eps america, llc
1. Acceptance and Governing Provisions
Each project quote (“Project Quote”) issued by eps america, LLC (“eps”) is an offer to rent the products and equipment (“Equipment”) and provide the labor and services (“Services”) identified in that Project Quote for a specific project (“Project”). Any Project Quote will be valid only for 30 days from issuance, unless reissued or extended in writing by eps. The proposed customer (“Customer”) will be deemed to have accepted a Project Quote as issued if Customer timely returns to eps the signed Project Quote. Upon acceptance, the Project Quote together with these General Terms and Conditions (“Terms & Conditions”) and any other documents specifically incorporated in the Project Quote or separately agreed to in writing, such as specifications, drawings, or other requirements of Customer, will become a binding contract between Customer and eps (collectively, the “Contract”). eps shall have the right but not the obligation to cancel any Contract if the associated deposit (if any) is not timely received by eps. If Customer objects to a Project Quote or proposes alternate or additional terms, the Project Quote will become a Contract only if and when Customer and eps mutually agree in writing.
2. Changes
Customer or eps may request changes to the Equipment or Services at any time before or during performance, but no proposed change shall become part of the Contract unless confirmed in writing by eps and Customer.
3. Rental Term
Unless otherwise specified in the Contract, the rental term is computed on a weekly basis, including any part thereof, beginning upon provision of the Equipment for unloading and ending upon collection of the Equipment after it has been loaded and made safe for transport. No allowance is made for Saturdays, Sundays or Holidays. Customer agrees to provide eps a reasonable period for removal of Products upon completion of the rental term, not to exceed 24 hours unless otherwise agreed in writing.
4. Shipping and Delivery
Unless otherwise stated in the Contract (i.e., unless Customer has contracted for unloading services), Equipment will be delivered to Customer’s loading dock (DAP – Incoterms) and Customer will assume responsibility for unloading, installation, dismantling, and loading at conclusion of rental term. eps is not obligated to wait more than 2 hours beyond each of the times scheduled for delivery and pick-up, and Customer will be responsible for additional charges in the event the Customer is not ready for unloading or pick-up at the agreed-upon time. Customer also will be responsible for additional costs of expedited or other special transportation Customer may require as a result of changes to the schedule or for other reasons not caused by eps.
5. Condition of Equipment and Inspection
Customer will be responsible for inspecting all Equipment upon delivery. Unless Customer objects at the time of delivery, it shall be deemed conclusive that all Equipment was delivered and was in good working order when delivered. Customer’s sole remedy for non-conforming Equipment will be to reject the non-conforming Equipment and require eps, at eps’s option and expense (including applicable shipping costs), to either (a) repair or replace the non-conforming Equipment; or (b) credit Customer for the non-conforming Equipment against amounts otherwise due under the Contract. eps reserves the right for any reason to substitute functionally equivalent Equipment for Equipment specified in the Contract. Upon tender of delivery, no allowance will be made for any rented Equipment or portion thereof which is claimed not to have been used by the Customer.
6. Site Conditions
Customer must ensure that the loading dock or comparable location for unloading is easily accessible by trucks with a permitted total weight of up to 48,000 lbs. and fully accessible at the time of delivery. To the extent eps contracts for unloading, installation, dismantling and/or reloading, Customer must ensure that the site, including all access routes, working environment and installation location(s) (“Site”), is free of any objects that could prevent or hinder access and otherwise is fully adequate for the intended use. The Site (including but not limited to all access routes and the installation locations for Equipment) must be suitably level and stable. The preparation of the Site is to be completed in advance and at no cost to eps. Any damage to the Site will be the responsibility of the Customer unless solely caused by eps, and Customer will be responsible for any delays as well as additional charges based on inadequacies associated with Site conditions. Customer also is responsible for providing (at no cost to eps) utilities (including electricity and water) and secure storage capacities as reasonably required by eps.
