Rental Terms & Conditions

TERMS AND CONDITIONS FOR RENTALS/LEASES

1. DEFINITIONS:

• “Agreement”: The culmination of all documentation (whether written or electronic) provided to Customer in connection with any rented or leased Equipment, including these Terms & Conditions.  Unless specifically stated otherwise and mutually executed, these Terms & Conditions shall supersede any contradictory provisions from Company or Customer sources.
• “Company”: Boyd Company or an affiliated provider of the Equipment.
• “Customer”: As identified on the Agreement, the renter/lessee/user of the Equipment.
• “Equipment”: The machinery or equipment rented or leased to Customer including all items rented together with all present and future attachments, accessories, replacement parts, repairs, appurtenances, and similar items.
• “Jobsite”: The job location identified in the reservation details.

2. ACKNOWLEDGEMENT:

The Agreement governs the rental or lease of Equipment from Company by any Customer (including the use of Equipment under a no charge, loaner, or demonstration arrangement).

Company hereby rejects the terms of any purchase order or similar document of Customer, unless the document is signed by Company management and an authorized equivalent by Customer expressly stating such terms shall apply to the Agreement.

Customer explicitly agrees to be bound by and accepts these Terms & Conditions.  Customer acknowledges the opportunity to have fully reviewed and understand these Terms & Conditions. When a signature is obtained on any invoice, any individual signing represents and warrants that he or she has the authority and power to sign and bind on behalf of Customer.  In the event a signature is not obtained, acceptance of the Equipment will be deemed as a binding acknowledgement by Customer.

3. CHARGES:

Unless identified on the Agreement as a “no charge agreement,” “loaner agreement,” or “demonstration agreement,” Customer agrees to pay Company at Company’s posted rental rates and/or schedules as in effect on the date the rental term commences.

Rental rates assume an 8-hour day, 40-hour week and 160 hour 4-week period.  All Equipment used by the Customer for “double shift use” (i.e., 16 hours per day) will be charged at 1.75 times the appropriate daily, weekly, or 4-week rental rate.  Equipment utilized by the Customer for triple shift use (24 hours per day) will be charged at 2.75 times the appropriate daily, weekly, or 4-week rate.

Company reserves the right to determine overtime use from time to time during the rental term and/or following the return of the Equipment.

Rental rates do not include, and Customer is solely responsible for: (a) all consumables, fees, licenses, applicable taxes, and any other governmental fees or charges based on Customer’s possession or use of the Equipment, including additional fees for more than one-shift use; (b) if any sales tax, use tax, property tax, or other tax, license or fee is imposed by any governmental authority upon the rental/lease or use of the Equipment, such amount shall be paid by Customer in addition to the rental rates; (c) delivery and pickup charges, including but not limited to any freight, transportation, delivery, and pickup fees and surcharge fees; (d) maintenance, repairs, and replacements to the Equipment as provided in this Agreement; (e) miscellaneous charges and fines, such as fees for lost keys, the Rental Protection Program (defined herein), damages as outlined herein, and cleaning; and (f) fuel used and any refueling charge described herein; and any applicable environmental fees.

4. TERMS OF PAYMENT:

Customer agrees to pay, in advance in a lump sum, the entire rental charge for the Equipment for the term denoted in the Agreement. Customer agrees to pay all charges for the purchase of parts and/or supplies immediately upon receipt of the items purchased, to pay for overtime use, and to pay for service work at Company’s posted service rates, immediately upon completion of work. Parts and service purchases are subject to the Terms & Conditions of Sales and Service.

All payments due under this Agreement which are not paid within 15 days of invoice shall bear a late or delinquency charge of 1.5% per month or fraction thereof, computed from the due date to the date of payment, compounded monthly. Payments, when made, shall apply first to accrued late or delinquency charges, and the remainder shall apply to the balance due hereunder.

Customer agrees that the Company reserves the right to charge the credit card and/or Customer’s account for any amount owed by Customer pursuant to this section due to late or past due payment(s), pickup or delivery charge(s), extended rental(s), rental charges, or taxes.

