Terms and Conditions | J&D Resources, LLC

TERMS AND CONDITIONS OF RENTAL CONTRACT – J & D RESOURCES, LLC

For good and valuable consideration, you and J & D Resources, LLC (also referred to in this contract as “JDR”, “Lessor”, “we”, “us” and “our”) agree as follows:

As used herein, "P.1" refers to the first page or "face" of this Contract; "Contract" refers to P.1 together with these Terms and Conditions; "Rented Item(s)" or "Items" means the item(s) rented or, if specifically set forth on P.1, sold, to you, as identified on P.1 (including any "Instructions" referenced in Section [or "§" 6] below); "Customer," "Lessee," "you" and "your mean the "Customer" identified on P.1; and "Site" means the address where the Item(s) will be delivered and/or used, as set forth on P.1.
You agree to: (a) rent the Rented Item(s) from JDR for the entire period(s) specified on P.1 (the "Term"); (b) return such Item(s) to us at the end of such Term; (c) pay us our stated rental rate(s) (the "Rent"), together with all other charges accruing hereunder, without proration, reduction or setoff; and (d) remain liable for all loss of and damage to the Rented Item(s) for the duration of the Term and until ail such Rented Item(s) is/are returned to and accepted by JDR in the proper return condition as required under this Contract (including § 10).
Except with respect to Rented Items which JDR rents from one or more third parties (each, a "TPO") and then re-rents to you ("Re-Rented Items"), JDR owns and will retain title to all Rented Items at all times. You will have exclusive control over the Rented Item(s) during the Term; subject however, to your obligation to fully and timely comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); or (b) loan, share, transfer, sublease, store, surrender or assign any Rented Item(s) or this Contract, without our prior written consent (in our sole discretion . JDR may sell and/or assign all or any part of its interests in the Rented Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of JDR or any TPO.
Unless otherwise agreed in writing by JDR, all rental rates are for normal use of the Rented Item(s) in accordance with the terms of this Contract and the "Instructions" referenced in § 6. You agree to pay us the greater of: (a) the amount chargeable on a per-acre basis as provided on P.1, or (b) the amount chargeable for the time elapsed during your rental Term at our regularly applicable rate(s) (unless we otherwise agree in writing). Additional Rent will be charged for late returns and overuse. No allowance will be made for weather delays, time in transit or other period(s) of nonuse. We have estimated the Rent based on your estimate of the length of the Term (the "Estimated Rent"). Unless we otherwise agree in writing: (i) you shall pay us: (A) any deposit and the Estimated Rent specified on P.1 in advance of the Term (the "Prepayment"); and (B) all other amounts coming due hereunder upon demand; and (ii)(A) we may deduct any amount you owe us from any Prepayment; (B) no interest will accrue on any Prepayment; (C) no Prepayment will be deemed a limit of your liability to us; (D) all Prepayments will be NON-REFUNDABLE except only as provided in § 7; and (E) anything remaining with, in or on any Item(s) upon return to us will be deemed surrendered and abandoned.
You agree to ensure the Site is reasonably safe, secure and otherwise fit for delivery and use of the Rented Item(s) at all times. If we agree to provide any service(s) (including without limitation, delivery, setup and/or retrieval), you agree to: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We are not responsible for any delay(s) caused by you, your agents, employees and/or any other parties, including providers of other equipment or services ("Other Providers") for which you agree to indemnify, defend and hold harmless JDR. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives regarding the same (including the status, condition, quality and quantities of the Item(s) and the Site).
Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(s) unless you thereupon reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by JDR), carefully examined, counted and tested by you or your agent(s); and (b) you: (i) have received, carefully reviewed and understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all applicable EPA, OSHA OSHA (see OSHA :Fact Sheet at https://www.osha.nov/OshDoc/data General Facts/ FarmFactS2.pdf), MSHA, ASME, IBC, IFC, IEEE, ASSP, DOT, FMCSA, IFTA, ANSI and other applicable standards (collectively, "Instructions"); (ii) will fully comply therewith (including Tier 4, Silica Dust. Ventilation and Electronic Logging Device requirements). (iii) have been made aware of the-need to use all applicable personal protective equipment and safety devices (including RESPIRATORY, FALL PROTECTION and other safety devices); (iv) will use each Item only for its intended purpose in a reasonable and safe manner, (v) will timely give all applicable notice(s) to, and obtain all applicable licenses, authorizations, permits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly marked before using any Item(s) to dig or disturb the ground surface (call 811 or 800-632-4949 and go to www.NC811.org) at least 3 full business days in advance; (vi) will immediately cease using any Item that is damaged, breaks down, or proves defective (a 'Malfunction"); and (vii) will ensure that all others comply with this Contract at all times. You will notify us immediately if any of the foregoing shall be breached or proven incorrect or misleading.