7. Proper Use, Damage, Loss or Missing Equipment
Customer warrants that Customer has personnel available or otherwise contracted for who are familiar with the safe and proper unloading, installation, use, dismantling, and loading of the Equipment. Customer will keep the Equipment secure and Customer agrees, apart from customary wear and tear, all Equipment shall be returned to eps clean and in good repair. Customer assumes the risk of loss or damage to Equipment during the rental term, regardless of the cause. Equipment returned by Customer other than as agreed, will be cleaned, repaired, refurbished and/or replaced as necessary by eps at Customer’s expense. Customer is not authorized to perform any repairs without the express consent of eps. All Equipment which cannot be repaired or refurbished at less than the current published list price will be invoiced to Customer at its current published list price. Acceptance of returned equipment by eps does not constitute a waiver of any of the rights eps has under the Contract. Without limiting the foregoing, Customer will provide eps at no charge for the duration of the rental term a secure location to store eps tools, pallets and other equipment and material used for loading/unloading, installation and dismantling of Equipment and shall be liable for any loss or damage not attributable to eps.
8. Title
Customer agrees that rental of Equipment does not grant Customer any title or property rights in the Equipment, and all title and property rights shall remain with eps. Customer covenants that it shall keep eps’ interest in this agreement and the Equipment free from all liens and encumbrances.
9. Subletting
All Equipment identified in a Project Quote is intended for a specific Project at a specific Site. No part of the Equipment shall be sublet, transferred or assigned by Customer, or removed from the Site, except with the prior written consent of eps.
10. Payment
All prices are quoted, and payments must be received, in U.S. Dollars (USD). Customer shall be liable for a fifteen percent (15%) cancellation fee unless notice of cancellation in writing is received by eps at least fourteen (14) calendar days prior to the scheduled delivery date. Final invoices are due and payable upon transmission by eps unless otherwise expressly indicated. eps reserves the right to impose a late payment charge of one and one-half percent (1.50%) per month on all sums not timely paid. eps will accept payment by check or other cash equivalent, including electronic funds transfer. eps employees and agents are not entitled to accept payment on our behalf. Customer is responsible for payment of sales and other applicable taxes and charges imposed by any governmental authority.
11. Liability and Indemnity
Customer is solely responsible for site design and selection of Equipment and shall be liable for all losses and damages arising from the use or misuse of the Equipment, including any accidents to persons or property arising therefrom. Customer covenants and agrees to indemnify and hold harmless eps and its predecessors, successors, parents, subsidiaries, attorneys, agents, officers, directors, employees, contractors, and other affiliates (“eps AFFILIATES”) free from any and all claims, actions, suits, damages and liabilities, including attorney’s fees, arising out of, connected with, or resulting from the rented Equipment and/or its complimentary tools or attachments. This includes, without limitations, the selection, delivery, possession or use of the rented Equipment.
12. Insurance
Customer shall maintain comprehensive, all-risk insurance against loss, theft, damage or destruction of the equipment in an amount no less than the full insurable value of the Equipment. Customer shall also maintain comprehensive general liability insurance in an amount not less than $1,000,000.00. Whenever the replacement value of the Equipment being rented for a Project exceeds One Hundred Thousand Dollars ($100,000.00), a certificate of insurance naming eps as an additional insured and including eps as a loss payee, must be received by eps before any equipment is shipped or delivered.
13. Warranty and Limitation
EPS MAKES NO WARRANTY, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR THAT THE EQUIPMENT SHALL BE FIT FOR A PARTICULAR PURPOSE. FURTHER, EPS IS NOT OBLIGATED TO RENDER ADVICE TO THE CUSTOMER OR TO MAKE RECOMMENDATIONS CONCERNING THE USE OF EQUIPMENT OR ANY ASSOCIATED SITE DESIGN, AND EPS ACCEPTS NO RESPONSIBILITY FOR GRATUITIOUS ADVICE OR RECOMMENDATIONS MADE BY EPS PERSONNEL OR ANY LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF SUCH INFORMATION OR DAMAGES ARISING THEREFROM.
14. Damages and Limitation
THE MAXIMUM LIABILITY OF EPS AND ANY EPS AFFILIATES, IF ANY, UNDER THIS AGREEMENT, OR ARISING OUT OF ANY CLAIM RELATED TO THE EQUIPMENT OR SERVICES, FOR DIRECT DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY eps FROM CUSTOMER HEREUNDER UP TO THE TIME THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY OCCURRED. IN NO EVENT SHALL eps OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY BENEFICIARY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES RELATED TO EQUIPMENT OR SERVICES PROVIDED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Default
In the event of Customer’s default or breach of any term or condition of this agreement, Lessor may terminate this agreement and declare the entire unpaid balance immediately due and payable and, in addition to any remedy provided by law, at eps’ sole option, Customer shall: (a) immediately dismantle the Equipment and make it available for loading and transport; (b) permit eps to enter the Site and remove the Equipment; or (c) permit eps to dispose of the Equipment on Site in such manner as eps may determine.
