Equipment Order (the “Equipment Order”) is subject to the following definitions, terms and conditions which shall apply with equal force and effect whether this order involves a SALE or RENTAL of equipment.

1. The Company reserves the right to accept or reject this order by its authorized agent at its principal office in Dallas County, Texas, and shall not be required to give any reason for non-acceptance. In the event of such rejection, Company will not be responsible or liable to customer in any manner whatsoever.
2. This order when accepted in writing by Company shall become a binding contract (the “Agreement”), but shall be subject to strikes, lockouts, accidents, fire, delays in transportation, acts of God, embargoes, or Governmental action or any other causes beyond the control of Company whether the same as, or different from the matters and things hereinbefore specifically enumerated, and any of said causes shall absolutely absolve the Company from any responsibility or liability to the customer under the terms hereof.
3. In the event that Customer rents products or equipment from Company, Customer shall execute the Rental Agreement, provided by Company, by and between Company and Customer (the “Rental Agreement”). Customer acknowledges receipt of the terms of the Rental Agreement and upon delivery of the equipment identified herein, agrees to be bound by the terms of the Rental Agreement. In the event of a conflict between the terms of this Equipment Order and the Rental Agreement, the Rental Agreement shall govern. Customer agrees to pay the rental values or rates specified in the Rental Agreement, the pertinent schedule to the Rental Agreement, or the rental values or rates listed on this Equipment Order for the equipment identified herein. Customer agrees to pay the amount due for the rented products or equipment upon receipt of the applicable rental invoice.
4. In the event that Customer purchases the equipment identified in this Equipment Order on credit, Customer shall execute the Account Agreement, provided by Company, by and between Company and Customer (the “Account Agreement”). Customer acknowledges receipt of the terms of the Account Agreement and upon delivery of the equipment identified herein, agrees to be bound by the terms of the Account Agreement. In the event of a conflict between the terms of this Equipment Order and the Account Agreement, the Account Agreement shall govern.
5. The Company’s responsibility to customer for shipment ceases upon delivery to transportation company and any claim for shortages, delays or damages occurring after such delivery shall be made by the customer direct to the transportation company. Any claims by customer for shortages in shipment shall be made within three days after receipt of shipment.
6. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, WHETHER ON ACCOUNT OF PERSONAL INJURIES, DEATH, OR OTHERWISE SUFFERED OR SUSTAINED IN THE OPERATION OF THE EQUIPMENT OR MACHINERY LISTED HEREIN, NOR FOR ANY DAMAGES RESULTING TO THE CUSTOMER BY REASON OF DELAYS OF ANY FAILURE OR ALLEGED FAILURE OF SAID MACHINE TO OPERATE. THE TERM “DAMAGES” AS USED HEREIN SHALL INCLUDE, BUT IS NOT LIMITED TO, ANY CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS. CUSTOMER SHALL HOLD COMPANY HARMLESS FROM ANY CLAIM, DEMAND, ACTION, OR PROCEEDING RELATED TO SUCH DAMAGES.
7. Customer agrees on demand to execute and deliver to Company such notes and such additional forms and documents (such as Bill of Sale, Security Agreement, Lease and Rental Agreement, Financial Statement, Request for Information, and Request for Statement of Account and List of Collateral) as may be reasonably required by Company to consummate this Equipment Order when accepted. If payment in full for the equipment covered by this order shall not have been made within ten days of delivery, Seller may file a copy of this order as a Financing Statement to perfect Seller’s Security Interest in said equipment, and Purchaser acknowledges that said equipment is being acquired by Purchaser (as Debtor) from Seller (as Secured Party), and that Seller retains a Security Interest therein in accordance with the terms and provisions of the Uniform Commercial Code.
8. Should Customer attempt to grant Company a Security Interest to secure the payment of all or any part of the Purchase Price, then any 
sale of equipment by Company herein intended shall be conditioned upon said Security Interest being perfected as a first and superior lien to any and all other Security Interests, liens, mortgages and encumbrances whatsoever.
9. Where terms agreed to are other than for cash settlement, Customer acknowledges that he was quoted a cash sale price and a time sale price and has elected to make the purchase on a time sale basis.
10. All payments are due and payable to the office of Company in Dallas County, Texas or at the office of any assignee hereof in Dallas County, Texas, in lawful money of the United States, and will be subject to a late charge after maturity until paid computed at the highest legal contract rate of interest permissible in the State of Texas.
11. Customer agrees to sole responsibility for all loss or damage to equipment after delivery and shall have the same insured in favor of Company against all hazards to the extent of the Market Value determined by Company, and shall furnish evidence of such insurance upon request of Company.
12. Customer acknowledges responsibility for all sales, use or similar taxes and except as included above, such taxes shall be added to the payments quoted, or in lieu thereof Customer shall provide Company with a tax exemption certification acceptable to the taxing authorities.
13. This order, when accepted by the Company, shall constitute the entire agreement of the parties, and Customer agrees that Company is not bound by any representations, promises or agreements made by any officer, agent, or employee of Company relative to this transaction which are not embodied herein; and this order may be modified or rescinded only by a writing signed by both parties hereto.
14. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, AND SUCH WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

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Rentals

1. Agreement. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment and accessories (the “Equipment”) described in each Order executed from time-to-time pursuant to this Agreement. Each Order shall incorporate all of the terms and conditions of this Agreement, shall contain such additional terms as Lessee and Lessor shall agree upon, and shall constitute an agreement separate and distinct from this Agreement and any other Order. In the event of a conflict between the provisions of this Agreement and a Order, the provisions of the Order shall prevail.
2. Delivery; Acceptance. Lessor shall cause the Equipment to be delivered to Lessee at the Delivery Location specified in the Order. The applicable delivery charges and pick-up charges are set forth in the Order. Lessee shall be deemed to have accepted the Equipment unless Lessee notifies Lessor in writing within one business day of delivery of its rejection of the Equipment.
3. Term. The term of the leases applicable to Equipment referenced in the Orders shall commence upon the date, and continue for the period, specified in the applicable Order (each lease term applicable to a particular item of Equipment, together with any extensions, automatic or otherwise, is referred to herein as the “Term”). This Agreement may be terminated by either Party effective upon no less than 30 days’ notice to the other Party (the “Termination Notice”). Upon termination, no additional Orders shall be entered into or become effective under this Agreement. Leases in effect pursuant to Orders approved prior to the termination of this Agreement shall continue in full force and effect following such termination for their respective Terms, unless otherwise agreed to by the Parties. If Lessee sends the Termination Notice, Lessee shall immediately tender payment of all sums due to Lessor under this Agreement up to the date of the Termination Notice. If Lessor sends the Termination Notice, Lessor shall send a final invoice to Lessee for all sums due under this Agreement, and Lessee agrees to tender payment to Lessor no later than 5 business days after Lessee’s receipt of the invoice from Lessor.
4. Use of Equipment. Lessee shall use the Equipment (a) solely in connection with Lessee’s business and for the purpose for which the Equipment was designed and intended, and (b) in a careful and proper manner in accordance with all applicable laws, regulations and ordinances promulgated by any federal, state or local governmental body, agency or authority. Furthermore, Lessee shall not (x) sublease the Equipment without Lessor’s prior written consent, or (y) directly or indirectly create, incur or suffer to exist any lien, security interest or other encumbrance on the Equipment. Lessee is responsible for ensuring that the Equipment is operated and used only by individuals who have the proper licenses, training, and qualifications to do so. Lessee’s use of the Equipment shall not exceed the Hours allowed set forth in the Order; in the event that Lessee’s use of the Equipment exceeds the Hours allowed set forth in the Order, Lessee will pay the Overage Rate set forth in the Order for such additional use.
5. Rental Payments; Late Charges. Upon commencement of a Term, Lessee agrees to pay to Lessor rent for the Equipment (“Rent”) at the rates and at the times specified in the applicable Order for the duration of the Term. Notwithstanding anything to the contrary contained herein, Lessee agrees to pay the amount due for rentals upon receipt of the applicable rental invoice. Rent payments may be made by check, electronic transfer (with confirmation) or any other means agreed to by the Parties. Lessee agrees to pay Lessor interest at the rate of 18% per annum (or the maximum rate allowable under applicable law, if less) on any past-due amounts.
6. Taxes. Unless otherwise agreed to by Lessor, Lessee shall (a) pay all taxes, assessments and any other fees or expenses associated, with or resulting from, Lessee’s possession use or operation of the Equipment during the Term, (b) file all returns required of Lessee in that regard, and (c) furnish, upon Lessor’s request, verification that payment has been made before said taxes, assessments or fees become delinquent.
7. Title to Equipment. Title to the Equipment shall at all times remain with Lessor during the Term. In the event that Lessor deems it advisable at any time to prepare or file notices, filings or other documents (e.g., UCC-1 or other forms of financing statements) in order to protect its interest in and to the Equipment, Lessee shall cooperate fully with Lessor. Lessee authorizes Lessor to file financing statements, including, but not limited to, UCC-1s and UCC-3s, and other documents as Lessor deems necessary in order to perfect Lessor’s security interest in and to the Equipment.
8. Maintenance and Return of Equipment.
   1. Lessee shall, at its own cost and expense and at all times during the Term, maintain the Equipment in good operating order, repair, condition and appearance in accordance with the manufacturer’s recommended procedures and Lessor’s instructions. Lessee has a duty to inspect the Equipment regularly to ensure that it remains clean and in good working order at all times; provided, however, that Lessee shall not undertake any significant repairs to the Equipment without Lessor’s prior written consent. Lessee shall promptly notify Lessor of any Equipment malfunctions or defects so that Lessor can make the necessary and proper repairs in a timely manner.
   2. Upon expiration or other termination of the Term, to the extent Lessee has not exercised the option to purchase described in Section 20, if applicable, Lessee shall return to Lessor the Equipment in good operating order, repair, condition and appearance, normal wear and tear excepted, as it was at the commencement of the Term. Lessee shall be liable for a fueling fee at posted rates at the commencement of each rental for a full tank of fuel, and Lessee shall be liable for an additional cleaning fee in the event that Lessor is required to spend more than three hours cleaning the Equipment following its return to Lessor. Equipment must be returned to Lessor’s office, branch, or location where the Equipment was originally located at the time it was leased, must be returned during Lessor’s regular business hours, and must be acknowledged by an authorized representative of Lessor with a signed receiving report; Lessor is not responsible for Equipment Lessee returns to Lessor outside of Lessor’s regular business hours, and applicable late charges, lost item or abandonment fees will be applied to any Equipment returned outside of Lessor’s regular business hours in the event it is lost, stolen, or not properly attributed to Lessee.