In the event Customer asserts that a transaction is exempt from taxes, Customer agrees to provide a valid tax exemption certificate. Should the transaction later be deemed taxable, Customer is obligated to reimburse the Company for any tax assessed that was attributable to Customer.

Customer must notify the Company in writing of any disputed amounts, including credit card charges, within 15 days after date of the invoice, or Customer will be deemed to have irrevocably waived its right to dispute such amounts.

Customer authorizes the Company to obtain a consumer credit report on Customer at any time during Customer’s business dealings with Company.

5. PURCHASE OPTION:

If a “Purchase Option” is provided by Company, Customer shall have the option to purchase the Equipment for the amount set forth on the Agreement.  Any such option, if granted, is not intended to, and shall not make this Agreement an agreement of sale, secured or otherwise.

Written notice of the exercise of any option must be delivered to and accepted by Company prior to expiration of the term of the Agreement.  All amounts due under the Agreement or with respect to any other transaction between Company and Customer shall be paid before the option may be exercised.  The option shall expire upon the happening of any of the following: (a) the occurrence of any default or material breach, (b) the termination or expiration of the Agreement, or (c) the failure of Customer to pay the full purchase price of the Equipment within 10 days of Customer’s notice of its intent to exercise the option.

If the purchase option is exercised, all payments made during the rental/lease period shall apply first to the payment of any amounts due under this Agreement, including but not limited to any late or delinquency charges, taxes, transportation charges, maintenance and repair charges, insurance charges, and recording fees, and then to the option price.  The unpaid balance of the Equipment will be subject to the term and interest rate stated on the Agreement.

Upon payment in full of all amounts due, Company shall transfer the Equipment to Customer,

AS-IS, WHERE-IS, WITHOUT RECOURSE, REPRESENTATION, OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.

If the Agreement does not set forth a Purchase Option, Customer shall have no right of purchase.

6. INSPECTION OF EQUIPMENT; TOWING DEVICES:

Customer acknowledges and agrees that Customer:

• has the responsibility to inspect and has inspected the Equipment and has determined that the Equipment is suitable for Customer’s intended use;
• understands the proper use of the Equipment;
• has been furnished and is familiar with all written instructions and manuals concerning the Equipment;

If Customer transports the Equipment, Customer has the responsibility to inspect any towing devices to be utilized in connection with the Equipment, including but not limited to all hitches and safety chains, and hauling capabilities for the Equipment tonnage prior to leaving Company’s premises.  Customer shall be liable for any damage to Customer’s vehicle or trailer used to tow or otherwise transport the Equipment.

7. FUEL:

Customer acknowledges that Company has delivered the Equipment to Customer with fuel tanks filled to 100%. Customer agrees to return the Equipment at the expiration of the rental term with the fuel tanks filled to 100% or to pay Company a refueling charge at Company’s posted refueling rate per gallon.

8. LOCATION OF EQUIPMENT; TITLE AND IDENTIFICATION:

Customer agrees to keep the Equipment at the location set forth on the Agreement and not to remove the Equipment to any other location without Company’s prior written consent.

Title to the Equipment shall at all times remain with Company.  The Equipment must not become a part of any building by being placed in the building or by being annexed to it, or otherwise become a fixture thereof.  If Equipment is annexed or affixed to any property, Customer must furnish the Company with a landlord’s release that permits the Company to remove the Equipment from the property at any time during or after expiration of this Agreement.

If Company so requests, Customer shall attach and maintain on the Equipment a conspicuous plate or marker indicating Company’s ownership of the Equipment. Company shall have the right to inspect the Equipment wherever same shall be located, from time to time.

9. USE AND OPERATION OF EQUIPMENT; MAINTENANCE DURING TERM:

While operating and in possession of the Equipment, Customer shall:

• cause the Equipment to be operated in accordance with the manufacturer’s and supplier’s instructions or manuals and any other special instructions delivered to Customer by Company at the time the Equipment is rented/leased or thereafter;
• operate the Equipment only by competent, duly qualified and trained personnel and in a safe and careful manner and in compliance with all applicable laws and regulations and the insurance policies required to be maintained hereunder;
• obtain and maintain in full force and effect all licenses, permits and other governmental approvals required for the lawful operation of the Equipment;
• maintain the Equipment in the same condition as it was upon delivery, normal wear and tear (defined below) excepted.