16. General
16.1 Headings
The headings and captions used in these Terms & Conditions are used for convenience only and are not to be considered in construing or interpreting these Terms & Conditions.
16.2 Relationship of the Parties
Customer and eps are independent parties, and nothing in these Terms & Conditions or the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party. Except as otherwise provided in the Contract, eps shall have no right to control Customer’s use and operation of the Equipment.
16.3 Entire Agreement
The Contract, including these Terms & Conditions, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Contract, including Customer’s request for quotation and eps’s quotation unless specifically incorporated in the Contract. No subsequent terms, conditions, understandings, or agreements purporting to modify the terms of the Contract will be binding unless confirmed in writing by both parties.
16.4 Priority
Specific terms and conditions on the Project Quote and the other documents comprising the Contract will take priority over any inconsistent provision in these Terms & Conditions.
16.5 Incorporation into Subsequent Contracts
After the first Contract between the parties, these Terms & Conditions will be deemed to be incorporated into every subsequent Project Quote, and acceptance of any subsequent Project Quote by Customer shall be deemed an acceptance of these Terms & Conditions, including any subsequent amendments, in each subsequent Contract.
16.6 Amendment
These Terms & Conditions, as published on the eps website located at www.eps.net at the time of delivery of rental Products and/or provision of Services, are the governing terms and conditions between eps and Customer, and may be amended from time to time by eps without further notice to Customer.
16.7 Force Majeure
Neither party shall be excused from timely performance based on Acts of God such as rain, storm or other natural disaster or on the failure of performance of third parties such as labor disruptions or failures of third-party contractors or suppliers (“Force Majeure Events”), but eps shall be granted a reasonable extension to any delivery schedule based on Force Majeure Events that interfere with the timely transport of Equipment to the Site, provided that eps: (a) gives prompt notice thereof; and (b) takes all steps reasonably necessary to mitigate the effects of the Force Majeure Event.
16.8 Fuel Surcharge
Quoted prices that include delivery of Equipment are based on prevailing fuel prices. In the event prevailing fuel prices increase by more than 20% between the time of Contract and delivery, eps shall have the right to add a fuel surcharge to the Contract price to offset the increase in the prevailing fuel price.
16.9 Compliance with Laws
Customer shall comply with applicable laws, rules and regulations of the jurisdiction(s) where the Equipment will be used.
16.10 Notices
Unless otherwise provided, any notice required or permitted under this Note shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or by a nationally-recognized delivery service (such as Federal Express or UPS) or forty-eight (48) hours after being deposited with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the Party at the address set forth in the Contract, or at such other address as may be designated in writing.
16.11 Waiver
The failure of either party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
16.12 Governing Law. The Contract shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.
16.13 Dispute Resolution and Attorney Fees. Customer and eps will first endeavor to resolve through good faith negotiations any dispute arising under or relating to the construction, interpretation or enforcement of these Terms & Conditions, or any Contract arising therefrom. If a dispute cannot be resolved through good faith negotiations, the prevailing party in any resulting action or proceeding will be entitled to recover its expenses and costs, including reasonable attorneys’ fees, in addition to any other relief that may be granted.
16.14 Venue and Jury Trial Waiver
The exclusive venue for any action or proceeding relating to the construction, interpretation or enforcement of these Terms & Conditions, or any Contract arising therefrom, shall be the Superior Court For the State of California For the County of Los Angeles Central District or the United States District Court for the Central District of California. Customer hereby consents to personal and subject matter jurisdiction in those courts, and waives any defenses Customer otherwise might have relating thereto. EPS AND CUSTOMER EACH IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LITIGATION IN WHICH eps AND CUSTOMER ARE ADVERSE PARTIES TO THE FULLEST EXTENT PERMITTED BY LAW.
16.15 Assignment
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party without the prior written consent of the other Party, provided however that eps may assign any Contract to any successor of eps or any purchaser of all, or substantially all, of the company’s assets, without further consent.
16.16 Severability
If one or more provisions of these Terms & Conditions or any associated Contract is held to be unenforceable under applicable law, such provision(s) shall be excluded from therefrom provided that such severance does not alter the fundamental terms and conditions of any applicable transaction, and the remaining provisions shall be fully enforceable in accordance with their terms.
eps america, llc Terms and Conditions Effective 05/12/14