MPS shall mean MPS Enterprises, Inc., Milford Pipe & Supply or any other affiliated entity reflected on the front of the invoice, sales contract or rental contract.
RENTAL CONTRACT TERMS AND CONDITIONS (APPLIES TO RENTALS ONLY)
1. INSPECTION, REPAIRS AND MAINTENANCE: MPS is required to supply the equipment in good operating condition. Customer acknowledges by signing this contract that he has personally inspected the equipment, has received instructions regarding the safe use of the equipment, including manufacturers safety warnings and instructions if any, and accepts the equipment as being suitable for Customer’s needs and in good operating condition. Customer agrees that it will pay all cost of repairs during this rental period including labor, materials, parts and other items, except for normal wear and tear. “Normal wear and tear” is defined wear and tear incident to use during normal conditions and when operated by qualified personnel. Customer agrees not to cover, alter, substitute or remove any identification insignia displayed on the equipment. Customer agrees that it shall prevent the equipment from being abused, overloaded or used beyond its capacity.
2. REPLACEMENT OF MALFUNCTIONING EQUIPMENT: If the equipment becomes unsafe or in disrepair, Customer agrees to discontinue use and notify MPS immediately. MPS will replace the equipment with similar equipment in good working order, if available, when the equipment has become unsafe or in disrepair as a result of normal use. MPS is not responsible for any incidental or consequential damages caused by or related to the equipment rental. Customer shall not attempt to repair the equipment.
3. INDEMNITY AND HOLD HARMLESS AGREEMENT: Customer agrees to and shall indemnity and hold harmless MPS, its officers, agents and employees from and against any and all claims, losses damages, causes of action, suits and liabilities of every kind, including expenses of litigation, court costs and attorneys fees, arising out of any injury to or death of any person, or for damage to any personal or real property, arising out of or in connection with the use of the equipment or any breach of this contract by Customer, regardless of whether such injuries, death or damages are caused in whole or in part by the negligence of any agent or employee of MPS. IT IS THE EXPRESSED INTENTION OF CUSTOMER AND MPS THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL PROTECT MPS FROM THE CONSEQUENCES OF MPS’S OWN NEGLIGENCE REGARDLESS OF WHETHER SUCH NEGLIGENCE IS THE SOLE OR CONTRIBUTING CAUSE OF THE INJURY, DEATH OR DAMAGE.
4. PROHIBITED USES: Customer agrees that the equipment shall be used only by persons competent in the operation of such equipment and further agrees that he is solely responsible for providing competent operators. THE FOLLOWING USES OF THE EQUIPMENT IS PROHIBITED AND SUCH USE CONSTITUTES A BREACH OF THIS CONTRACT: (a) Use for illegal purpose or in an illegal manner; (b) Use when the equipment is in disrepair or is unsafe; (c) Improper or unintended use or misuse; (d) Use by anyone other than Customer or its employees without MPSs written permission; and (e) Use at any location other than the address furnished to MPS without express written permission.
5. ASSIGNMENTS, SUBLEASES AND LOANS OF EQUIPMENT: MPS may assign its rights under this contact without Customer’s consent. Customer may not sublet or loan the equipment without MPSs express written permission. Any purported assignment by Customer is VOID and constitutes a breach of this Contract.
6. TIME OF RETURN: Customer’s right to possession terminates on the expiration of the rental period and retention of possession after this time constitutes a material breach of this contract. Time is of the essence of this contract. Any extension must be mutually agreed upon in writing.
7. UNCLEAN, DAMAGED OR LOST EQUIPMENT: Customer agrees to pay for any unclean, damaged or lost equipment including, but not limited to: (a) Loss or theft of accessory equipment such as, leads, electrical cords, heaters, facers, batteries, hoses, etc.; (b) Loss by willful neglect or abuse; (c) Mysterious or unexplained damage or disappearance; (d) Theft by person(s) entrusted with the equipment; and (e) Damage due to neglect, abuse, or misuse of the equipment regardless of cause, except reasonable wear and tear, during the rental period. Customer also agrees to pay a reasonable cleaning charge for equipment returned unclean. Accrued rental charges cannot be applied against the purchase or cost of repairs of damaged or lost equipment. The cost of replacing equipment damaged beyond repair shall be paid by Customer. The cost of repairs will also be paid by Customer, regardless of whether such repairs are completed by MPS or a third-party repair service. Customer agrees to furnish MPS a POLICE REPORT on all LOSSES.