9. Reporting Damage. In the event of Equipment damage or malfunction, Lessee shall immediately notify Lessor in writing and cease using the Equipment until further instructions are provided by Lessor. Lessor reserves the right to assess the extent of damage and determine the appropriate course of action, which may include repairing, replacing, or billing the Lessee for the cost of repairs or replacement. In the case of Equipment damage or repair costs, Lessor will invoice Lessee for the full amount due. Lessee agrees to promptly pay the invoiced amount within the time specified in the invoice to Lessee from Lessor.
10. Alterations of Equipment. Lessee shall make no alterations to the Equipment without obtaining prior written permission from Lessor, which permissions will not be unreasonably withheld. All additions to and improvements of the Equipment of any kind (except for alterations or additions that do not impair the value or performance of the Equipment and are readily removable without damage to the Equipment) shall immediately become the property of the Lessor and subject to the terms of this Agreement.
11. Risk of Loss. Lessee is responsible for all risk of loss, theft, damage, or destruction to the Equipment, from any and every cause, while such Equipment is in the custody or care of Lessee. In the event the Equipment is lost or damaged, Lessee will provide the Lessor with prompt written notice of such loss or damage and will, if the Equipment is repairable, put or cause the Equipment to be put in a state of good repair, appearance and condition. Loss or damage to the Equipment shall not relieve Lessee of its ongoing obligation to pay Rent. In the event the Equipment is lost or stolen, or suffers damage that is either not repairable or the cost of the repairs would exceed the Insured value of the Equipment (as specified in the Order), Lessee will provide Lessor with prompt written notice thereof and will pay to Lessor the sum of all unpaid Rent currently outstanding plus the Insured value of the Equipment set forth in the Order.
12. Insurance. Lessee shall, at its own cost and expense, obtain and maintain throughout the Term (a) general commercial liability insurance against claims for bodily injury, death and property damage with limits of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) general aggregate, to cover any liability caused by or arising out of activities of Lessee and Lessee’s employees with respect to the Equipment; and (b) property insurance against all risk or physical loss or damage to the Equipment with limits of not less than one hundred percent (100%) of the Insured value of the Equipment (as specified in the Order). All such policies of insurance shall name ROMCO Equipment Co., LLC as an additional insured, shall be in such form and with such carriers as are reasonably acceptable to Lessor and shall provide that they may not be canceled as to Lessor or altered to lessen the coverage of Lessor, without at least 30 days’ prior written notice to Lessor. All such insurance shall be primary, without right of contribution from any other insurance carried by Lessor, and shall provide that all proceeds are to be payable solely to Lessor. Lessee represents that it has workers’ compensation insurance in the amounts required by law. Lessee will furnish proof of all such insurance to Lessor upon Lessor’s request.
13. Location of Equipment; Right of Inspection. Lessee shall not (a) move the Equipment from the address specified in the applicable Order to another location within the State of Texas without providing prior written notice to Lessor (the “Relocation Notice”) and receiving acknowledgment from Lessor of the Relocation Notice; or (b) move the Equipment to any location outside the State of Texas without Lessor’s prior written consent. Upon Lessor’s request, Lessee shall inform Lessor of the exact location of the Equipment. Upon reasonable prior notice, Lessor shall at all times during business hours have the right to enter on the premises where the Equipment is located for the purpose of inspecting it or observing its use, but shall not unreasonably interfere with Lessee’s business. Failure by Lessee to inform Lessor of the Equipment’s location, notify of location changes, or promptly respond to location requests as specified in this provision may be considered a material breach of this Agreement and Lessor may take appropriate actions as provided for in this Agreement and applicable law.
14. Representations, Warranties, and Acknowledgments.
    1. Lessee acknowledges and agrees that each item of Equipment listed on any Order has been selected by Lessee for inclusion in this Agreement, based solely upon Lessee’s own judgment and without reliance upon any representations or warranties by Lessor.
    2. LESSEE ACKNOWLEDGES AND AGREES THAT (I) LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT; (II) LESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, FITNESS OR SUITABILITY OF THE EQUIPMENT FOR THE PARTICULAR PURPOSES OR INTENDED USES OF LESSEE; (III) LESSOR MAKES NO REPRESENTATIONS AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT; (IV) THE ONLY APPLICABLE WARRANTIES SHALL BE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT, WHICH WARRANTIES MAY OR MAY NOT BE TRANSFERABLE TO LESSEE; (V) CERTAIN PIECES OF THE EQUIPMENT MAY BE USED, AND ARE PROVIDED, WITHOUT WARRANTY; (VI) LESSOR’S SOLE RESPONSIBILITY WITH REGARD TO ANY CLAIM OF DEFECT OR BREACH OF MANUFACTURERS’ WARRANTY WILL BE TO LEND REASONABLE ASSISTANCE TO LESSEE IN THE PROSECUTION OF A CLAIM AGAINST THE MANUFACTURER; AND (VII) LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY USER OF THE EQUIPMENT FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGEDLY CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFECT OR DEFICIENCY THEREIN OR BY ANY INCIDENT WHATSOEVER THEREWITH, WHETHER ARISING IN TORT, STRICT LIABILITY, NEGLIGENCE, CONTRACT OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT.