The Customer further agrees to:

• regularly check filters, oil, fluid levels, and tire air pressure; keep scheduled oil sample records; and otherwise maintain the Equipment per factory recommended lubrication and maintenance intervals;
• clean and visually inspect the Equipment daily;
• maintain the Equipment per factory recommended lubrication and maintenance intervals and keep scheduled oil sample records;
• immediately stop using the Equipment and notify the Company if Equipment needs repair or maintenance or is involved in an accident of any nature;
• attach the Customer’s own DOT number to any on highway vehicle requiring a DOT number rented from Company;
• monitor and track any mileage where IFTA taxes are applicable. It is the customer’s responsibility to pay these taxes;
• not alter or add to the Equipment without Company’s prior written consent.

The Customer must not:

• alter or cover up any decals or insignia on the Equipment or remove any operating or safety equipment, instructions, or manuals;
• use the Equipment in contradiction to its intended use, the operator’s manual or the terms of this Agreement;
• allow or make available to any unauthorized person use of the Equipment

The Customer agrees and acknowledges that the Company has no responsibility to inspect or maintain the Equipment during the rental/lease period or until the Equipment is returned.

The Company has the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.

All attachments, alterations or accessories shall become part of the Equipment and shall be the sole property of Company.

10. DAMAGE TO EQUIPMENT; REPAIRS:

Subject to the Rental Protection Program, as explained further herein, Customer shall be responsible to Company for all damage to the Equipment during the term, regardless of the cause of damage, and agrees to pay for loss of or repairs to the Equipment occurring during the term, whether such repairs are performed by Company or by third- parties as Company shall elect.

Customer shall immediately notify Company in the event of any damage or accident to and/or loss, theft or disappearance of the Equipment or any part thereof. Accrued rental charges shall not be applied against the cost of repair or damages to the Equipment or against reimbursement for loss regarding the Equipment. Equipment damaged beyond reasonable repair, as determined by Company in its sole discretion, shall be paid for by Customer at the Replacement Value for the Equipment when leased/rented. As used herein, “Replacement Value” refers to then-present new replacement value of the Equipment. Customer acknowledges that repair and replacement of tires or rubber tracks are not included in the rental rate and agrees to pay for the repair or replacement of any tires or rubber tracks returned to Company in a damaged condition, reasonable wear and tear excepted, regardless of the cause of the damage. Customer shall pay the Company the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. The Company shall be under no obligation to commence repair work until Customer has paid to the Company the estimated cost therefore.

The Customer will be responsible for all damages to or loss of the Equipment, regardless of cause of fault, from the time of delivery until return, including any damage during self-transit., The Customer understands and acknowledges that this includes time outside the rental period, such as when the rental period expires but the Equipment is not yet Returned.

The Customer agrees that the Company reserves the right to charge the Credit Card and/or the Customer’s account for any amount owed by the Customer due to damaged or lost Equipment.

The Customer agrees that any accrued amount paid or payable under this Agreement, including any deposits, does not apply to the payment of any amounts due for damage.

11. MALFUNCTIONING EQUIPMENT:

Customer agrees to test the Equipment prior to placing it in service, to notify Company immediately of any condition impairing the safe or effective operation or mechanical condition of the Equipment, and to refrain from using or to discontinue using the Equipment until such condition is corrected. Customer shall abide by all third-party manufacturer requirements regarding repair, maintenance, and notice.

The Company has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse, neglect, or failure to adhere to any obligations of this Agreement. The Customer must pay the Company for any such repairs or related damage.

The Company will not be liable in any event to the Customer for any loss, delay, or damage of any kind or character resulting from defects in or deficiency of the Equipment or accidental breakage thereof.

12. REASONABLE WEAR AND TEAR:

Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one-shift basis.