8. SUIT, COLLECTION COSTS and VENUE: Customer agrees that any suit to enforce any obligation of Customer under this contract or at law may be brought against it in MIDLAND COUNTY, TX. Customer agrees to pay all reasonable costs of collection of the charges or enforcement of MPS’s rights under this contract.
9. REPOSSESSION: Upon a failure to pay rent or any other breach of this contract, MPS may terminate this contract and take possession of the equipment from wherever it is located and MPS and his agents shall not be liable for any claims for damages or trespass arising from the removal of the equipment.
10. LOADING AND UNLOADING EQUIPMENT: Customer is responsible for loading and unloading the equipment. If MPS’s agent or employees assist in loading or unloading the equipment Customer agrees to assume the risk of an hold harmless MPSs agents and employees for any property damage that are caused in whole or in part by the negligence of MPS its agents or employees.
11. DELIVERY AND PICKUP: Customer agrees to notify MPS of delivery and/or pickup of equipment by MPS a minimum of 24 hours before equipment is to be delivered or picked up and customer shall have equipment available for pickup a minimum of 3 hours prior to MPSs normal closing time. MPS will only deliver or pick up equipment during MPSs regular business hours and in accordance with this paragraph.
12. DISCLAIMER OF AGENCY: Customer acknowledges that he is not the agent of MPSs for any purpose.
13. TIRE REPAIR OR REPLACEMEMT: Customer acknowledges that the cost of repair and replacement of tires is not included in the standard rental rate and agrees to pay for the repair or replacement of any tires returned to the MPS in a damaged condition as determined by MPS regardless of the cause of the damage, with the exception of normal wear and tear as determined by MPS.
14. DISCLAIMER OF MANUFACTURER: Customer understands and acknowledges that MPS is neither the manufacturer of the equipment nor the agent of the manufacturer.
15. TITLE TO EQUIPMENT: All equipment rented by Customer shall remain the property of MPS even while in the possession of Customer. By executing this Contract, Customer has not acquired any rights of ownership in the equipment.
16. SEVERABILITY: The provisions of the Contract shall be severable so that the invalidity, unenforceability or waiver of any of the provisions or portions thereof shall not affect the remaining provisions or portions thereof.
17. NOTICE OF NON WAIVER: The failure of the MPS to insist upon strict performance by Customer of the conditions and terms of this Contract shall not constitute a waiver of MPSs rights under this Contract or at law.
18. INTEGRATION: This Contract comprises the entire agreement between the parties and it is acknowledged that there are no understandings, representations, warranties or promises verbal or otherwise pertaining to this Contract or to the equipment which are not incorporated herein.
INVOICE TERMS AND CONDITIONS (APPLIES TO ALL SALES AND RENTALS)
1. ACCEPTANCE. THE ACCEPTANCE OF CUSTOMER’S ORDER IS SUBJECT TO ALL TERMS AND CONDITIONS SET FORTH HEREIN, ALL OF WHICH ARE ACCEPTED BY CUSTOMER AND SUPERSEDE CUSTOMER’S ORDER FORM AND ACKNOWLEDGEMENT IF ANY, AND SHALL CONSTITUTE THE ENTIRE CONTRACT BETWEEN CUSTOMER AND MPS. This document shall become a contract either when at MPS’s option, (a) Customer shall have placed an order with MPS and/or given to MPS specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any parts of the goods herein described, or (b) when Customer has received delivery of the whole or any part of such goods, or (c) when Customer has otherwise assented to the terms and conditions hereof either in writing, orally, or by conduct. No communication, prior or subsequent hereto, shall act to modify, amend, or reject any term or condition stated herein unless expressly agreed to in writing by a duly authorized officer of MPS.
2. ALTERATION OF TERMS. Changes in the terms and conditions herein shall not be binding on MPS unless made in writing and executed by a duly authorized officer of MPS.
3. PAYMENT. Payment is due from Customer on the following terms: net 30 days, unless otherwise agreed to in writing, by both parties. All payments not made by the due date shall bear interest at a rate of one and one half (1 1/2) percent per month on the unpaid balance. Further, Customer shall reimburse and indemnify MPS for any costs of collection incurred in collecting any past due sums, including court fees, out-of-pocket expenses, and reasonable attorney’s fees.