    3. Lessor hereby assigns to Lessee any warranties covenants and representations of the manufacturer or seller of the Equipment, to the extent assignable. Neither Party will take any actions or fail to take any action the effect of which would be to invalidate any such warranty. Any amounts received by Lessee as payments under any warranty or as the result of the prosecution of any claim against any manufacturer shall be applied first to the repair, restoration or replacement of the Equipment, with any balance, less out-of-pocket expenses of Lessee, being paid to Lessor.
15. Site Conditions. Lessee is solely responsible for performing all necessary inspections and taking all necessary measures to ensure that the operating area for the Equipment is suitable for the use of the Equipment, including, without limitation, taking into account proximity to power lines, slopes, and underground utilities.
16. Indemnification. Lessee shall indemnify Lessor against, and hold Lessor harmless from, all claims, actions, proceedings, costs, damages, and liabilities, including attorney’s fees, asserted by any person or persons for property damage, bodily injuries, or death caused by or sustained due to Lessee’s use or possession of the Equipment.
17. Events of Default. Each of the following shall constitute an “Event of Default” under this Agreement:
    1. Non-payment by Lessee of any sum required hereunder (including Rent), which non-payment shall continue beyond five days after notice from Lessor;
    2. Lessee making an assignment for the benefit of creditors or filing any petition or action under any bankruptcy, reorganization, or insolvency law or laws for the relief of, or relating to, debtors; or
    3. Any other circumstance of non-performance by a Party of any covenant or condition of this Agreement applicable to such Party, which non-performance continues beyond 30 days after notice from the non-defaulting Party, unless the non-defaulting Party is satisfied that the defaulting Party is diligently pursuing a cure of such non-performance.
18. Lessor’s Remedies upon Lessee’s Default. In the case of an Event of Default with respect to which Lessee is the defaulting Party, Lessor may take any of the following actions: (a) proceed by appropriate court action, in law or equity, to enforce performance by Lessee of the applicable covenants of this Agreement or to recover damages for the breach thereof; (b) take possession, by summary proceedings or otherwise, of the Equipment; (c) terminate this Agreement; and/or (d) avail itself of any other remedy that might be available under applicable law. In addition, Lessee shall pay all costs, charges and expenses, including reasonable attorneys’ fees, incurred in retaking possession of the Equipment or in the collection of any sums which Lessee may owe Lessor, including but not limited to, the defense of any action brought against Lessor for damages caused by the Equipment to any person while the Equipment is or was in the possession of Lessee.
19. Lessee’s Remedies upon Lessor’s Default. In the case of an Event of Default with respect to which Lessor is the defaulting Party, Lessee may take any of the following actions: (a) terminate this Agreement; and/or (b) avail itself of any other remedy that might be available under applicable law.
20. Non-Waiver. The failure or refusal of a Party to insist upon the strict performance of any provision of the Agreement or to exercise any right shall not be construed as a waiver or relinquishment of such provision or right.
21. Option to Purchase. This section and the Purchase Option described below shall apply only to the extent that the applicable Order provides for an option to purchase the Equipment.
    1. General. Provided that Lessee has made all Rent payments to Lessor as required under this Agreement, Lessee shall have the right, at its option, to purchase the Equipment for an amount equal to the Option Payoff Price set forth in Section 20(b) (the “Option Payoff Price”) prior to the expiration of the applicable Term (the “Purchase Option”). Lessee shall exercise this Purchase Option by providing written notice to Lessor at any time prior to the expiration of the Term. In the event Lessee exercises this Purchase Option with respect to any Equipment, the following shall occur: (i) the closing shall occur within five days after the date Lessee delivers notice of its intent to exercise the Purchase Option to Lessor, unless extended by the mutual agreement of the Parties, and (ii) at the closing, Lessee shall pay to Lessor the Option Payoff Price by transfer of immediately available funds, and Lessor shall convey to Lessee marketable title to the Purchased Equipment, free and clear of all liens and encumbrances not specifically assumed by Lessee. Except to the extent of any manufacturer’s warranties, Lessor’s sale of Equipment pursuant to the exercise of a Purchase Option shall be on an “AS IS, WHERE IS” basis, without any representation or warranty by or recourse to Lessor, and Lessor specifically disclaims any warranties of merchantability or fitness for particular use or purpose with respect to the Equipment sold. Upon exercise of the Purchase Option with respect to any Equipment and payment of the Option Payoff Price, the lease Term of such Equipment shall cease.
    2. Option Payoff Price. If Lessee elects to exercise the Purchase Option, the Option Payoff Price shall be equal to the Beginning Payoff Price specified in the applicable Order, minus a specified percentage of Rent paid plus interest as specified in the applicable Order. Lessor may extend credit to Lessee to enable Lessee to exercise the Purchase Option to the extent Lessee may be eligible and qualified under Lessor’s financing programs, as determined by Lessor in its sole discretion.
