Rental Terms and Conditions

PLM Trailer Leasing Rental Terms and Conditions

1. ACCEPTANCE.  By taking delivery of a Trailer under a Rental Agreement, Lessee or its authorized agent acknowledge that the Trailer has been inspected and is in good and efficient operating order, condition and appearance, except as otherwise noted on the Interchange Inspection Report, and that Lessee unconditionally accepts the Trailer "AS-IS" and "WHERE-IS" and subject to the provisions of this Agreement. For purposes of this Agreement, Lessee shall be conclusively presumed to be in possession of the Trailer from the moment of acceptance until the Trailer is returned to Lessor in compliance with all return provisions of this Agreement.
2. RENTAL AND PAYMENTS.  Lessee shall pay the rental, as set forth on the Rental Agreement, and all applicable charges, including, but not limited to, mileage, refrigeration unit hours and fuel, tire tread depth or repair, and any rider charges, associated taxes or other charges, as hereinafter set forth, at the rates specified herein, or at such amended rates as Lessor may specify from time to time. Mileage shall be determined using hubodometers and shall be reported by Lessee on a monthly basis. Lessee shall notify Lessor immediately of any failure of a hubodometer to function properly. Refrigeration unit charges shall be determined using the refrigeration unit meter and shall be reported by Lessee on a monthly basis. Lessee shall notify Lessor immediately of any failure of a refrigeration unit meter to function properly. For any period(s) that a hubodometer or refrigeration unit meter is not functioning properly, mileage shall be determined from Lessee's trip reports, or at Lessor's option, mileage or hours shall be estimated by prorating the mileage or hours reported during the preceding month(s). All amounts payable hereunder shall be due within twenty (20) days of the date of Lessor's invoice. Lessee's obligation to pay rentals shall be absolute and unconditional, and shall not be subject to any abatement or recoupment whatsoever. Should Lessee fail to pay when due any amounts payable hereunder, the amount past due shall bear interest at the rate of one and onehalf percent (1-1/2%) per month until paid in full.
3. LOCATION AND INSPECTION.  Lessee shall maintain records at its principal office, showing the location of the Trailer and all maintenance and repairs performed by Lessee on the Trailer. Lessee shall permit Lessor reasonable access to examine the records and/or to inspect the Trailer during normal business hours. Lessee shall not permit the Trailer to be moved beyond the territorial limits of the continental United States, unless authorized in writing by Lessor. 
4. USE AND OPERATION.  From the moment of acceptance until the Trailer is returned to Lessor:
   1. Lessee shall neither use nor permit the Trailer to be used for the carriage of animal hides (tanned or untanned); used tires, corrosive acids, radioactive substances of any type; solid wastes of any type; noxious or filthy matter, or hazardous or toxic materials of any type; or any other cargo for which the Trailer was not designed or is not suitable for, which may damage the Trailer, or which may create an unreasonable risk of damage to the Trailer or to third parties during transport or subsequent use. For purposes of this Section, third parties mean any person or entity that is not a signatory to this Agreement.
   2. Lessee shall keep the Trailer in good working order, repair, appearance and condition. ON A DAILY BASIS, LESSEE MUST INSPECT THE TRAILER AND ALL REFRIGERATION UNIT EQUIPMENT, AND MUST MAINTAIN REFRIGERATION UNIT FLUID LEVELS, TIRE AIR PRESSURE AND WHEEL OIL LEVELS, AND REPAIR FLAT TIRES AT ITS OWN EXPENSE.
   3. Lessee shall assume all responsibility and cost for any and all licenses, titles, permits, inspections, and other certificates as may be required by law or otherwise for Lessee's lawful use and operation of such Trailer in any state or other jurisdiction where Lessor has not, at its expense, previously registered or licensed the Trailer under the motor vehicle registration laws of such state or jurisdiction that Lessor, in its sole discretion may have selected. Lessee shall indemnify, defend and hold Lessor harmless from and against any and all fines and penalties that may arise from the violation or infringement of any laws arising from the use or operation of the Trailer. If Lessee incurs any citation, penalty or fine (Fine) for its improper use or licensing of the Trailer, and for which Lessor may become liable during any period which Lessee has not paid or is contesting the Fine, Lessee shall pay Lessor a service charge of $50.00, in addition to any amount paid by Lessor on Lessee's behalf to satisfy the Fine.
   4. Lessee shall permit the Trailer to be operated only by a duly qualified and licensed driver, and shall comply with the Trailer manufacturer's loading limit and shall prevent excessive and undue impact and concentrated loading. Lessee shall not permit the Trailer to be used in any illegal activity or for the carriage of any illegal or contraband goods.
   5. Lessee acknowledges and understands that the California Air Resources Board ("CARB") has promulgated regulations which expressly prohibit the operation of any diesel-powered transportation refrigeration unit ("TRU") which is more than seven (7) years old within the state of California. Lessee hereby assumes all liability and responsibility for citations and/or sanctions which may result from Lessee's operation of any TRU affixed to any Trailer subject to this Agreement within the state of California in violation of said CARB regulations including, without limitation, all penalties, assessments and fines. Lessee shall immediately reimburse PLM for any expenses, including, without limitation, attorney fees, penalties, assessments and fines incurred by PLM with respect to Lessee's violation or alleged violation of said CARB regulations.
5. MAINTENANCE AND REPAIR
