TERMS AND CONDITIONS OF EQUIPMENT LEASE JACOBUS ENERGY, INC. / QUICK FUEL FLEET SERVICES, LLC / QUICK FUEL NE, LLC ("Company")
Rev. October 12, 2016
1. Equipment. All equipment (“Equipment”) leased to you (“Customer”) by Company is subject to these terms and conditions (these “Terms and Conditions”). Customer shall keep the Equipment at the location where Company delivers same (the “Location”), and shall not remove the Equipment from the Location without the prior written consent of Company, which may be withheld in Company’s sole discretion.
2. Term. The lease granted hereby (“Lease”) may be terminated by either party upon thirty (30) days’ written notice to the other party. Upon termination of the Lease, Customer’s right to possession and use of the Equipment shall terminate and Company shall take possession of the Equipment and for the purpose thereof may enter the premises on which the Equipment is located without court order or other process of law (damages occasioned by such taking being hereby expressly waived by Customer).
3. Obligation to Purchase Fuel. During the term of the Lease, Customer acknowledges and agrees that Customer shall purchase from Company one hundred percent (100%) of the fuel to be delivered to the Equipment. In the event Customer purchases fuel from a supplier other than Company, or causes fuel to be delivered to the Equipment from a source other than Company, Company may immediately terminate the Lease and remove the Equipment and for the purpose thereof may enter the premises on which the Equipment is located without court order or other process of law (damages occasioned by such taking being hereby expressly waived by Customer).
4. Delivery / Retrieval Fees. Customer shall pay Company fees for the delivery and retrieval of the Equipment to and from the Location.
5 Installation, Repairs, Alterations. Customer shall be responsible for expenses incident to the use, maintenance and repair of the Equipment. Customer shall keep and maintain the Equipment in good and working order. All replacement parts and accessories required to maintain the Equipment in good working condition shall become the property of Company and shall be deemed to be a part of the Equipment. Customer shall not, without the prior written consent of Company, make any alterations, modifications, additions, subtractions or improvements to the Equipment, but if so consented to by Company, any such alterations, modifications, additions or improvements shall be performed by persons authorized by Company and shall become the property of Company and be deemed to be a part of the Equipment. If Customer requests Company to make any alterations, modifications, additions, subtractions or improvements to the Equipment, Company will do so at its standard hourly rate therefor, plus all costs and expenses.
6. Use. Customer shall use the Equipment solely for its intended purpose; shall permit the Equipment to be operated only by competent and qualified personnel; shall use reasonable care in operating and using the Equipment; shall operate the Equipment in accordance with Company’s guidelines therefor; and shall comply with all applicable laws, ordinances and regulations, including, without limitation, those relating to the possession, use or maintenance of the Equipment. Customer shall not sublet, mortgage, pledge, sell or otherwise encumber or dispose of the Equipment.
7. Right of Inspection. Company, with reasonable advance notice, shall have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. Customer shall promptly advise Company of any circumstances which may in any manner affect the Equipment or in any manner affect Company’s title thereto.
8. Title. Title to the Equipment shall remain with Company at all times and Customer shall have no right, title or interest in the Equipment except as expressly set forth herein. If directed by Company, Customer shall affix to the Equipment in a prominent place and maintain thereon any labels, plates or other identifying markings indicating that the Equipment is the property of Company. The Lease is intended by the parties to be a lease and not a security agreement subject to Article 9 of the Uniform Commercial Code. However, in the event the Lease or any part thereof is determined to be a security agreement and the underlying transaction is determined to be something other than a lease, including, without limitation, a sale to Customer, Customer hereby grants Company a purchase money security interest in the Equipment, and all additions and accessions thereto and proceeds and products thereof as defined in Article 9 of the Uniform Commercial Code as it may be amended, reenacted or otherwise in effect from time to time, and hereby authorizes Company, at Customer’s expense, to cause these Terms and Conditions, or any statement or other instrument showing the interest of Company in the Equipment, including Uniform Commercial Code Financing Statements, to be filed or recorded and, to the extent necessary, refiled and re-recorded.
9. Insurance. Customer, at its expense, shall keep the Equipment insured against such risks as are normally covered by an “all-risk” fire and extended coverage insurance policy, in an amount not less than the replacement value of the Equipment. Company shall be named as an additional insured on such insurance policy. Such insurance policy shall be from an insurance company that is reasonably acceptable to Company and shall not be canceled or modified without thirty (30) days prior written notice to Company. A certificate evidencing the existence thereof shall be promptly delivered to Company prior to delivery of the Equipment and upon any renewal of such policy. The insurance provisions hereof shall not be construed to limit the obligations of Customer under Paragraph 10 or 12, below.
10. Loss and Damage; Return. Until the Equipment is returned to Company’s premises, Customer shall bear the entire risk of loss, theft, damage or destruction of the Equipment and fuel contained therein from any cause whatsoever, and no loss, theft, damage or destruction of the Equipment shall relieve Customer of any obligation hereunder or the obligation to pay for the fuel. Customer shall promptly notify Company in writing of any loss or theft, and shall immediately remit payment to Company for the replacement value thereof and the fuel contained therein. Customer shall promptly notify Company in writing of any damage or destruction of the Equipment and shall immediately place the same in good repair in accordance with the terms hereof. Upon the termination of the Lease, Customer shall return the Equipment to Company, at its expense, in as good a condition as when received, considering normal wear and tear, and free and clear of all encumbrances.
11. No Warranty. Company makes no warranty with respect to the Equipment; the Equipment is provided AS IS WHERE IS. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES HEREUNDER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST SALES OR LOST TIME.
12. Indemnification. Customer shall indemnify and hold harmless Company, its affiliates and their officers, directors, employees and agents from and against any loss, damage, cost or expense (including attorneys’ fees) of any kind or nature, direct or consequential, occasioned directly or indirectly, insured or uninsured, arising out of or in connection with (i) Customer’s breach of these Terms and Conditions; (ii) any bodily injury, death, disability, property damage, or environmental liability, directly or indirectly, arising from or in connection with the Equipment or the fuel delivered or stored therein, including, without limitation, the lease, possession, use, operation, maintenance (or any delay or failure to provide maintenance) or return of the Equipment, or any act or omission of Customer with respect to the Equipment; or (iii) any loss or loss of use, theft or or damage or destruction to the Equipment or fuel, or loss of business of Company, directly or indirectly, arising therefrom or in connection therewith.
13. Independent Contractor. The relationship between Company and Customer will be that of independent contractors for all purposes, and in no event shall persons employed by either party be held or construed to be employees of the other. Each of Company and Customer will be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including, withholding of appropriate payroll taxes), workers compensation, disability benefits and the like.
14. Entire Agreement. These Terms and Conditions constitute the entire agreement between Company and Customer concerning the subject matter hereof and supersedes all prior communications, representations, warranties and covenants (whether oral or written) between Company and Customer concerning the subject matter hereof. None of these Terms and Conditions may be added to, modified, superseded or otherwise altered except by a written agreement signed by authorized signatories of Company and Customer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY TERMS AND CONDITIONS APPEARING ON ANY AGREEMENT, DOCUMENT OR INSTRUMENT OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER, ACKNOWLEDGMENT OR WEBSITE OF CUSTOMER, ARE REJECTED IN THEIR ENTIRETY BY COMPANY AND CUSTOMER AND SHALL HAVE NO EFFECT ON THESE TERMS AND CONDITIONS.
15. Miscellaneous. The provisions of these Terms and Conditions concerning warranties, indemnities, governing law and jurisdiction shall survive the termination of the Lease. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. Customer may not assign or otherwise transfer its rights, interests or obligations under these Terms and Conditions. Except as otherwise provided for hereunder, no waiver of any term, provision or condition of these Terms and Conditions whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such term, provision or condition. Company and Customer agree that, if any provision of these Terms and Conditions shall, under any circumstances, be deemed invalid or inoperative, these Terms and Conditions shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of Company and Customer shall be construed and enforced accordingly.
16. Governing Law; Jurisdiction. THESE TERMS AND CONDITIONS AND THE LEASING OF THE EQUIPMENT AND ALL DISPUTES ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. EACH OF COMPANY AND CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS LOCATED IN THE STATE OF WISCONSIN, COUNTY OF MILWAUKEE, IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.