4. SHIPMENT AND RISK OF LOSS. Customer shall accept the goods F.O.B. MPS’s facility, unless otherwise agreed to in writing, by both parties. Method and route of shipment are at MPS’s discretion unless Customer supplies explicit instructions otherwise. All expenses and risk of loss for any damages incurred in the transportation of goods, including but not limited to any risk, of loss of loading or unloading, shall be born solely by Customer, unless otherwise specified in writing by a duly authorized officer of MPS. All Claims for loss, damage, or delay against the carrier must be made by Customer. Customer shall accept partial delivery of any order, and, any defect therein or failure to make any subsequent partial delivery shall be severable, and shall not constitute a breach of the entire Contract.
5. DELAYS AND DAMAGES. MPS shall endeavor as far as practicable to make deliveries in accordance with this Contract, but if for any cause MPS shall fail to make such deliveries, or shall fail to make them within the time stated herein, or shall cancel any order. MPS shall not be liable for any loss or damage resulting from any such failure or delay in delivery, or from any such cancellation, or for loss of use, or for any loss of profits.
6. INSPECTION. Customer agrees to inspect all goods upon delivery and must notify MPS within 48 hours of any non-conforming goods, damaged, missing or inaccurate goods pursuant to the terms and conditions. Customer waives his rights if he elects not to make such inspection.
7. REJECTION OF NON-CONFORMING GOODS. Any rejection of goods for being non-conforming, damaged, missing or inaccurate must be made immediately after delivery at the place of destination by Customer notifying MPS and confirming the rejection in writing within 48 hours after delivery at the place of destination. Such notification shall identify each and every alleged non-conformity of the goods and describe that portion of the shipment being rejected. MPS shall then respond with instructions as to the disposition of the goods. If Customer fails to give such notice, or if Customer uses the goods in any manner inconsistent with the rights of MPS, the goods shall be deemed to conform with the terms of the Contract in all respects and Customer shall be bound to accept and pay for the goods in accordance with the terms hereof. ALL MERCHANDISE RETURNED FROM CUSTOMER TO MPS MUST BE IN THE ORIGINAL MPS OR MANUFACTURER CONTAINER AS SHIPPED TO CUSTOMER. RETURNED MERCHANDISE IN ANY CONTAINER, OTHER THAN THAT ORIGINALLY SHIPPED TO CUSTOMER, WILL NOT BE ACCEPTED BY MPS.
8. CANCELLATION OR OBSOLESCENCE. Any order accepted by MPS may be cancelled by Customer only upon written approval of MPS by a duly authorized representative of MPS. Customer shall reimburse MPS for any and all expenses incurred by MPS in connection with such order, including inventory on hand or on order and finishing completed or in process tooling and engineering.
9. LIMITED WARRANTY AND LIMITATION OF REMEDY AND DAMAGES. MPS warrants the goods DELIVERED UNDER THIS CONTRACT to be free from defects in materials and workmanship under normal use and service for (30) days from the date of shipment and will, at its option, repair or replace any goods that are shown to be defective in materials or workmanship within such thirty (30) day period upon written notification from Customer clearly identifying each and every defect and providing for inspection of such goods at MPS’s offices. MPS’s obligation with respect to such goods will be limited to replacement or repair of such goods, at MPS’s sole option. IN NO EVENT SHALL MPS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR TRANSPORTATION, INSTALLATION, ADJUSTMENT, OR OTHER EXPENSES, WHICH MAY RISE IN CONNECTION WITH THE GOODS. Any abuse or misuse of the goods by Customer voids this limited warranty.
THE FORGOING LIMITED WARRANTIES ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. INDEMNIFICATION. Customer hereby agrees to defend, indemnify and hold harmless MPS, and its agents and employees, from any claims, damages or expenses, including reasonable attorney fees, arising or alleged to arise from: (1) any asserted deficiencies or defects in the goods caused by alteration thereof made by Customer with or without MPS’s consent, or the improper handling or storage by Customer; (2) the breach ofany term stated herein; or, (3) the act or omission of Customer; irrespective of whether such claim, damage or expense is caused, or alleged to be caused, in part by the joint, several, comparative, (but not sole), negligence, breach of contract or warranty, or any other breach of duty by MPS whether asserted under a negligence, a strict or any other product liability theory, or any other legal theory.