22. Optional Damage Waiver. Lessee is responsible for all damage to the Equipment until the Equipment is returned to Lessor, regardless of whether a third party caused the damage or the cause is unknown. In the event Lessor gives Lessee the option to purchase a damage waiver as specified in the Order and Lessee purchases such damage waiver, Lessor agrees to waive the right to collect from Lessee for damages or loss to the Equipment up to the percentage of the insured value specified in such Order; provided, however, that the damages waiver is not effective with respect to, and will not reduce Lessee’s responsibility for, any damages or losses resulting from Lessee’s intentional, willful, or reckless conduct.
23. Time is of the Essence. Time is of the essence as to Lessee’s payment of Rent and other charges and fees under this Agreement and Lessee’s performance of all other obligations under this Agreement.
24. Assignment. Lessee shall not assign, transfer, or sublet this Agreement or any interest in the Equipment without Lessor’s prior written consent. The grant by Lessee of a sublease of any Equipment shall not affect or diminish any of Lessee’s obligations under this Agreement. Lessor may at any time assign or transfer any part of its right, title or interest in the Equipment or this Agreement, at which point Lessee will be obligated to such assignee as the new Lessor under this Agreement. Subject to the above, the rights and obligations under this Agreement shall inure to, and be binding on, their respective successors and assigns.
25. Notices. Any required notices under this Agreement must be in writing and be hand delivered, electronically mailed, or sent by registered mail return receipt requested to the Party receiving such communication at the address specified on the first page of this Agreement or such other address as either Party may in the future specify in writing to the other Party. Notices shall be deemed received upon actual receipt or refusal of delivery.
26. Entire Agreement. This Agreement, together with the Orders attached hereto, constitutes the entire agreement between the Parties pertaining to its subject matter, and supersedes all prior agreements pertaining to its subject matter. This Agreement shall not be altered or amended except by a writing signed by both Parties.
27. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Texas. Any claim or dispute under this Agreement must be resolved by a court located in Dallas County, Texas. In the event of a dispute, Lessee must provide Lessor with written notice of any dispute within 30 days of the incident that is the basis for such dispute, otherwise, Lessee waives all rights for such dispute. This Agreement as well as any related account agreement or invoices or Orders issued by Lessor are performable in Dallas County, Texas. The Lessee and all its guarantors (if any) agree that if any proceeding arises out of this Agreement, the terms of any other related agreement, the Orders or any invoices from Lessor, Texas law will govern the proceeding. The exclusive venue for such proceeding will be Dallas County, Texas, to the exclusion of all other venues, and the Lessee and all its guarantors (if any) consent to venue and jurisdiction in Dallas County, Texas. This Agreement and all related agreements or Lessor-issued invoices or Orders shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, without regard to any conflict of laws principles.
28. Severability. If any provision of this Agreement is held by a court or other tribunal to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and such invalid or unenforceable provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties.

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Rentals – Rental Houses Only

1. Agreement. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment and accessories (the “Equipment”) described in each Order executed from time-to-time pursuant to this Agreement (each, a “Order”). Each Order shall incorporate all of the terms and conditions of this Agreement, shall contain such additional terms as Lessee and Lessor shall agree upon, and shall constitute an agreement separate and distinct from this Agreement and any other Order. In the event of a conflict between the provisions of this Agreement and a Order, the provisions of the Order shall prevail.
2. Delivery; Acceptance. Lessor shall cause the Equipment to be delivered to Lessee at the Delivery Location specified in the Order. The applicable delivery charges and pick-up charges are set forth in the Order. Lessee shall be deemed to have accepted the Equipment unless Lessee notifies Lessor in writing within one business day of delivery of its rejection of the Equipment.
3. Term. The term of the leases applicable to Equipment referenced in the Orders shall commence upon the date, and continue for the period, specified in the applicable Order (each lease term applicable to a particular item of Equipment, together with any extensions, automatic or otherwise, is referred to herein as the “Term”). Upon termination, no additional Orders shall be entered into or become effective under this Agreement. Leases in effect pursuant to Orders approved prior to the termination of this Agreement shall continue in full force and effect following such termination for their respective Terms, unless otherwise agreed to by the Parties.
4. Use of Equipment. Lessee shall use or ensure that the Equipment is used at all times (a) for the purpose for which the Equipment was designed and intended, and (b) in a careful and proper manner in accordance with all applicable laws, regulations, and ordinances promulgated by any federal, state, or local governmental body, agency, or authority. Furthermore, Lessee shall not (x) except as provided below, sublease the Equipment without Lessor’s prior written consent, or (y) directly or indirectly create, incur, or suffer, or allow any Sublessee (as defined below) to create, incur, or suffer to exist any lien, security interest or other encumbrance on the Equipment. Lessee is responsible for ensuring that the Equipment is operated and used only by individuals who have the proper licenses, training, and qualifications to do so. Lessee shall not use the Equipment or allow any Sublessee to use the Equipment in excess of the Hours set forth in the Order; in the event that the Equipment is used in excess of the Hours allowed set forth in the Order, by Lessee, a Sublessee, or any other party during the Term, Lessee will pay the Overage Rate set forth in the Order for such additional use.
