Terms and Conditions
Mason acknowledges that the MULE is being leased to Mason, with the understanding that Mason will operate the equipment and be solely responsible for the overall wall quality and ensuring that the wall meets all specified requirements. Mason shall be required to supply:
A power source for the MULE. Plug in the power cord to a 110V/20A power source, manufacturer recommends the use of a Honda EB2800i inverter generator for use with the MULE.
While the MULE is under lease to Mason, Mason shall be solely responsible to maintain the same in operating condition. While there may be some damage or failure of the MULE beyond the skills of the Mason to resolve, CR shall not be held responsible for loss of time, labor, or material, lost profits and/or other damages, such as delay damages, for which the Mason may be liable under agreements with third parties, due to mechanical failure or incidental breakdown, even if the MULE is being operated by or at the direction of CR under this agreement, or under a separate service agreement between the parties.
Mason shall maintain the MULE and any other leased equipment in good operating condition, repair and appearance and protect the same from deterioration other than normal wear and tear, shall use the equipment in the regular course of business only, within its normal capacity without abuse and in a manner contemplated by CR, shall comply with the laws, ordinances, regulations, requirements and rules with respect to the use, maintenance and operation of the equipment, shall not make any modification, alteration, or addition to the equipment (other than normal operating accessories or controls which shall when added to the equipment become the property of CR) without the prior written consent of CR, which may be withheld in the sole discretion of CR, and shall not so affix the equipment to realty as to change its nature to real property or fixture, and agrees that the equipment shall remain personal property at all times, regardless of how attached or installed, shall keep the equipment at the Project site shown above and shall not remove the equipment without the consent of CR.
Specific Use Issues
Mason shall inspect the MULE on the date it reaches the Project site. Unless, by 9:00 a.m. on the following day, Mason gives written notice to CR, specifying any defect in or other proper objection to the condition of the equipment, it shall be conclusively presumed, as between CR and Mason, that the MULE was delivered in proper operating condition as required by the terms of this agreement.
While Mason has the MULE under this lease, CR shall have the right at any time to enter the Project site and shall be given free and unrestricted access to the MULE for the purpose of inspection.
Mason shall not remove, alter, disfigure or cover up any numbering, lettering, or insignia displayed upon the equipment, and shall see that the equipment is not subjected to careless, unusually or needlessly rough usage; and Mason shall at his own expense maintain the equipment and its appurtenances in good repair and operative condition, and return it in such condition to CR, ordinary wear and tear resulting from proper use thereof alone excepted.
The expense of all repairs due to damage made during the Rental Period, including labor, material, parts and other items shall be paid by Mason.
Mason shall not sublet, license, assign or transfer any interest in this Lease, nor shall it allow any third party, other than its employees, to use and operate the MULE.
Mason shall, at all times, be liable to CR for loss and/or damage to the MULE, and/or to any accessories supplied by CR, and any other property, material, or equipment belonging to CR while said equipment, material, or property is in Mason’s care, custody, control or under Mason’s physical control.
Mason acknowledges that any loss or damage to the MULE will cause significant monetary losses to CR, both for the repair and/or replacement of the equipment and the loss of future rental opportunities and Mason shall be liable to CR for all such losses. Therefore, prior to the commencement of the Rental Period, and at all times while this lease is in effect, Mason shall carry and maintain, in a form acceptable to CR, with A.M. Best rating of at least A- (excellent) insurance coverage, from an insurance provider qualified to do business in the state in which the Project is located with the coverages set forth below. MASON AGREES, TO THE FULLEST EXTENT ALLOWED BY LAW, TO DEFEND, INDEMNIFY AND HOLD HARMLESS CR, ITS PRINCIPALS, MEMBERS AND OFFICERS, FROM AND AGAINST ALL CLAIMS, ALLEGATIONS, SUITS, ACTIONS, INJURIES, DAMAGES, AND/OR EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES, TO THE EXTENT THE SAME RESULT FROM MASON’S USE OR POSSESSION OF THE MULE, WITHOUT LIMITATION, TOTAL DAMAGES FOR ANY INJURY TO ANY CR EMPLOYEE OR OTHER PERSON OR DAMAGE OR DESTRUCTION OF PROPERTY, INCLUDING THE MULE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ITS MAINTENANCE, USE OR OPERATION OF THE MULE. This insurance will include defense and indemnity for CR, to the extent of any liability attributable to the Mason or any entity for which it is legally responsible or vicariously liable. Proof of this insurance shall be provided to CR before the commencement of the Rental Period. To the extent that the Mason permissibly subcontracts with any other entity or individual to perform all or part of the Mason’s work with the MULE, the Mason shall require such subcontractors, prior to the commencement of the Rental Period, to furnish evidence of equivalent insurance coverage that includes in all respects the same terms and conditions as set forth herein. In no event shall the failure to provide this proof, prior to the commencement of the Rental Period, be deemed a waiver by CR of the Mason’s insurance obligations set forth herein. In the event that the Insurance Company(ies) issuing the policy(ies) required by this lease agreement deny coverage to CR, the Mason will, upon demand by CR, defend and indemnify CR at the Mason’s expense. The required insurance coverages shall be:
• Commercial General Liability Insurance
• $1,000,000 Each Occurrence Limit (Bodily Injury and Property Damage) $2,000,000 General Aggregate per Project
• $2,000,000 Products & Completed Operations Aggregate
• $1,000,000 Personal and Advertising Injury Limit Business or Commercial Automobile liability insurance
• $1,000,000 Combined Single Limit per accident
• Workers’ Compensation and Employers’ Liability Insurance
• $500,000 Each Accident; $500,000 Each Employee for Injury by Disease; $500,000 Aggregate for Injury by Disease
• Excess or Umbrella Liability (to overlay Employer’s Liability, Automobile Liability and Commercial General Liability coverages)
• Additional Required Coverage
• Leased, Hired or Borrowed insurance coverage with limits of no less than
• $500,000 per accident, naming CR, as loss payee and as additional insured.