The following shall not be considered reasonable wear and tear:

• damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels; cavitation; or freezing;
• except where the Company expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer’s operation and maintenance manuals;
• damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment;
• damage in the nature of dents, bending, tearing, staining, corrosion, or misalignment;
• wear resulting from use in excess of shifts for which rented;
• any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry;
• rubber abrasions (gouges, tears, cuts, grooving, and removal of rubber in pieces) or damage to castings is not normal wear and tear.

13. TIME OF EQUIPMENT RETURN; CONDITION OF RETURN:

Time is of the essence in the performance of Customer’s duties under this Agreement. Any extension of this Agreement must be mutually agreed upon prior to the expiration of this Agreement.

Customer must return the Equipment upon the expiration of this Agreement in a clean condition and in the same working condition as when leased/rented, reasonable wear and tear excepted.  In the event that the Equipment is not timely returned, Customer expressly agrees to be responsible for Boyd’s then-existing daily rental charge for the Equipment for each additional day, including pro-rata daily charges based on the time of the late return.

Customer agrees to return the Equipment during Company’s regular business hours and acknowledges that the term of this Agreement shall not end (unless sooner terminated by Company) until the written acceptance of the Equipment by an authorized Company employee at Company’s place of business. In the event the Equipment is not returned during Company’s regular business hours, Customer agrees to pay for any damage to or loss of the Equipment occurring between the time of return and the beginning of Company’s next business day. Customer also agrees to pay a reasonable cleaning charge for Equipment returned dirty.

Customer expressly agrees and hereby permits the Company to charge the Credit Card and/or Customer’s account for payments owed under this Section.

14. PARKING, TOLLS, & VIOLATION FEES:

The Customer will be responsible for, and pay without delay, all parking and traffic violations, tolls and toll violations; all towing, storage, and impound fees; and all tickets incurred related to the Equipment from the time of delivery through return. Such charges will be billed to the Customer when information is received by the Company, and they may be charged to the Customer at a date later than any final invoice.

15. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY:

COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHATSOEVER, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR ANY PARTICULAR PURPOSE AND/OR MERCHANTABILITY. CUSTOMER CONFIRMS THAT IT HAS MADE (OR WILL MAKE) THE SELECTION OF EACH ITEM OF EQUIPMENT ON THE BASIS OF ITS OWN JUDGEMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY COMPANY.  

COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR: (1) ANY MATTER RELATING TO THE ORDERING, MANUFACTURE, PURCHASE, DELIVERY, ASSEMBLY, INSTALLATION, TESTING, OPERATION OR SERVICING OF THE EQUIPMENT; (2) FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED BY THE EQUIPMENT; (3) FOR ANY LOSS OR DAMAGE WHATSOEVER WHICH IS INCURRED AS A RESULT OF DELAY, OR FAILURE TO FURNISH EQUIPMENT REGARDLESS OF THE CAUSE; (4) FOR ANY DAMAGES BY REASON OF FAILURE OF THE EQUIPMENT TO OPERATE OR OF FAULTY OPERATION OF THE EQUIPMENT OR SYSTEM; OR (5) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THIS AGREEMENT, INCLUDING ANY RESULTING FROM THE INSTALLATION, OPERATION OR USE OF THE EQUIPMENT OR ANY PRODUCTS OR MATERIALS FURNISHED BY COMPANY. 

Customer additionally agrees that it will comply with any conditions set forth in, or applicable to, any applicable manufacturer’s warranty and will not take any action or provide any service upon the Equipment which would void or reduce the remedies available under such warranty.

16. INDEMNITY AND HOLD HARMLESS AGREEMENT:

CUSTOMER AGREES TO INDEMNIFY AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY AND ALL COSTS, EXPENSES (INCLUDING ATTORNEYS FEES), DAMAGES, LIABILITIES AND CLAIMS ARISING FROM OR PERTAINING TO THE USE, POSSESSION OR OPERATION OF THE EQUIPMENT BY CUSTOMER, INCLUDING ANY EXPENSE, LIABILITY OR LOSS DIRECTLY OR  INDIRECTLY RELATED TO OR ARISING OUT OF ANY INJURY TO ANY PERSON OR TANGIBLE OR INTANGIBLE PROPERTY, WHETHER ARISING FROM NEGLIGENCE OR UNDER ANY THEORY OF STRICT OR ABSOLUTE LIABILITY OR ANY OTHER CAUSE. THE AGREEMENTS AND INDEMNITIES CONTAINED IN THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.