5. Rental Payments; Late Charges. Upon commencement of a Term, Lessee agrees to pay to Lessor rent for the Equipment (“Rent”) at the rates and at the times specified in the applicable Order for the duration of the Term. Rent payments may be made by check, electronic transfer (with confirmation), or any other means agreed to by the Parties. Lessee agrees to pay Lessor a late charge of 5% of any Rent payment (or other amount due hereunder) that is not paid within 15 days after the due date of the invoice, plus interest at the rate of 18% per annum (or the maximum rate allowable under applicable law, if less) on any past-due amounts.
6. Taxes. Unless otherwise agreed to by Lessor, Lessee shall (a) pay all taxes, assessments, and other fees or expenses associated, with or resulting from, Lessee’s possession use or operation of the Equipment during the Term, (b) file all returns required of Lessee in that regard, and (c) furnish, upon Lessor’s request, verification that payment has been made before such taxes, assessments, or fees become delinquent.
7. Title to Equipment. Title to the Equipment shall at all times shall remain with Lessor during the Term. In the event that Lessor deems it advisable at any time to prepare or file notices, filings, or other documents (e.g., UCC-1 or other forms of financing statements) in order to protect its interest in and to the Equipment, including in connection with any Sublease (as defined below), Lessee shall cooperate fully with Lessor and shall sign each such document.
8. Maintenance and Return of Equipment.
   1. Lessee shall, at its own cost and expense and at all times during the Term, maintain the Equipment or ensure that the Equipment is maintained in good operating order, repair, condition, and appearance in accordance with the manufacturer’s recommended procedures and Lessor’s instructions. Lessee has a duty to inspect the Equipment regularly to ensure that it remains clean and in good working order at all times, which duty shall apply even if Lessee enters into a Sublease of the Equipment; provided, however, that Lessee shall not undertake or allow any Sublessee to undertake any significant repairs to the Equipment without Lessor’s prior written consent. Lessee shall promptly notify Lessor of any Equipment malfunctions or defects so that Lessor can make the necessary and proper repairs in a timely manner.
   2. Upon expiration or other termination of the Term, to the extent Lessee has not exercised the option to purchase described in Section 20, if applicable, Lessee shall return to Lessor the Equipment in good operating order, repair, condition, and appearance, normal wear and tear excepted, with a full tank of fuel. Lessee shall be liable for a fueling fee at posted rates at the commencement of each rental for a full tank of fuel, and Lessee shall be liable for an additional cleaning fee in the event that Lessor is required to spend more than three hours cleaning the Equipment following its return to Lessor. Equipment must be returned to Lessor’s office branch or location where the Equipment was originally located at the time it was leased, must be returned during Lessor’s regular business hours, and must be acknowledged by an authorized representative of Lessor with a signed receiving report; Lessor is not responsible for Equipment Lessee returns to Lessor outside of Lessor’s regular business hours, and applicable late charges, lost item, or abandonment fees will be applied to any Equipment returned outside of Lessor’s regular business hours in the event it is lost, stolen, or not properly attributed to Lessee.
9. Alterations of Equipment. Lessee shall not make or allow to be made any alterations to the Equipment without obtaining Lessor’s prior written permission, which permissions will not be unreasonably withheld. All additions to and improvements of the Equipment of any kind (except for alterations or additions that do not impair the value or performance of the Equipment and are readily removable without damage to the Equipment) shall immediately become the property of the Lessor and subject to the terms of this Agreement.
10. Risk of Loss. Lessee is responsible for all risk of loss, theft, damage, or destruction to the Equipment from any and every cause, including, without limitation, due to the acts or omissions of any Sublessee, prior to the return of the Equipment to Lessor. In the event the Equipment is lost or damaged, Lessee will provide the Lessor with prompt written notice of such loss or damage and will, if the Equipment is repairable, put or cause the Equipment to be put in a state of good repair, appearance, and condition. Loss or damage to the Equipment shall not relieve Lessee of its ongoing obligation to pay Rent. In the event the Equipment is lost or stolen, or suffers damage that is either not repairable or the cost of the repairs would exceed the Full Value of the Equipment (as specified in the Order), Lessee will provide Lessor with prompt written notice thereof and will pay to Lessor the sum of all unpaid Rent currently outstanding plus the Full Value of the Equipment set forth in the Order.
11. Insurance. Lessee shall, at its own cost and expense, obtain and maintain throughout the Term (a) general commercial liability insurance against claims for bodily injury, death and property damage with limits of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) general aggregate, to cover any liability caused by or arising out of activities of Lessee and Lessee’s employees with respect to the Equipment; and (b) property insurance against all risk or physical loss or damage to the Equipment with limits of not less than one hundred percent (100%) of the Full Value of the Equipment (as specified in the Order). All such policies of insurance shall name ROMCO Equipment Co., LLC as an additional insured, shall be in such form and with such carriers as are reasonably acceptable to Lessor and shall provide that they may not be canceled as to Lessor or altered to lessen the coverage of Lessor, without at least 30 days’ prior written notice to Lessor. All such insurance shall be primary, without right of contribution from any other insurance carried by Lessor, and shall provide that all proceeds are to be payable solely to Lessor. Lessee represents that it has workers’ compensation insurance in the amounts required by law. Lessee will furnish proof of all such insurance to Lessor upon Lessor’s request.
