Rental Terms and Conditions

Whereas, Remote Heat Inc., (“Lessor”) a Maine corporation with a mailing address of PO BOX 708 Bath, ME 04530 is the owner of the equipment listed within invoices (the “Equipment”), and

Whereas, Customer (“Lessee”), desires to use the Equipment in its business;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Lessor and Lessee agree as follows:

1.  Use. Lessor shall allow continued use by Lessee of the Equipment in the ordinary course of Lessee’s business for work in the continental United States of America, only.  The Equipment is for Lessee’s exclusive use in connection with Lessee’s construction business, and it is not to be let, loaned, borrowed, or used in any way by any third party, nor may this lease be assigned, sold, given as security, or transferred in any manner by Lessee. Equipment is not be transported over public roadways unless loaded legally on a trailer. Lessee shall comply with all laws, ordinances, rules, and regulations relating to the use, possession, or maintenance of the Equipment.

2. Rent; Term.  Lessee shall pay Lessor for lease of equipment. The first rental installment is due within stated due date on invoice or within twenty-eight (28) days following the commencement of this Lease if not stated within invoice, with each succeeding installment due twenty-eight (28) days after the previous installment until the termination of this Lease. Lessee shall pay Lessor interest at the highest lawful rate on any delinquent payment more than 30 days past due, until paid.  Lessee shall pay all costs and including attorneys’ fees, incurred by Lessor in collecting any delinquent payments under this Lease. Lessee shall actual cost for delivery and return of equipment to Lessor. Lessee shall assume liabilities upon delivery.

Rental rates are not subject to any deductions on account of any non-working time. This Lease terminates when equipment is returned back to Lessor (the “Termination Date”), unless terminated earlier according to the terms herein.

3. Equipment Condition and Repairs.  Lessee acknowledges receipt of the Equipment in good and satisfactory condition, and accepts the Equipment as is, where is, with all faults.  Lessee acknowledges that Lessee has selected the Equipment on the basis of Lessee’s own expertise, and Lessee has not relied on any representations of Lessor in deciding to lease the Equipment from Lessor. At Lessor’s expense, Lessee shall perform, or cause to be performed by a licensed and insured professional, at reasonable expense, all necessary maintenance and repair, including major repairs, of the Equipment while in Lessee’s possession or control. Rental rates are not subject to any deductions on account of any non-working time. Lessee shall maintain the Equipment in good working condition, reasonable wear and tear excepted.

NOTE:  If the Equipment is comprised, in whole or in part, of an attached generator that was leased along with equipment, Lessee, at Lessee’s sole expense, shall change the oil and filters in said generator(s) for every two hundred and fifty (250) hours said generator(s) is/are run.  Lessee shall maintain adequate records documenting total hourly usage and oil and filter changes, which records shall be available for Lessor’s inspection upon reasonable notice.  Failure to change the oil and filters as provided herein shall be a material breach of this Lease and may result in Lessor pursuing all legal and equitable remedies against Lessee.

Lessee shall keep the Equipment free from any and all mechanic’s liens. Lessee itself hereby waives any and all mechanic’s liens Lessee may have as a result of repairs to the Equipment made by Lessee.  Lessee shall not mark, deface, alter or modify the Equipment in any manner whatsoever, without prior written approval from Lessor.  Notwithstanding anything to the contrary contained herein, Lessee shall pay for all repair costs (including, but not limited to, labor, materials, and parts) resulting from improper usage of the Equipment, and all repair costs resulting from any repairs performed by Lessee or caused to be performed by Lessee.