In the event of a Malfunction, you will immediately notify, and return the Malfunctioning Item to, JDR, and provided such Malfunction did not result from or in connection with any wrongful or negligent act or omission of, or any breach of any provision of this Contract by, you or anyone you permit to use or otherwise deal with such Item(s), we will, at our option: (a) repair the subject Item; (b) provide you with a comparable replacement Item; or (c) with respect only to the Malfunctioning Item(s), return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. JDR will have no other obligation(s) with respect to Malfunctions, all of which you waive, together with all associated direct, incidental, consequential and other indirect damages.
WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS. ACCORDINGLY, YOU AGREE TO: (A) PROVIDE ALL APPLICABLE TRAINING. FAMILIARIZATION, INSTRUCTIONS AND WARNINGS TO ALL PERSONS WHO USE, OPERATE, OCCUPY OR OTHERWISE DEAL WITH ANY RENTED ITEM(S); AND (B) ENSURE THAT EACH RENTED ITEM IS TRANSPORTED, SERVICED, MAINTAINED, REPAIRED, USED, OPERATED AND OCCUPIED: (I) WITH GREAT CARE; (II) WITHIN ITS RATED CAPACITY; (III) UNLESS OTHERWISE SPECIFICALLY AGREED BY JDR, AT THE SITE; (IV) BY PROPERLY TRAINED, FAMILIARIZED, QUALIFIED, CERTIFIED, SUPERVISED AND/OR LICENSED (AS APPLICABLE) ADULTS; AND (V) OTHERWISE IN FULL COMPLIANCE WITH THIS CONTRACT, THE INSTRUCTIONS AND ALL LAWS, RULES AND REGULATIONS, AT ALL TIMES.
You agree to maintain all insurance we may require, including: (a) liability insurance with minimum limits of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; (c) workers' compensation insurance; and (d) for any/all vehicles and trailers included in or with the Rented Item(s): (i) hired auto liability insurance with minimum limits of $1,000,000; (ii) hired auto physical damage insurance for actual cash value; and (iii) contents insurance for the full new replacement cost of all contents thereof. Such policies shall, whenever possible: (A) name JDR and each TPO as an additional insured and loss payee; (B) waive subrogation against them; (C) be primary and non-contributory; and (D) include such other provisions (including deductibles) as we may require. You irrevocably appoint JDR as your agent and attorney-in-fact for purposes of submitting and negotiating claims on all such policies.
You agree to protect, properly maintain and care for each Rented Item at all times keep it safely and securely stored and locked when not in use, and return it to JDR on time, clean, free of contaminants (including without limitation, asbestos, beryllium and silica) and otherwise in good order, condition and repair, properly serviced and maintained, and if applicable, full of the appropriate fuel, fluid and lubricants. If you fail to do so, then in addition to the amounts set forth on P.1, you will pay us: (a) hourly Rent until all Item(s) has/have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You will not, nor will you permit anyone else to: (i) abuse, misuse, overuse, remove from the Site, conceal, repair, modify or damage any Rented Item(s); (ti) violate any law, policy of insurance or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Rented Item(s); or (v) take possession of or exercise control over any Rented Item(s), without our prior consent (granted, conditioned or withheld in our sole and absolute discretion), Additionally, YOU SHALL NOT PLACE OR STORE IN OR ON Ala REMO ITEM(S) (including trailers) any: (A) toxic, noxious, flammable, explosive, corrosive, contaminated or other potentially harmful or hazardous materials and/or substances; or (B) contraband.
NO WARRANTIES: JDR IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE ITEM(S) REFERENCED IN THIS CONTRACT, ALL OF WHICH ARE PROVIDED "AS-IS". NEITHER JDR NOR ANY TPO, MAKES ANY WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND/OR GOOD AND WORKMANLIKE PERFORMANCE, AS WELL AS ANY WARRANTY(IES) ARISING FROM OR IN CONNECTION WITH ANY COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) REGARDING ANY ITEM(S) OR SERVICE(S) REFERENCED IN THIS CONTRACT, NOR DOES JDR OR ANY TPO MAKE ANY WARRANTY(IES) AGAINST INTERFERENCE OR INFRINGEMENT, ALL OF WHICH YOU WAIVE. NO DESCRIPTIONS, SPECIFICATIONS, DEPICTIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY JDR OR ANY TPO.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, LOSS, PROPERTY DAMAGE AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, "RISKS"); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, J&D RESOURCES, LLC, EACH TPO, and their respective owners, affiliates, subsidiaries, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an "Indemnitee"), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys' fees) arising from and/or in connection with the Rented Item(s), this Contract and/or your breach of any one or more of the terms hereof; and except only as provided in § 7, (C) WAIVE all rights and remedies available under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general, special, statutory, exemplary and punitive damages, against J&D Resources, LLC and each and every other Indemnitee.