17. RENTAL PROTECTION PROGRAM (“RPP”):

The Company offers and provides financial protection against certain Equipment damages for Customers who rent covered Equipment and do not wish to provide, or cannot provide, coverage under their own insurance policies (the “Rental Protection Program” or “RPP”).

A. Coverages: RPP covers physical damage and loss to Equipment caused by the following: accidental damage; collisions (excluding transit); falling objects; overturns; fire; storm; theft; and vandalism.

B. Limits and Deductible:

Limits:  Coverage up to $500,000 per occurrence and $500,000 per piece of Equipment, not to exceed two (2) pieces of Equipment.

Deductible:  In the event of a covered claim, Customer shall be responsible for a $2,500 deductible.

C. Customer Costs: For rentals from “Boyd CAT Rental” or power rental (as either is denoted on the quote and/or invoice), RPP is offered at a rate of 16% of the total rental charges.  For all rentals from “Boyd Heavy Equipment” (as denoted on the quote and/or invoice), RPP is offered at a rate of 17% of the total rental charges.  The RPP fee is an upfront cost to the Customer, and in the event of a claim, the Customer will also be responsible for the deductible.

D. Covered Equipment: RPP is available, and may be required, for the rental of any Equipment with a FMV equal to or in excess of $25,000.    

E. Excluded Damages: RPP does not cover damages or losses attributable to: illegal activity; contamination/environmental hazards; mechanical breakdown; wear and tear; operation or maintenance in contradiction to manufacturer specifications or these Terms & Conditions; or any personal injury or property damage.

FOR AVOIDANCE OF DOUBT, CUSTOMER EXPLICITLY AGREES THAT RPP DOES NOT COVER, PROTECT, OR PAY FOR LIABILITIES OR CLAIMS RELATED TO PERSONAL INJURY OF ANY PERSON OR DAMAGE TO ANY PROPERTY, AND THE SAME WILL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER. 

• Acknowledgement: RPP is and shall at all times be construed as a reimbursement offering.  As such, RPP does not exempt the Customer from paying damages or losses, but acts a means to limit exposure at the amounts described above.  RPP is not an insurance policy.
• When Required: RPP will be required in the event the Customer cannot provide substantially similar coverage naming Boyd as an additional insured with specific reference to the Equipment being rented.

18. CUSTOMER’S POLICIES OF INSURANCE:

Regardless of RPP, Customer agrees to maintain in effect workers’ compensation, employer’s liability, and public liability insurance in coverages and amounts satisfactory to Company. Company makes no certification to Customer concerning the Equipment’s compliance with consensus standards or other occupational or health safety standards applicable to employers or employees or to their use of the Equipment.

Unless Customer has accepted and paid for Company’s RPP, Customer also shall, at Customer’s cost, keep the Equipment insured against all risks and perils normally covered under “all risk” policies, including but not limited to loss or damage by theft, vandalism, malicious mischief, fire, windstorm and explosion, and with an extended coverage endorsement covering all such other risks and perils in an amount satisfactory to Company in which Company is named as an additional insured, as its interest may appear, and shall furnish proof of such coverage satisfactory to Company.

For all On-Highway rentals, Customer must provide Company with a valid certificate of insurance showing Company as the loss payee and additional insured.  This insurance certificate must confirm that Customer’s insurance policy has additional insured endorsement CA2001 (or equivalent) in favor of Company and has, as a minimum, 30 days’ notice to Company of cancellation or reduction of coverage.  The certificate must confirm Customer is providing physical damages coverages for the on-road truck for up to the replacement value listing Company as loss payee and a minimum of $1,000,000 of liability coverage.  Additionally, Customer acknowledges: (a) the Company will NOT provide uninsured motorists, underinsured motorists, no fault or liability coverage; (b) Customer shall NOT transport hazardous materials in the truck; (c) Customer is responsible for draining the water (drain cocks) when temperatures fall below 40 degrees.  Failure to do so will result in damages being billed to Customer; and (d) Customer must keep a copy of the Agreement in the truck for the duration of the rental.