4.  Disclaimer of Warranties.  LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO DESIGN, CAPACITY, PERFORMANCE, MATERIAL, WORKMANSHIP, MERCHANTABILITY, THE FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR THAT THE EQUIPMENT WILL MEET THE REQUIREMENTS OF ANY LAWS, RULES, SPECIFICATIONS OR CONTRACTS WHICH PROVIDE FOR SPECIFIC APPARATUS OR SPECIAL METHODS.  LESSOR FURTHER DISCLAIMS ANY LIABILITY WHATSOEVER FOR LOSS, DAMAGE, OR INJURY TO LESSEE OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE EQUIPMENT.  AS TO LESSOR, LESSEE LEASES THE EQUIPMENT “AS IS”.  LESSOR SHALL NOT BE LIABLE IN ANY EVENT TO LESSEE FOR ANY LOSS OR DELAY CAUSED TO THE BUSINESS OF LESSEE, OR DAMAGE OF ANY KIND OR CHARACTER RESULTING FROM DEFECTS IN, OR INEFFICIENCY OF, EQUIPMENT HEREBY LEASED OR ANY ACCIDENTAL BREAKAGE THEREOF.

5. Assumption of Risk. Lessee assumes all risk of loss or damage to the Equipment and risk of loss or damage caused from use of equipment, and no loss or damage shall impair the obligations of this Lease. Lessee shall secure and pay for, in addition to the Rent, insurance acceptable to Lessor to protect the Equipment from casualty damage to the Equipment, including fire and theft, with losses payable to Lessor up to the value of the Equipment.  In addition, Lessee shall carry insurance satisfactory to Lessor in Lessor’s sole discretion in sufficient amount of coverage for claims which may be asserted against Lessor arising from Lessee’s use of the Equipment.  Lessor shall be named an additional named insured on any policies secured by Lessee concerning the Equipment or use of the Equipment. At Lessor’s request, Lessee shall furnish to Lessor Certificates of Insurance satisfactory to Lessor evidencing that the required insurance is in place.

6. Title to Equipment.  Title to the Equipment shall remain at all times in Lessor, and Lessee’s right to possess the Equipment arises solely under the terms of this Lease.

7. No Joint Venture or Partnership.  Nothing herein shall be construed to create a joint venture or partnership between the parties.

8. No Third Party Beneficiaries.  There are no third party beneficiaries to this Lease.

9. Default.  This lease shall be in default and may be terminated at the election of Lessor, effective immediately and without notice, upon the following events:

  1. Nonpayment of any monetary obligation under this lease, when due;

  2. Failure of Lessee to perform any non monetary covenant of this Lease;

  3. Lessee’s principal dies, or Lessee ceases to function as a business, becomes insolvent, bankrupt, or is otherwise unable to pay its debts when due;

  4. Lessor reasonably believes the Equipment is in danger of harm or in danger of being placed beyond the reasonable ability of Lessor to recover the Equipment. In the event of early termination, all rights of the Lessee to possession and use of the Equipment shall cease, and, upon notice from Lessor, Lessee, at Lessee’s expense, shall return the Equipment to a place designated by Lessor at the time.

10. Remedies Upon Default.  In the event of default and early termination, Lessee in its sole discretion and without notice may exercise the following remedies, individually or cumulatively:

  1. seek payment of all past due monies owed and accelerate all payments coming due under this Lease from the time of early termination to the time of the natural term of this Lease;

  2. retrieve the Equipment wherever located and enter upon any land or building where the Equipment is located, and Lessee agrees to cooperate in any such retrieval of the Equipment by Lessor;

  3. render the Equipment unusable in place without retrieving the Equipment;

  4. use reasonable force against locks, obstructions, and other obstacles preventing access to and retrieval of the Equipment, so long as such entry does not involve confrontations with any individuals present at the scene;

  5. obtain such judicial process as may be necessary to retrieve the Equipment, and Lessee agrees to cooperate in such process to the extent necessary to retrieve the Equipment;

  6. obtain ex parte judicial relief, meaning judicial relief without notice to Lessee, against Lessee, for the purposes of obtaining possession of the Equipment by Lessor, including, without limitation, ex parte issuance of a Writ of Possession for the Equipment wherever it may be found, and, to the extent necessary, appointment of a receiver for Lessee to take possession and control of the Equipment.

      1. No Set-off. Lessee shall not assert as an offset to the monthly rent due, or to amounts due after default and acceleration, any monies Lessee may allege are due Lessee from Lessor for any claim whatsoever, whether arising under this Lease or otherwise, or any defense, counterclaim or other claim of set off, and Lessee acknowledges that the rent is due unconditionally, as required under this lease.

  1. Indemnification. Lessee agrees to indemnify and hold Lessor harmless from any and all claims, actions suits, proceedings, costs, expenses, damages, and liabilities arising from Lessee’s use or possession of the Equipment, including any and all attorney’s fees and costs borne by Lessor in defense of any such claim. Lessee shall further indemnify Lessor and hold Lessor harmless from all loss and damage to the Equipment during the rental period. Lessee recognizes and agrees that included in this Section 13, but not by way of limitation, is Lessee’s assumption of any and all liability for injury, disability and death of workmen and other persons caused by the operation, use, control, handling, or transportation of the equipment during the term of this Lease. This covenant shall survive termination of this Lease.

  2. Costs of Enforcement. Lessee shall, in addition to all sums owing under this Lease, pay Lessor all costs, expenses, reasonable attorney’s fees and other expenditures of Lessor spent in enforcing any of the terms of this Lease.

  3. Taxes. Lessor shall be responsible for payment of all taxes assessed on the Equipment.

  4. Waiver. Lessor may waive any particular provision of this Lease at any time, but any such waiver shall not be binding on Lessor to waive the same or a similar provision again, no matter how many times Lessor may waive any particular provision. Any waiver of any provision of this Lease must be in writing, signed by Lessor, to be effective.

  5. Amendments. Any amendments to this Lease must be in writing and signed by both parties hereto.

  6. Reserved.

  7. Inspection. Lessor may inspect the Equipment and any records of oil and filter changes, hourly usage, and the like, at any time, with reasonable notice, and Lessor may enter upon any property under the control of Lessee, or to which Lessee itself has permitted access, for the purposes of inspection, and Lessee shall cooperate with Lessor to the extent necessary.

  8. Enforceability/Illegality. To the extent any provision of this Lease is unenforceable or illegal as a matter of law, such provision may be excised from this Lease, or reduced in its terms to the point at which such provision is not unenforceable or illegal, without affecting the enforceability of any remaining terms of this Lease.

  9. Evidence of Lease. Lessee agrees that Lessor may execute in Lessee’s name and record such documents as may be necessary or desired by Lessor to evidence Lessor’s interest in the Equipment governed by this Lease, including the recording of a UCC – 1 form with the Maine Secretary of State. Lessee agrees that this lease is a true lease, but Lessee further agrees that, to the extent that this Lease is characterized by any legal authority as a security agreement instead of a true Lease, then Lessee hereby presently grants to Lessor a security interest in the Equipment to secure all amounts due under this Lease, and Lessor shall have all the rights of a secured party arising under 11 M.R.S.A. §§ 9-1101 et seq.

  10. Governing Law. This Lease shall be governed by the law of Maine, and jurisdiction and venue shall be in the courts of the State of Maine.

  11. Merger. This Lease contains the complete expression of the parties’ understandings related to Lessee’s possession and use of the Equipment, and no alleged oral understandings before or after the execution of this Lease shall have any force or effect.

  12. JURY TRIAL WAIVER. LESSEE WAIVES ANY RIGHT TO JURY TRIAL FOR ANY DISPUTE WHICH MAY ARISE UNDER THIS AGREEMENT. THIS WAIVER IS A MATERIAL INDUCEMENT TO LESSOR TO ENTER IN TO THIS AGREEMENT. LESSEE ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL OF ITS OWN CHOICE, THAT IT HAS NOT BEEN COERCED INTO THIS AGREEMENT, AND EXECUTES THIS AGREEMENT OF ITS OWN FREE WILL.