Upon CR’s request, Mason shall provide CR with a certificate of insurance and/or the insurance policy evidencing the insurance coverage specified in this agreement.
IN NO EVENT SHALL CR BE LIABLE TO MASON OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, DELAY DAMAGES, LOST PROFITS OR LOSS OF REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT (INCLUDING ANY DELAYS IN DELIVERING THE MULE, AND/OR ANY OTHER EQUIPMENT AND/OR SERVICES), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY CR, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CR’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID BY MASON TO CR PURSUANT TO THIS AGREEMENT.
Except in the case of CR’s gross negligence or willful misconduct, Mason shall indemnify CR against, and hold CR harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorney’s fees, arising out of, connected with, or resulting from the MULE, and other equipment supplied by CR, and/or the Lease, including without limitation, any and all liability for property damage, personal injury, disability, and death of workmen and other persons caused by the operation, use, control, handling, or transportation of the MULE and any other the equipment used during the Rental Period.
CR shall not be responsible for loss or damage to property, material, or equipment belonging to Mason, its agents, employees, suppliers, or anyone directly or indirectly employed by Mason while said material property, or equipment is in CR’s care, custody, and control or under CR’s physical control. Mason is encouraged to obtain appropriate equipment, material, or installation floater insurance against such risk of loss. Mason and its insurers waive all rights of subrogation against CR for such losses.
CR Optional Involvement in the Use of the MULE
For and in consideration of the mutually agreeable fees to be paid in the manner approved by the parties under a separate service agreement, CR may, in its sole discretion, agree to supply the following services:
Delivering the MULE to the Project site and returning it to CR at the end of the lease term.
Training the Mason’s personnel on MULE basic operation and best practices.
Performing any required maintenance on the MULE;
Providing instructions for moving MULE onsite.
Performing any required repairs, and installing replacement parts, to the MULE.
CR shall be entitled to provide any and all of the foregoing services through the use of its employees, and/or independent agents and/or contractors, in its sole discretion, and without prior notice to Mason.
Unless otherwise mutually agreed in writing, if CR supplies any of the foregoing services, CR shall hold Mason harmless from liability for the salary and/or wages and for all other applicable employee benefits, including, workmen’s compensation insurance and pay all payroll taxes required by law, which apply to the individuals providing the services.
Mason expressly agrees that it shall not solicit and/or hire, directly or indirectly, any CR employee, independent agent, and/or contractor supplied by CR hereunder for purposes of performing any of the services of the types supplied by under this agreement or under a separate service agreement, at any time within one (1) year from the date such employee, independent agent and/or contractor last performed such services at a Project involving Mason.
Default, Access to, and Return of the Equipment
CR shall at all times retain ownership of and title to the MULE, MULE accessories, and any other equipment it supplies hereunder. Mason shall give CR immediate notice in the event that any of said equipment is levied upon or is about to become liable or is threatened with seizure, and Mason shall indemnify CR against all loss and damages caused by such action.
If (a) Mason shall default in the payment of any rent or in making any other payment hereunder when due, or (b) Mason shall default in the payment when due of any indebtedness of Mason to CR arising independently of this lease, or (c) Mason shall default in the performance of any other covenant herein and such default shall continue for five days after written notice hereof to Mason by CR, or (d) Mason becomes insolvent or makes an assignment for the benefit of creditors, or Mason applies for or consents to the appointment of a receiver, trustee, or liquidator of Mason or of all or a substantial part of the assets of Mason under the Bankruptcy Act, or any amendment thereto (including, without limitation, a petition for reorganization, arrangement, or extension) or under any other insolvency law or law providing for the relief of debtors, then, if and to the extent permitted by applicable law. CR shall have all rights afforded to it under law. In addition to all other rights and remedies it may have, CR:
Shall be entitled to take possession of and physically remove the equipment from the Project site, without notice, and retake possession of any or all items of the equipment without demand, notice, or legal process, wherever they may be located. Mason hereby waives any and all damages occasioned by such taking of possession. Any said retaking of possession shall not constitute a termination of this lease as to any or all items of equipment unless CR expressly so notifies Mason in writing;
Shall be entitled to declare the entire amount of rent hereunder immediately due and payable as to any or all items of the equipment, without notice or demand to Mason;
May sue for and recover all rents, and other payments, then accrued or thereafter accruing, with respect to any or all items of the equipment;
May terminate this lease as to any or all items of equipment;
May pursue any other remedy at law or in equity.
All remedies of CR hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of CR to exercise and no delay in exercising, any right or remedy, hereby shall operate as a waiver thereof; nor shall any single or partial exercise by CR of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. If any term or provision of this lease is found invalid, it shall not affect the validity and enforcement of all remaining terms and provisions of this lease.
Mason shall pay CR all costs and expenses, including attorneys’ fees, incurred by CR in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions, or provisions hereof.
Notwithstanding any said repossession, or any other action which CR may take, Mason shall be and remain liable for the full performance of all obligations on the part of Mason to be performed under this Lease.
This Agreement is governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Maryland.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
This instrument constitutes the entire agreement between CR and Mason and it shall not be amended, altered or changed except by a written agreement signed by the parties hereto.