11. NON-PERFORMANCE. Neither party hereto shall be liable to the other for failure to perform its obligation hereunder, in whole or in part, when performance is prevented by flood, drought, fire, or any another casualty, war, riot, insurrection, acts of God, restriction or interference by any government, or governmental agency, strike, work stoppage or slowdown, or any cause beyond the control of the party failing to perform. Any suspension of performance by reason of this section shall be limited to the period during which cause of failure exists.
12. VENUE. Any and all actions which may be brought in court for any claim or controversy arising under this Contract shall be filed and maintained only in a State or Federal court of appropriate jurisdiction located in Midland, TX.
13. GOVERNING LAW. This Contract shall be governed by all applicable laws as adopted and construed in the State of Texas.
14. SEVERABILITY. In the event that any provision hereof shall be found to be invalid or unenforceable, the remaining portions of this contract shall remain in full force and effect as if the invalid or unenforceable portion were not a part of this contract when it was executed.
15. WAIVER. No delay or failure on the part of MPS in exercising any right, privilege or remedy shall operate as a waiver of such or of any other right, privilege or remedy, and no waiver whatever shall be valid against MPS unless in writing by a duly authorized officer of MPS and then only to the extent set forth therein. No waiver by MPS of any breach of this contract by Customer shall be deemed a waiver of any prior or subsequent breach of the same or any other provision of this contract.
16. HEADINGS. Section and other headings contained in this document are for reference purposes only and shall not affect, in any way, the meaning or interpretation of this document.
17. ASSIGNMENT. No assignment of this contract or the rights and obligations hereunder shall be valid without the express written consent of both parties.
18. MERGER CLAUSE. This document contains the entire understanding and agreement of the parties upon the subject matter hereof. There is no agreement, oral or otherwise, which is not set forth in this writing and neither parole nor extrinsic evidence shall be introduced to explain or change the terms of this Contract.
19. UNITED STATES OF AMERICA CUSTOMS COMPLIANCE NOTICE TO SUBSEQUENT PURCHASER OR REPACKER. As to any articles covered by this invoice, the requirements of 19 U.S.C. 1304 AND 19 CFR Part 134 provide that the articles of their containers must be marked in a conspicuous place as legibly, indelibly and permanently as the nature of this article of container with permit, in such a manner as to indicate to the ultimate purchaser in the United States and the English language name of the country of origin of the article.
20. This rental Invoice will be billed at the end of the current month. If any equipment rented from MPS is retained for any period beyond the initial rental period, you agree that the signature below will be considered valid and enforceable for all subsequent invoices arising from or related to the rented equipment. The rental invoices for each subsequent month will reflect the same invoice number, but will also include an additional letter representing each subsequent month of the rental period (i.e. A, B, C, D, etc.).
21. REPRESENTATIONS MADE BY MPS: All representations regarding any equipment, materials, or other goods rented or sold by MPS, including, but not limited to, representations regarding the quality and specifications of the equipment, materials or goods sold or rented by MPS, and the fitness for a particular purpose or the merchantability of the equipment, material or other goods, are based solely on information provided to MPS by the manufacturer of the equipment, materials, and goods. Customer shall use its own expertise and independent judgment of the engineering and design of the systems or applications in which Customer intends to use products supplied by MPS. Although MPS may assist Customer by providing Customer with product specifications, Customer shall use its own expertise and independent judgment in determining which product is best suited for Customer’s system or application. MPS shall not be liable to Customer for damages of any kind relating to the design of Customer’s system or application of products sold by MPS or for Customer’s use of the product that is not adequate for or properly adapted to Customer’s system or application.
22. DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES AND LIMITATION OF LIABILITY: THE CONTRACT DOES NOT CREATE ANY EXPRESS OR IMPLIED WARRANTIES. THE AGREEMENT BETWEEN CUSTOMER AND MPS FOR THE SALE OR RENTAL OF EQUIPMENT, MATERIALS, GOODS OR SERVICES IS BEING MADE WITH THE EXPRESS UNDERSTANDING THAT MPS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, MPS IS NOT LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGES, COST OF REPAIRS OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, USE OF OR REPAIR OF THE PRODUCTS SOLD AND/OR RENTED BY MPS. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCE AND IN NO EVENT, SHALL MPS’S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE PRODUCT.