All insurance policies acquired by Customer pursuant to this section, or acquired by Company pursuant to this Section, shall contain clauses whereby the insurer waives the benefit of all rights of subrogation which it might otherwise possess. If Customer has failed to obtain insurance coverage, or to obtain adequate insurance coverage (including inadequacy by reason of deductible clauses), Customer will be deemed to have waived any right to assert any claim or offset against Company as a result of damage to or loss of use of the Equipment which would have been a covered loss under the insurance required hereby.

19. COLLECTION COSTS:

Customer agrees to pay all reasonable attorney’s fees, court costs, and other costs and expenses incurred by Company involved in the collection of rental charges or enforcement of Company’s rights under this Agreement, whether or not suit is commenced.

20. DEFAULT AND REMEDIES:

If (i) Customer shall fail to pay any amount owing hereunder when due; (ii) Customer shall fail to perform or observe any other covenant, agreement, or condition hereunder, (iii) any representation or warranty made by Customer herein or in any document or certificate furnished to Company in connection herewith shall prove to be incorrect at any time; or (iv) Customer shall become insolvent or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver, or a trustee or receiver shall be appointed for Customer or for a substantial part of its property or for the Equipment, or reorganization, arrangement, insolvency, dissolution, or liquidation proceedings shall be instituted by or against Customer (each of the foregoing being herein called an “Event of Default”), then Company may declare the Agreement to be in default and may do one or more of the following with respect to any or all of the Equipment as Company in its sole discretion may elect, to the extent permitted by, and subject to compliance with any mandatory requirements of applicable law then in effect: demand that Customer, and Customer shall at its expense upon such demand, return the Equipment promptly to Company in the manner and condition required as if the Equipment were being returned at the expiration of the Agreement term, or Company, at its option, may enter upon the premises where the Equipment is located and take possession of and remove the same by summary proceedings or otherwise, all without liability to Customer for damage to property or otherwise. Company may exercise any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof or to rescind this Agreement. In addition, Customer shall be liable for all unpaid rent and other amounts due hereunder before or during the exercise of any of the foregoing remedies and for all legal fees, taxes, governmental charges and other costs and expenses incurred by reason of the occurrence of any Event of Default or the exercise of Company’s remedies with respect thereto.

21. PROHIBITION ON ASSIGNMENT, SUBLETTING, AND ENCUMBRANCES:

Customer may not sublet, loan or permit third parties to use the Equipment without Company’s prior written consent. If the Customer takes any such action without the Company’s written consent, such action will be deemed void.  If the Customer obtains consent from the Company to sublease or re-rent the Equipment, the Customer will remain fully obligated to the Company for the Equipment under this Agreement.

Customer shall not grant, convey, pledge or permit any mortgages, liens, security interests, claims or other encumbrances in, to or against the Equipment. Should any such lien, mortgage, security interest, pledge or other encumbrance be asserted against the Equipment, Customer agrees to immediately notify Company in writing thereof, and take all necessary steps to protect the Equipment against and to release immediately such mortgage, lien, security interest, claim, or encumbrance at Customer’s expense.

This Agreement may not be assigned or transferred by Customer without Company’s prior written consent.

22. NO AGENCY; RENTAL/LEASE NOT A SALE:

Customer acknowledges that it is not, and shall not be deemed to be, the agent or partner of or joint venturer with, Company for any purpose whatsoever. Except as may be set forth on the Agreement, Customer further acknowledges and agrees that it has no right to purchase the

Equipment or to credit any part of the rentals paid hereunder against the purchase of the Equipment.  Customer, however, authorizes Company to file precautionary UCC financing statements and similar filings and recordings with respect thereto.

23. PRIVACY STATEMENT/PRODUCT INFORMATION:

Customer consents to the collection, use, retention and disclosure of information by Company in accordance with Company’s Privacy Statement (as such statement may be revised from time to time) and agrees that such information may be accessed by the Company and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.

