Texas First Rentals

AGREEMENT: This Agreement becomes binding on Texas First Rentals, LLC hereinafter: ("TFR") only upon TFR's execution of this Agreement, and subject to the availability of the Equipment from the manufacturer. Customer shall inspect the Equipment immediately upon its receipt and shall be conclusively deemed to have accepted the Equipment in good and operating condition unless the Customer promptly notifies TFR of any defects, in writing and via telephone. TFR shall have the right, at its option, to either repair or replace the Equipment, or terminate this Agreement, in which event the Equipment shall be returned to TFR. Delays in delivery shall be excused if caused by any cause beyond the reasonable control of TFR.
TITLE TO EQUIPMENT: Title to the Equipment shall pass to the Customer only upon TFR's actual receipt of funds in the total amount of the Purchase Price and other sums due to TFR hereunder.
TAKEN IN TRADE: Customer does hereby irrevocably sell, assign, transfer and convey possession, ownership, and title unto TFR to the Trade-in Equipment described above. Customer warrants that it is the sole owner of the Trade-in Equipment, has full power and authority to sell the Trade-in Equipment, and that there is no lien or any encumbrance of any kind or nature against the Trade-in Equipment, of record or otherwise.
TAXES: Customer shall promptly pay all taxes, fees, transportation and other costs, assessments and all governmental charges of any kind or character, and any penalties, fines or interest thereon relating to the Equipment.
CUSTOMER'S WARRANTIES AND USE: In addition to the other warranties contained herein, Customer warrants that (i) if Customer is an entity, it is duly organized and validly existing in good standing, and (ii) is duly authorized to execute, deliver, and perform under this Agreement. Customer further agrees and warrants, at its cost, that: (1) the Equipment shall at all times be used solely for Customer's business and not for personal, family, or household use, and in accordance with the use, and/or instructional materials, solely for the purpose for which it was intended; (2) only Customer's employees (who must be skilled, trained and certified to do so) shall use the Equipment. Customer hereby further agrees and warrants that (i) any payments made pursuant to this Agreement are intended by the Customer to be a contemporaneous exchange for new value given to Customer and it is a substantially contemporaneous exchange and (ii) each payment made of a debt incurred by Customer under this Agreement is in the ordinary course of business or financial affairs of Customer and TFR, and such payment was made in the ordinary course of business or financial affairs of Customer and TFR, or made according to ordinary business terms.
LOSS AND DAMAGE: Customer assumes all liability and risk of, and shall be solely responsible for, all damage and loss to the Equipment from any cause whatsoever, whether or not such loss or damage is or could have been covered by insurance. Until the Equipment is paid in full, Customer shall promptly give TFR written notice of any loss or damage and reimburse TFR for the value of the Equipment if damaged or stolen. TFR's sole responsibility for shipments shall be to deliver the Equipment to a public carrier company.
SECURITY AGREEMENT: Customer hereby grants to TFR a continuing purchase money security interest in the Equipment and any and all additions, substitutions and all proceeds thereof to secure Customer's obligations hereunder whether now existing or hereafter created and all renewals, extensions and rearrangement of such liabilities. Customer appoints TFR as Customer's irrevocable attorney-in-fact to file, at Customer's cost, any financing statement (and any amendments, renewals, and related instruments) on the Equipment: (i) to perfect a security interest in the Equipment, and/or (ii) to release, terminate, and void Customer's interest in the Equipment. The date of delivery, for purposes of filing any financing statement, shall be the date on which the Equipment is put into service and "made ready" or invoiced by TFR, whichever is later.
EVENTS OF DEFAULT: Each of the following is an event of default under this Agreement: (1) Customer's failure to pay any amount due hereunder or otherwise; (2) Customer's ceasing to do business, becoming insolvent, taking advantage of any law for the relief of debtors, making an assignment for the benefit of creditors or a filing under the U .S. Bankruptcy Code by or against Customer; (3) when TFR deems itself insecure with respect to Customer's performance; (4) Customer fails to perform any other obligation imposed on Customer under this or any other TFR Agreement; (5) Customer's representation or warranty is false or misleading.
REMEDIES ON DEFAULT: In the event of any default by Customer, TFR is entitled to any one or more of the following remedies, without any notice of default: (a) take possession of the Equipment or any other equipment, including enter premises where it's located; (b) terminate this Agreement; (c) seek specific performance or injunction or recover damages; (d) stop delivery of the Equipment or any other equipment; (e) without terminating this Agreement, TFR may take possession of the Equipment and sell, relet or otherwise dispose of the Equipment as a secured party under UCC and deduct all expenses, costs, reasonable attorney's fees, and other charges incurred by TFR; (f) Recover deficiency from Customer; and/or (g) perform by itself, or cause performance of, Customer's obligation, at Customer's cost; (h) surrender any insurance policies and receive the unearned premiums. In no event shall TFR be required to sell or relet the Equipment, nor required to rebate or pay back any gain or profit as a result of leasing the Equipment. TFR's remedies hereunder shall not be exclusive, but shall be cumulative and in addition to all other remedies existing at law or in equity.
INDEMNITY: TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES AND HOLDS TFR HARMLESS, AND AT TFR'S REQUEST, DEFENDS TFR (WITH COUNSEL APPROVED BY TFR) ITS PARTNERS, EMPLOYEES, AGENTS, REPRESENATIVES, SUCCESSORS FROM AND AGAINST ANY AND ALL CLAIM, EXPENSE, CAUSE OF ACTION, DAMAGE, LIABILITY, COST, PENALTY, TAX, ASSESSMENT, CHARGE, PUNITIVE DAMAGE OR EXPENSE BY REASON OF ANY ACT OR OMISSION OF CUSTOMER OR ITS EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, AFFILIATES OR INVITEES.
ASSIGNMENT: TFR may assign any of its rights and obligations hereunder without notice, including, but not limited to, assignment of the TFR equipment sale and/or trade-in purchase rights under this Agreement to CATD Exchange Services LLC. No assignee of TFR, including CATD Exchange Services LLC., as qualified intermediary or the assignee' s officers, directors, agents, or employees, shall be obligated to perform any covenant, condition or obligation required to be performed by TFR hereunder. However, in the event any assignee agrees to assume the obligations of TFR, Customer agrees that TFR shall be released from all further liability hereunder. Neither this Agreement nor any of Customer's rights hereunder shall be assignable by Customer without the prior written consent of TFR.
INSURANCE COVERAGES: Customer shall maintain equipment insurance and General Liability insurance, Auto Liability insurance, and Workers Compensation and Employer's Liability Insurance, each with minimum $1,000,000 per occurrence and shall deliver to TFR a Certificate of Insurance evidencing same. Such insurance obtained by Customer shall be primary.
NOTICES: All notices hereunder shall be in writing and shall be deemed delivered if delivered personally or mailed, by certified mail, return receipt requested, to the respective addresses of the parties set forth above or any other address designated by written notice.
MISCELLANEOUS: This Agreement may only be modified by a written agreement signed by TFR. If any provision of this Agreement is hereafter held invalid or unenforceable, the remainder of the Agreement shall not be affected, and the provisions are declared severable. If there is more than one Customer, the obligations of Customers hereunder are joint and several. Subject to the terms hereof, this Agreement shall be binding upon and inure to the benefit of TFR and Customer and their respective personal representatives, successors, and assigns. This Agreement shall be governed by the laws of Texas; each party hereby irrevocably consents to submit to the exclusive jurisdiction of the courts of the state of Texas in either Dallas County or Bexar County. Customer agrees and acknowledges that to the extent Equipment is equipped with a telematics system (e.g., Product Link), that data concerning such Equipment, including condition, and operation are being transmitted to Caterpillar Inc., and its affiliates. The full privacy statement applicable to the transfer of telematics information, including instructions on how to ask questions about telematics and how to revoke your consent, is available at: http://www.cat.com/en_US/support/operations/fleet-management-solutions/product-link/caterpillar-telematicsdataprivacystatement.html.
Fees: (1) TFR imposes a fixed rate fuel surcharge on all invoices. The fuel surcharge is intended to defray rising delivery and operating vehicle costs, including, but not limited to: vehicle standing costs, running costs, depreciation, etc. TFR can change the amount of the fuel surcharge from time to time in its sole discretion without prior notice. (2) Where permitted by law, TFR may impose a surcharge of 2.0% for credit card payments made on credit accounts. The surcharge imposed by TFR is not greater than our cost of acceptance.
Customer acknowledges that Caterpillar Inc. and its subsidiaries and affiliated entities (collectively, “Caterpillar”) and TFR each collect, use retain, disclose, and otherwise process personal information for, among other purposes, providing information about warranty, customer marketing and promotional material about Caterpillar and/or Dealer products or services. Caterpillar’s Global Data Privacy Statement (GDPS) is available at https://www.caterpillar.com/dataprivacy. TFR’s privacy statement is available at: https://www.holtcat.com/privacy. TFR and Caterpillar may share or disclose said personal information with the other. TFR may also share personal, product and other types of information with other third parties for business related purposes. Customer agrees that nothing contained herein impacts any authorization or consent previously provided to Caterpillar or TFR.
Right to a jury trial is hereby waived by all parties.
ARBITRATION: Parties agree to submit to binding arbitration for any dispute arising out of or relating to this transaction. Either party may initiate arbitration which shall be conducted in accordance with commercial arbitration rules of the American Arbitration Association, in San Antonio, Bexar County, Texas. The customer agrees that it shall not be a breach of this agreement if either party files suit in Bexar County District Courts, as the obligation to arbitrate is not triggered until either party explicitly initiates arbitration. The expenses of the arbitrator(s) shall be borne (or reimbursed, as applicable) by the non-prevailing party, and the prevailing party shall be entitled to recover its attorney fees and costs against the non-prevailing party.

EQUIPMENT SALE TERMS AND CONDITIONS