This Contract, and any addenda provided by JDR, each of which is incorporated herein, represent(s) the entire agreement between you and JDR, superseding all other oral and written agreements and representations (including our website and advertising). The terms of this Contract are severable. If any provision hereof is deemed invalid or unenforceable by any court of competent jurisdiction, such provision will be deleted, and the remainder hereof will remain valid and enforceable. This Contract cannot otherwise be amended or extended except in a writing signed by J&D Resources, LLC. These Terms and Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us at any time (except only as otherwise agreed by JDR). You acknowledge that this Contract: (a) constitutes a true operating lease, and not a disguised financing; (b) is fair and reasonable; and (c) shall bind and be enforceable by you, J&D Resources, LLC., the other Indemnitees, and the aforesaid parties respective insurers, subrogees, representatives, successors and permitted assigns (there being no other third-party beneficiaries hereto).
Any item(s) sold to you ("Sale Items"), as provided on Page 1 are provided "AS-IS" and "WITH ALL FAULTS," and are subject to the terms of this Contract (modified to address sales); provided that our obligations under § 7 shall expire and terminate 3 days after the date of purchase. All Item(s) not specifically identified as Sale Items on P.1 will be deemed to be "Rented Item(s)".
You agree to pay all taxes (including without limitation, all sales, use, property, privilege, "Certain Machinery and Equipment," "Motor Vehicle Lease and Rental," "Rental Vehicle," "Alternate Highway Use," "Heavy Equipment" and other taxes), fines, fees, tolls and other charges related to each Item. In the event any legal action is commenced in connection with this Contract, the prevailing party will be entitled to recover its costs and expenses associated therewith (including without limitation, attorneys' fees and expenses) from the non-prevailing party. All amounts due hereunder but not timely paid will bear interest at the lesser of: (i) 18% per annum; or (ii) the highest rate permitted by law until paid. You authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide and agree to pay us the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability in connection with this Contract is limited to the amount(s) actually paid by you to, and received by, us hereunder. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. To the maximum extent permitted under applicable law, you grant to J&D Resources, LLC a lien on all real and personal property: (a) placed in or on; and/or (b) improved with, any Rented Item(s). We may, without notice or liability to you, monitor, inspect and/or shut down or disable (in person and/or electronically, including via GPS and/or telematics systems) any Rented Item(s) at any time. You consent to the same and agree that all information thereby obtained will be our property. If any performance required of us is delayed or impaired as a result of any act or omission of/by you, any Other Provider(s) or any "Act of God" (any event, fact or circumstance beyond our reasonable control), we will be excused from such performance. You waive the benefits of all statutes of limitations regarding our rights and remedies.
This Contract shall be governed by and enforceable under the laws of North Carolina. Disputes arising under and/or in connection with this Contract and/or its subject matter, shall, at the sole option of JDR, be submitted to binding arbitration in accordance with the Rules of the American Arbitration Association at its offices located in or nearest to Siler City, NC before a single arbitrator selected by JDR. Judgment on the arbitrator's award shall be final and binding on the parties hereto and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection therewith shall lie exclusively in the federal, state and local courts located in or nearest to Randolph County, NC (unless waived by JDR). You consent and submit thereto, and waive all claims that such venue lies in an inconvenient forum.
Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract and/or any of your obligations arising in connection herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or cease conducting business, or if any Rented Item(s) shall be lost or damaged, you will be in DEFAULT under this Contract, whereupon, we may with or without legal process or notice (and without liability to you or any guarantor) to the maximum extent permitted under applicable law: (i) terminate your rental(s); (ii) seek relief from stay; (iii) recover, empty, lock, restrict, shut down and/or disable any one or more Rented Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage, including without limitation, any and all damage to crops, flora and/or fauna (for which you will indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and such guarantor(s) our associated direct and indirect damages, losses, costs and expenses (including without limitation, Rent for the balance of the scheduled Term, loss of use, interest, attorneys' fees and collection costs); and/or (vii) pursue any other rights and/or remedies available hereunder, at law and/or in equity, all of which shall be cumulative.
WARNING: Obtaining property of another by false pretenses and/or damaging or failing to return rented property may be deemed theft. Doing so may result in CIVIL LIABILITY AND/OR CRIMINAL PROSECUTION. See N.C.G.S. Ch.14, Articles 16, 19 and 24, et seq. and their successor provision(s) for details.