12. Location of Equipment; Right of Inspection. Lessee shall not move or permit the Equipment to be moved to any location outside the State of Texas without Lessor’s prior written consent. Upon Lessor’s request, Lessee shall inform Lessor of the exact location of the Equipment. Lessor shall at all times during business hours have the right to enter on Lessee’s premises where the Equipment is located for the purpose of inspecting it or observing its use, and, if Lessee enters into a Sublease with respect the Equipment, Lessee shall ensure that the Sublease Agreement (as defined below) grants Lessee the right to enter onto the Sublessee’s premises for the purpose of inspecting such Equipment or observing its use.
13. Representations, Warranties, and Acknowledgments.
    1. Lessee acknowledges and agrees that each item of Equipment listed on any Order has been selected by Lessee for inclusion in this Agreement based solely upon Lessee’s own judgment and without reliance upon any representations or warranties by Lessor.
    2. LESSEE ACKNOWLEDGES AND AGREES THAT (I) LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT; (II) LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (III) THE ONLY APPLICABLE WARRANTIES SHALL BE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT, WHICH WARRANTIES MAY OR MAY NOT BE TRANSFERABLE TO LESSEE; (IV) LESSOR’S SOLE RESPONSIBILITY WITH REGARD TO ANY CLAIM OF DEFECT OR BREACH OF MANUFACTURERS’ WARRANTY WILL BE TO LEND REASONABLE ASSISTANCE TO LESSEE IN THE PROSECUTION OF A CLAIM AGAINST THE MANUFACTURER; AND (V) LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY USER OF THE EQUIPMENT FOR ANY CLAIM, LOSS, OR DAMAGE CAUSED OR ALLEGEDLY CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF, OR DEFECT OR DEFICIENCY THEREIN, OR BY ANY INCIDENT WHATSOEVER THEREWITH, WHETHER ARISING IN TORT, STRICT LIABILITY, NEGLIGENCE, CONTRACT, OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT.
    3. Lessor hereby assigns to Lessee any warranties, covenants, and representations of the manufacturer of the Equipment, to the extent assignable. Neither Party will take any actions or fail to take any action the effect of which would be to invalidate any such warranty. Any amounts Lessee receives as payments under any warranty or as the result of prosecuting any claim against any manufacturer shall be applied first to the repair, restoration, or replacement of the Equipment, with any balance, less out-of-pocket expenses of Lessee, being paid to Lessor.
14. Site Conditions. Lessee is responsible for ensuring that the operating area for the Equipment is suitable for the use of the Equipment, including, without limitation, taking into account proximity to power lines, slopes, and underground utilities.
15. Indemnification. Except to the extent caused by Lessor’s negligence or willful misconduct, Lessee shall indemnify Lessor against, and hold Lessor harmless from, all claims, actions, proceedings, costs, damages, and liabilities, including attorney’s fees, that may arise in connection with any of the following prior to the return of the Equipment to Lessor: (a) the loss of or damage to the Equipment due to any peril or casualty including, without limitation, flood and earthquake; (b) the death of or injury to any person or damage to the property of any person as a result of, in whole or in part, the use or condition of the Equipment; (c) any act or omission of Lessee in violation of this Lease; (d) the use or possession of the Equipment; and (e) any damage to Lessee’s property or the property of any third parties incurred in connection with the Equipment.
16. Events of Default. Each of the following shall constitute an “Event of Default” under this Agreement:
    1. Non-payment by Lessee of any sum required hereunder (including Rent), which non-payment shall continue beyond five days after notice from Lessor;
    2. Lessee making an assignment for the benefit of creditors or filing any petition or action under any bankruptcy, reorganization, or insolvency law or laws for the relief of, or relating to, debtors; or
    3. any other circumstance of non-performance by a Party of any covenant or condition of this Agreement applicable to such Party, which non-performance continues beyond 30 days after notice from the non-defaulting Party, unless the non-defaulting Party is satisfied that the defaulting Party is diligently pursuing a cure of such non-performance.
17. Lessor’s Remedies. In the case of an Event of Default with respect to which Lessee is the defaulting Party, Lessor may take any of the following actions: (a) proceed by appropriate court action, in law or equity, to enforce performance by Lessee of the applicable covenants of this Agreement or to recover damages for the breach thereof; (b) take possession, by summary proceedings or otherwise, of the Equipment; (c) terminate this Agreement; and/or (d) avail itself of any other remedy that might be available under applicable law. In addition, Lessee shall pay all costs, charges and expenses, including reasonable attorneys’ fees, incurred in retaking possession of the Equipment or in the collection of any sums which Lessee may owe Lessor, including but not limited to, the defense of any action brought against Lessor for damages caused by the Equipment to any person prior to the Equipment being returned to Lessor.
18. Lessee’s Remedies. In the case of an Event of Default with respect to which Lessor is the defaulting Party, Lessee may (a) terminate this Agreement; and/or (b) avail itself of any other remedy that might be available under applicable law.