Customer acknowledges that if Caterpillar or other equipment that is purchased, owned or rented/leased by Customer is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition and its operation (“Telematics Information”) is being transmitted to Caterpillar Inc., its affiliates, the Company, other Caterpillar dealers, and/or other equipment manufacturers to better serve Customer and to improve products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with Caterpillar’s Privacy Statement for Telematics Devices (as such statement may be revised from time to time) (“Telematics Privacy Statement”) in addition to Boyd’s own privacy statement. Customer consents to ^–the collection, use, retention and disclosure of the Telematics Information in accordance with the Telematics Privacy Statement and agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates, its subsidiaries, the Company, other dealers, and/or other equipment manufacturers with a legitimate business reason to access it, as well as third parties who may process the Telematics Information on their behalf. As set forth in the Telematics Privacy Statement, Caterpillar or another equipment manufacturer may use Telematics Information in combination with information about Customer. Customer further acknowledges and agrees that Telematics Information may be made available to subsequent owners of equipment. Notwithstanding anything herein to the contrary, unless Customer and a vice president of Company execute a separate, written equipment monitoring agreement that expressly sets forth monitoring services elected by Customer and the charges for such monitoring services, the transmission of Telematics Information shall not impose upon the Company any obligation to monitor Customer’s equipment and/or to notify Customer of any operational, performance or other issues associated with the same.

24. MODIFICATION:

This Agreement may not be modified or amended except upon posting of revised or amended Terms & Conditions to this website or by other writing signed by Company management.

25. ATTORNEY’S FEES:

If Company commences any action with respect to the Agreement by fault of Customer, the Customer shall pay to Company all reasonable attorney’s fees and all other legal expenses (including for expert and other witnesses) paid or incurred by Company for preparation, negotiation, filing, maintenance, defense, settlement, and litigation or appeal of litigation.

26. SEVERABILITY:

If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision and Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

27. CHOICE OF LAW SUBMISSION TO JURISDICTION:

The rights and liabilities of the parties under the Agreement shall be interpreted, enforced, and governed in all respects by the laws of the Commonwealth of Kentucky excluding choice of law principles. Customer hereby consents and subjects itself to the jurisdiction of every local, state, and federal court within Jefferson County, Kentucky, agrees that except as otherwise required by law, Customer shall never file or maintain any action or proceeding in connection with this Agreement in any court outside Jefferson County, Kentucky, waives personal service of any and all process in connection therewith, and consents to the service of such process upon Customer in the manner provided in this Agreement for giving notice.     

28. ENTIRE AGREEMENT:

This agreement constitutes the entire agreement between the parties, including all representations, promises, inducements, statements and understandings, prior to and contemporaneous with the Agreement, written or oral, and supersedes any prior agreement or understanding.

29. REMEDIES:

The rights and remedies of Company under this Agreement are cumulative.

EQUAL EMPLOYMENT OPPORTUNITY/AFFIRMATIVE ACTION/OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OBLIGATIONS:

Company is a federal government contractor and subject to the requirements of the Office of

Federal Contract Compliance Programs (OFCCP). As part of Company’s compliance with Federal Equal Employment Opportunity and Affirmative Action regulations, we are required to provide our policy to all subcontractors, vendors, and suppliers and request cooperation.

Company continues its commitment in equal employment opportunity for all applicants for employment and current employees. Through Company’s Affirmative Action Program, we continue our efforts to set forth definite steps of positive action to meet legal and moral responsibilities in personnel practices.

Equal Employment Opportunity and Affirmative Action laws Company is governed by and their implementing regulations are as follows:  Executive Order 11246 (and its implementing regulations 41 CFR 60).

For more information, visit: https://www.dol.gov/ofccp/regs/compliance/ca_11246.htm

The Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (and its implementing regulations 41 CFR 60-300); for more information, visit:

https//www.dol.gov/ofccp/regs/compliance/vevraa.htm

Section 503 of the Rehabilitation Act of 1973, as amended (and its implementing regulations 41 CFR 60-741); for more information, visit: https://www.dol.gov/ofccp/regs/compliance/section503.htm