   1. Lessee is responsible for checking the hub oil and refrigeration unit fluid levels of the Trailer daily and adding oil or refrigeration unit fluid as required. In the event that Lessor performs maintenance for which Lessee is responsible hereunder, Lessee shall pay for such services at Lessor's then-current rates for labor or parts. Lessor shall have the right to inspect all maintenance performed on the
   1. Lessor shall perform preventative maintenance and all maintenance occasioned by normal wear and tear whenever the Trailer is made available for service to the Lessor branch location designated on the face of this Agreement as the PLM Rental Yard (Service Location) provided, however, that as a condition to Lessor's obligation hereunder, Lessee shall make the Trailer available to Lessor for preventative maintenance servicing at least one time during each calendar quarter at the Service Location. Lessee shall be responsible for, and shall bear the expense of all maintenance and consequential repairs required due to Lessee's failure to make the Trailer available to Lessor for servicing as stated above, and for shuttling the Trailer to and from the Service Location or to such other repair facility as may be designated by Lessor. Lessor shall, upon Lessee's request (and for Lessee's account) perform the maintenance for which Lessee is responsible hereunder whenever the Trailer is made available to the Service Location or to such other facilities as may be designated by Lessor for which maintenance Lessee agrees to pay Lessor's standard applicable rates.
   2. Notwithstanding the provisions of subparagraph 5(A) above, Lessee shall be responsible for the repair of all damage to the Trailer of any kind, whether caused by Lessee or not. Where Lessee repairs damage, the adequacy of such repairs shall be determined in the sole discretion of Lessor during the term of this Agreement, or, at Lessor's option, at the Trailer's return, and such repairs shall be considered accessions to the Trailer and become the property of Lessor. Lessee may also elect to return the Trailer and request that Lessor perform such repairs. The cost of such repairs shall be paid by Lessee within thirty (30) days of such repair. Lessee shall also pay a service charge of fifteen percent (15%) for Lessor's arranging for the repair and the rental term for the Trailer shall not terminate until the repair is completed. The schedule of typical costs and charges may be obtained by Lessee from any Lessor branch location.
   3. Lessee shall not undertake any repair to the Trailer where the aggregate cost of repair is reasonably estimated to exceed One Thousand Five Hundred Dollars ($1,500.00) without having first obtained the express written consent of Lessor.
   4. Lessor shall not be responsible for nor bear the expense of any special or consequential damages due to either Lessee's or Lessor's failure to make timely repairs, or for defects in the materials or workmanship provided by Lessor. Lessor's responsibility shall be limited to correcting, at Lessor's expense, all defects in materials or workmanship that, in Lessor's reasonable judgment, result from the performance of such maintenance or repairs by Lessor in an improper manner. If Lessee performs or causes to be performed any maintenance or repair under this Section to correct repairs for which Lessor is responsible, Lessee shall submit all repair orders and invoices to the Service Location within thirty (30) days of such repair. Lessor shall reimburse Lessee, within thirty (30) days, for, in Lessor's reasonable judgment, the reasonable cost of performing such repairs.  
6. ALTERATIONS.  Lessee shall neither make nor permit others to make any changes in, or improvements to the Trailer, nor remove therefrom (except for purpose of replacement) any part, accessory or tire, without first obtaining the written consent of Lessor. Any changes in, or improvements to, the Trailer shall become the property of Lessor, provided, however, that at the sole option of Lessor, Lessee shall, at its sole cost and expense, restore the Trailer to its original condition prior to returning the Trailer to Lessor.
7. RETURN
   1. Upon the termination of the rental term, Lessee shall, at its expense, return the Trailer during normal business hours to the Lessor branch location where originally accepted, or to such other facility as may be designated by Lessor. The Trailer shall be returned in good and efficient operating order, and in the same condition and appearance as when accepted by Lessee (reasonable wear and tear excepted).
   2. Lessee shall return the Trailer with the same tires that were on it at the beginning of the rental term. If, during the term of this Agreement, Lessee becomes required to replace or substitute a tire, such replacement or substitution shall be of a like tire of similar quality and design. Where there has been a replacement or substitution, all such tubes and tires shall be considered accessions to the Trailer and the property of Lessor. Lessee shall be liable for all of the following replacement or substitution charges: Any tire replaced by a recap shall be subject to a charge as determined by Lessor for the loss of tire life; Any tire replaced with one of lesser quality, design or tread depth shall be subject to a tread depth charge at a rate of 1/16^th of the current replacement tire cost for each 1/32 of an inch of tread lacking from the replaced or substituted tire at the time of return; Any casing not returned shall be subject to a replacement charge as determined by Lessor.
   3. The rights created for Lessor and the obligations assumed by Lessee under this Agreement shall continue until the Trailer has been returned as required hereunder, or, if the Trailer is returned in a damaged or otherwise unsatisfactory condition, until the Trailer has been properly repaired and restored, at Lessee’s expense, to the condition required hereunder; provided, however, that during any such period the rental term is continued for purposes of repair, the rental charges payable by Lessee shall be at the rate of 150% of the rate prevailing at the time the Trailer is returned to Lessor.  