19. Non-Waiver. The failure or refusal of a Party to insist upon the strict performance of any provision of the Agreement or to exercise any right shall not be construed as a waiver or relinquishment of such provision or right.
20. Option to Purchase. This section and the Purchase Option described below shall apply only to the extent that the applicable Order provides for an option to purchase the Equipment.
    1. General. Provided that Lessee has made all Rent payments to Lessor as required under this Agreement, Lessee shall have the right, at its option, to purchase the Equipment for an amount equal to the option purchase price set forth in Section 20(b) (the “Option Purchase Price”) prior to the expiration of the applicable Term (the “Purchase Option”). Lessee shall exercise this Purchase Option by providing written notice to Lessor at any time prior to the expiration of the Term. In the event Lessee exercises this Purchase Option with respect to any Equipment, the following shall occur: (i) the closing shall occur within five days after the date Lessee delivers notice of its intent to exercise the Purchase Option to Lessor, unless extended by the mutual agreement of the Parties, and (ii) at the closing, Lessee shall pay to Lessor the Option Purchase Price by transfer of immediately available funds, and Lessor shall convey to Lessee marketable title to the Purchased Equipment, free and clear of all liens and encumbrances not specifically assumed by Lessee. Except to the extent of any manufacturer’s warranties, Lessor’s sale of Equipment pursuant to the exercise of a Purchase Option shall be on an “AS IS, WHERE IS” basis, without any representation or warranty by or recourse to Lessor, and Lessor specifically disclaims any warranties of merchantability or fitness for particular use or purpose with respect to the Equipment sold. Upon exercise of the Purchase Option with respect to any Equipment and payment of the Option Purchase Price, the lease Term of such Equipment shall cease.
    2. Option Purchase Price. If Lessee elects to exercise the Purchase Option, the Option Purchase Price shall be equal to the Purchase Price specified in the applicable Order minus a specified percentage of Rent paid as specified in the applicable Order. Lessor may extend credit to Lessee to enable Lessee to exercise the Purchase Option to the extent Lessee may be eligible and qualified under Lessor’s financing programs, as determined by Lessor in its sole discretion.
21. Optional Damage Waiver. Lessee is responsible for all damage to the Equipment until the Equipment is returned to Lessor, regardless of whether a third party caused the damage or the cause is unknown. In the event Lessor gives Lessee the option to purchase a damages waiver as specified in the Order and Lessee purchases such damages waiver, Lessor agrees to waive the right to collect from Lessee for damages or loss to the Equipment up to the percentage of the Full Value specified in the Order; provided, however, that the damages waiver is not effective with respect to, and will not reduce Lessee’s responsibility for, any damage or losses resulting from Lessee’s intentional, willful, or reckless conduct.
22. Right to Sublease. So long as no Event of Default has occurred and is continuing, Lessee may sublease the Equipment (“Sublease”) to any solvent, domestic business entity (a “Sublessee”), subject to the following conditions: (a) Lessee remains fully liable for the performance of each and every term, provision, covenant, duty, and obligation of Lessee under this Agreement, including, without limitation, the duty to make any and all payments of Rent; (b) each Sublease will be subject and subordinate to this Agreement, and such subordinate status, along with Lessor’s right to recover the Equipment upon an Event of Default, must be explicitly detailed in the agreement governing the Sublease (the “Sublease Agreement”); (c) the Sublease Agreement must be at least as protective of Lessor’s interests in the Equipment as this Agreement; (d) Lessee must notify Lessor of each Sublease, including the identity of each Sublessee, immediately after execution of each applicable Sublease Agreement, provide Lessor a copy of each Sublease Agreement upon request, know where the Equipment is located at all times, and inform Lessor of the then-current location of the Equipment immediately upon request. For purposes of clarity, a Sublease will not alter, modify, waive, or release Lessee from any of Lessee’s obligations and duties under this Agreement.
23. Time is of the Essence. Time is of the essence as to Lessee’s payment of Rent and other charges and fees under this Agreement and Lessee’s performance of all other obligations under this Agreement.
24. Assignment. Except as specifically provided in this Agreement, Lessee shall not assign, transfer, or sublet this Agreement or any interest in the Equipment without Lessor’s prior written consent. Lessor may at any time assign or transfer any part of its right, title or interest in the Equipment or this Agreement, at which point Lessee will be obligated to such assignee as the new Lessor under this Agreement. Subject to the above, the rights and obligations under this Agreement shall inure to, and be binding on, their respective successors and assigns.
25. Notices. Any required notices under this Agreement must be in writing and be hand delivered, e-mailed, or sent by registered mail return receipt requested to the Party receiving such communication at the address specified on the first page of this Agreement or such other address as the recipient may designate in writing. Notices shall be deemed received upon actual receipt or refusal of delivery.
26. Entire Agreement. This Agreement, together with the Orders attached hereto, constitutes the entire agreement between the Parties pertaining to its subject matter, and supersedes all prior agreements pertaining to its subject matter. This Agreement shall not be altered or amended except by a writing signed by both Parties.
27. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Texas. Any claim or dispute under this Agreement must be resolved by a court located in Dallas County, Texas.
28. Severability. If any provision of this Agreement is held by a court or other tribunal to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and such invalid or unenforceable provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties.