TERMS AND CONDITIONS FOR LEASING EQUIPMENT & SERVICES
1. Agreement. These terms and conditions for lease of Equipment and Services (“Terms and Conditions”) are incorporated by reference and made a part of the quote (“Order”) submitted by Customer as if fully set forth therein. The agreement is between ARE Structures Incorporated, a Minnesota corporation with address at 1041 Grand Ave #213, St Paul, Minnesota 55105 (“ARE Structures”) and the party set out in the Order (“Customer”). The agreement shall be comprised of the Order, these Terms and Conditions, and, if applicable, any additional Schedule (each, a “Schedule”) for the Lease of Equipment and/or Services entered into by and between the parties (collectively, the “Agreement”.) The Agreement supersedes any previous agreements for the lease of ARE equipment and/or Services. If there is a conflict among these terms, the terms shall have the following order of priority: (i) first, the Order; (ii) second, the Terms and Conditions; (iii) third, any Schedules, if applicable. Any purchase order or similar document issued by the Customer, even if it contains additional or different terms, will not modify this Agreement, unless expressly agreed to in writing by ARE Structures.
2. Description of Equipment and Services. ARE Structures hereby leases Equipment to Customer in accordance with the terms and conditions of this Agreement and such Equipment shall be identified on the Order (“Equipment”) and any Schedules incorporated by reference. ARE Structures may provide services to Customer for installing and decommissioning the Equipment (“Services”) and such Services are in addition to Rent, as defined below.
3. Rent and Other Fees. Customer agrees to pay to ARE Structures, as rental for the Equipment, the Rent set out in the Order (“Rent”). ARE Structures shall issue an initial invoice to Customer and the initial invoice shall be due and payable prior to shipping the Equipment to the location of the Equipment (“Location(s)”). ARE Structures shall issue all subsequent invoices as of the first day of each month and such invoices shall be due and payable on or before the tenth (10th) day of each month of the Term. The obligation to pay Rent shall commence as of the first day of Rental Period (as defined in Section 4) and shall continue for the entire Rental Period. In addition to Rent, Customer shall be responsible for all taxes, state or local, that may be assessed or levied or otherwise arise out of the rental of the Equipment. In addition to Rent, ARE Structures shall invoice Customer for the actual cost of delivery of the Equipment to a Site Location. In the event that Customer does not make payment of any Rent or other monies due hereunder within five (5) days of its due date, Customer shall be liable to ARE Structures for a late payment fee of the greater of (i) one hundred fifty dollars ($150.00) or (ii) ten percent (10%) of the past due balance from the date due thereof, and Customer shall pay such amounts promptly to ARE Structures.
4. Term. The Rental Period shall set out in the Order (“Rental Period”), which will commence on the Effective Date. After the Rental Period, this Agreement will automatically renew on a monthly basis (each, a “Renewal Rental Period”). ARE Structures shall have the right to adjust the rent during the Renewal Rental Period upon written notice to Customer.
5. Payment Terms. Payment Terms shall be set out in the Order, and all payments shall be made in U.S. dollars.
6. Default. Customer shall have the right to quiet use and enjoyment of the Equipment provided that Customer is not in default hereunder. Any of the following events shall constitute an event of default under this Agreement (each, herein, an “Event of Default”):
6.1. The failure by Customer to pay the Rent or other monies when due if such failure continues for five (5) or more days after receipt of written notice thereof from ARE Structures; or,
6.2. Default by Customer in the performance of any other term, provision or covenant of this Agreement,andCustomerfailstocuresuchdefaultwithinthirty(30)daysafterreceiptofwritten notice thereof from ARE Structures;
6.3. If any representation or warranty made by Customer to ARE Structures in connection therewith shall prove to be incorrect, false, and/or misleading at any time in any material respect;
6.4. If Customer fails to furnish to ARE Structures with a certificate of insurance as required in Section 10 within seven (7) days after written notice from ARE Structures; or
6.5. Immediately and without notice from ARE Structures, if any of the following events occur voluntarily by or involuntarily to the Customer:
6.5.1. . Customer makes an assignment for the benefit of creditors, or if either is named as a debtor in a petition in bankruptcy in the U.S. Bankruptcy Code, as amended, or, there is an admission by Customer in writing of its inability to pay its debts as those debts become due, or the filing by Customer of a voluntary petition in bankruptcy or any other petition or answer seeking for itself any reorganization, liquidation, dissolution, receivership, insolvency, or any other debtor relief generally under any present or future law, statute, or regulation, or the filing of any answer by Customer admitting, or the failure of Customer to deny, the material allegations of a petition filed against it for any such relief; or the adjudication of Customer as bankrupt or insolvent; or the seeking or consenting to or acquiescence in, by Customer, of the appointment of a trustee, receiver, or liquidator of Customer or its property;
6.5.2. Customer encumbers, pledges, or otherwise conveys or transfers the Equipment, or any portion thereof, to a third-party, as security or otherwise, except as otherwise permitted hereunder; or
6.5.3. Customer defaults on any land lease agreement for real property on which the Equipment is situated.
6.6. Upon the occurrence of any Event of Default, ARE Structures, at its option, may declare the Customer, in default and exercise one or more of the following remedies (“Remedies”), each without any presentment, demand, protest, or further notice (all of which are hereby expressly waived by Customer):
6.6.1. Terminate this Agreement and Customer’s rights thereunder;
6.6.2. Proceed by appropriate suit, action or other proceeding, at law or in equity, to enforce payment and performance by Customer of its covenants and other obligations under this Agreement to recover from Customer, all damages and expenses that ARE Structures sustained by reason of Customer’s default in the enforcement of the Remedies hereunder; and/or
6.6.3. Recover all amounts due on or before the date ARE Structures declared the Agreement in default, plus, upon written notice from ARE Structures, accelerate the obligations of the Customer and at ARE Structures option, Customer shall pay the sum of all unpaid Rent that, absent the default, would have been payable thereunder for the remainder of the Rental Period plus any other obligations due or accrued hereunder (including without limitation interest accruing at 1% per month from the date of the default to the date of payment), and Customer shall, upon written demand by ARE Structures, allow ARE Structures personally or by its agent, at its option and without any legal process, to enter upon location where such Equipment is located and take immediate possession of and remove the same. The exercise of these Remedies by ARE Structures shall not constitute a termination of this Agreement unless ARE Structures notifies Customer in writing. Customer shall be liable to ARE Structures for all costs, fees, interests, and expenses (including, without limitation, reasonable attorneys’ fees incurred by ARE Structures in enforcing any of their rights and Remedies set forth herein).
7. Post-Termination
7.1. Decommissioning. Upon the termination or expiration of the Agreement, Customer is responsible for decommissioning the Equipment. If Customer elects to decommission the Equipment itself or through any third party other than as coordinated by ARE Structures, Customer shall be fully responsible for any and damages to the Equipment resulting from the decommissioning. Customer shall be responsible for shipping and insurance costs to return the Equipment to a warehouse designated by ARE Structures (“Decommissioning Expenses”).
7.2. Release of ARE Structures. Customer releases ARE Structures from any claims of damage to the real property upon which the Equipment was 8. Customer Obligations
8. Customer Obligations
8.1. Installation. Customer shall, at its sole cost and expense, responsible for complying with ARE Structures policies and procedures, for installing the Equipment. If Customer elects to install the Equipment itself, it shall provide ARE Structures a written copy of the completed installation checklist and photographs and/or video evidence of Customer’s installation process. Customer shall provide at least 120 hours’ notice to ARE Structures prior to installing the Equipment. Customer shall be responsible for obtaining any required permits.
8.2 Location. The Equipment shall be located at the Location set out in the Order. Customer shall not change the Location of any Equipment without the prior written consent of ARE Structures and such consent shall not be unreasonably delayed, denied, or conditioned.
8.3 Compliance with Laws; Permitting
8.3.1. Customer agrees to comply with all applicable state and local laws and codes and to secure permits, if needed, for each Site Location. Customer agrees to provide copies of all permits to ARE Structures upon request.
8.4. Maintenance and Operation. Customer 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 or needlessly rough usage; and it shall, at its own expense unless otherwise stated, maintain the Equipment in good repair and operative condition in compliance with ARE Structures requirements, and return the Equipment in such condition to ARE Structures, reasonable wear and tear excepted.
8.5. Operators of Equipment. Unless otherwise mutually agreed in writing, all operators of the Equipment shall be employees of Customer. Customer shall ensure that all operators employed are adequately trained on how to operate the Equipment, comply with all requirements of any written instructions or product manuals of ARE Structures, and are competent to perform their duties. Customer shall pay all payroll and payroll taxes required by law for such operators of the Equipment.
8.6. Repairs. Customer shall give ARE Structures immediate notice in case any Equipment is damaged while in Customer’s possession. The expense of all repairs made during the Rental Period, including labor, material, parts, and other items, shall be paid by Customer.
8.7. Inspection. Upon reasonable advance written notice of at least 24 hours anytime during the Term, Customer shall allow ARE Structures, or its agents the opportunity to inspect the Equipment at a Site Location for purposes of determining Customer’s compliance with this Agreement.
9. Title and Financing Statements. The parties intend and agree that (i) the Equipment shall remain the personal property of ARE Structures at all times and title to the Equipment shall not be impaired, notwithstanding its being affixed to any real property; and (ii) that Customer shall prevent the Equipment from being levied upon or, from any cause, becomes liable to seizure. Customer authorizes ARE Structures to execute from time to time, as Customer’s attorney-in-fact, and/or file, such financing statements (UCC-1, etc.), assignments, and other documents covering the Equipment, as ARE Structures may require in order to evidence its ownership of the Equipment.
10. Insurance. At all times relevant to this Agreement, Customer, at its sole expense, shall obtain, pay for, and maintain insurance with financial sound insurers (A) covering loss or damage to the Equipment as normally and usually covered by an “all risk” policy and in amounts equal to or greater than the full replacement cost of the Equipment without deduction for depreciation; (B) Commercial General Liability insurance for claims for personal injury, bodily injury, death or property damage occurring at the Site Locations in an amount not less than $1,000,000 in the aggregate. Prior to using the Equipment and upon reasonable request by ARE Structures during the Term of this Agreement, Customer shall add ARE Structures as an additional insured and loss payee to the aforementioned insurance policies. Such insurance policies shall provide that in the event of a payment of any loss or damage, the insurance company will have no rights of recovery against ARE Structures, its officers, directors, employees, agents, and assigns. Customer hereby waives all rights of subrogation against ARE Structures, its officers, directors, employees, agents, and assigns. Customer shall furnish a certificate of insurance satisfactory to ARE Structures, that such insurance is in place. In addition, Customer shall obtain and maintain worker’s compensation in the statutory amounts required by the laws applicable to the Site Location. The rights and protections afforded to ARE Structures under this provision shall survive the termination or expiration of this Agreement.
11. Indemnification. Customer agrees that as a condition of said use of the Equipment and in consideration thereof, Customer will hold ARE Structures, its officers, directors, employees, agents, and assigns (“Indemnified Parties”) harmless from and against all claims, demands, or causes of action whatever and assumes all risks of loss, damages, personal injuries, property damage, arising out of the use of the Equipment by Customer. Further, Customer agrees to defend, indemnify, and hold the Indemnified Parties harmless from and against all claims that may be brought against any of the Indemnified Partes by Customer’s employees or agents unless such claims arise directly out of the breach of warranty, gross negligence or intentional act of ARE Structures or by its officers, agents, or employees.
12. LIMITATIONS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR SAVINGS, LOST DATA OR RECORDS, LOSS OF USE OF FACILITIES OR EQUIPMENT, OR ANY OTHER COSTS, PENALTIES, OR LIQUIDATED DAMAGES, REGARDLESS OF WHETHER THEY ARISE FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS COULD HAVE BEEN REASONABLY FORESEEN. IN NO EVENT SHALL ARE STRUCTURES BE LIABLE TO CUSTOMER FOR MORE THAN THE TOTAL AMOUNT OF RENT PAID TO ARE STRUCTURES AS OF THE DATE OF THE INCIDENT FOR WHICH LIABILTY AROSE. THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 12 SHALL NOT APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET OUT IN SECTION 11.
13. Miscellaneous
13.1. Assignment. This Agreement may be assigned by ARE Structures in its sole discretion. This Agreement shall be binding upon Customer, their successors, and assigns. Customer may assign this Agreement to a party that merges with or acquires all or substantially all of the assets or equity of Customer (“Acquirer”), provided that the Acquirer agrees in writing to be bound by all terms and conditions of this Agreement and the Customer shall remain jointly and severally responsible to ARE Structures for payment and performance as if the assignment did not occur.
13.2. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota, without regard to its conflicts of laws principles. In the event that suit shall be brought by either party to this Agreement, each party hereto agrees that venue shall be exclusively vested in the federal or state courts located in Ramsey County, Minnesota, and each party hereby waives any claim that such actions or proceedings have been brought in an inconvenient forum and further waives the right to object that such court does not have jurisdiction over such party.
13.3. Notices. All notices, requests, demands and other communications required hereunder shall be in writing and shall be delivered personally or by a nationally recognized overnight delivery service to the intended recipient at the address on the first page of this Agreement, or such other address as may be provided by the parties from time to time.
13.4. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
13.5. Entire Agreement. This Agreement, including all Schedules, and other attachments, which are incorporated by reference, and any other written agreements and instruments to be delivered pursuant to this Agreement, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
13.6. Counterparts. 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.
13.7. Last Revised. These Terms and Conditions were last revised on June 24,2024.