8. DISCLAIMER OF WARRANTIES AND LIABILITIES AND INDEMNITIES

1. LESSEE REPRESENTS AND WARRANTS THAT, AT THE TIME LESSEE OR ITS AUTHORIZED AGENT TAKES DELIVERY OF A TRAILER, LESSEE OR ITS AGENT SHALL HAVE INDEPENDENTLY INSPECTED SUCH TRAILER AND DETERMINED THAT IT IS SUITABLE FOR LESSEE'S INTENDED USES AND IS ACCEPTED AND DELIVERED "AS IS" AND "WHERE IS". LESSOR HEREBY DISCLAIMS, AND LESSEE HEREBY RELEASES LESSOR FROM, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION
   1. THE DESIGN, CONDITION, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE TRAILER;
   2. THE FITNESS OF THE TRAILER FOR ANY PARTICULAR USE OR PURPOSE OF LESSEE; AND
   3. THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE TRAILER. LESSEE SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ALL RISKS OF LOSS ARE TO BE BORNE BY LESSEE.
2. LESSOR SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO ANY PROPERTY TRANSPORTED, LEFT OR STORED BY THE LESSEE OR ANY OTHER PERSON IN OR UPON THE TRAILER DURING THE TERM OF THIS AGREEMENT OR UPON ITS RETURN TO LESSOR. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE ARISING IN STRICT LIABILITY OR OTHERWISE, CAUSED DIRECTLY OR INDIRECTLY BY THE INADEQUACY OF THE TRAILER FOR ANY PURPOSE OR ANY DEFICIENCY THEREIN OR THE USE OR MAINTENANCE THEREOF, OR ANY REPAIRS, SERVICING OR ADJUSTMENTS THERETO, OR ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE ANY REPAIRS, SERVICING OR ADJUSTMENTS OR ANY INTERUPTION OR LOSS OF SERVICE OR USE THEREOF OR ANY LOSS OF BUSINESS. LESSEE HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS AND DEMANDS FOR ANY OTHER AFORESAID LOSS, LIABILITY, DAMAGE, CLAIM OR EXPENSE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, OR OTHER ALLEGED CONSEQUENTIAL DAMAGES.
3. Lessee hereby assumes liability for, and does hereby agree, at Lessee's sole cost and expense, to indemnify, defend and hold harmless Lessor and its successors, assigns, legal representatives, agents, employees and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses or disbursements (including, without limitation, legal fees and expenses) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against Lessor or any of its successors, assigns, legal representatives, agents, employees, or servants (whether or not also indemnified against by the manufacturer(s) or any other person), in any way relating to or arising out of this Agreement or any document contemplated hereby, or the performance or enforcement of any of the terms hereof, or in any way relating to or arising out of the manufacture, purchase, acceptance, rejection, return, ownership, possession, use, condition, operation, sale or other disposition of the Trailer, or any accident in connection therewith (including, without limitation, latent and other defects, whether or not discoverable), including damages for loss of service or use consequential therefrom, or death, injury, or damages to property or persons, including, without limitation, Lessee, third parties, firms and corporations and their respective servants, agents, or employees, or any person Lessee suffers or permits to use, operate, transport, maintain or possess each Trailer; provided, however, that Lessee shall not be required to indemnify Lessor or its respective successors, assigns, legal representatives, agents and servants for loss or liability in respect of any Trailer arising from any acts or events which occur after possession of such Trailer has been returned to Lessor.

9. TAXES.  Lessee assumes responsibility for, and shall pay when due, all taxes and governmental charges, however so designated, now or hereafter imposed upon the leasing, use, operation, or possession of the Trailer, or upon the rentals payable hereunder, together with all related interest and penalty charges, but excluding net income taxes assessed against Lessor.

10. RISK OF LOSS. Lessee shall bear the risk of all direct, indirect, or consequential loss, damage, or deprivation of use of the Trailer. If the

Trailer is lost, stolen or otherwise disappears, or if the Trailer is damaged to such an extent that it cannot, in the opinion of Lessor,

economically be restored in good operating order, condition and appearance, Lessee shall promptly pay Lessor an amount equal to the

Stipulated Loss Value of the Trailer. As used throughout this Agreement, the phrase "Stipulated Loss Value" shall mean the value of the

Trailer as set forth on the face of this Agreement. Lessee remains obligated for all rental and other charges accrued through the date that

Lessee pays to Lessor the Stipulated Loss Value. Upon receipt by Lessor of Lessee's payment(s) of the "Stipulated Loss Value" and for all

rental and other charges accrued through the date of Lessor's receipt of such payment(s), Lessee's obligation to pay rent shall cease and

terminate.

11. INSURANCE

1. Lessee shall purchase and maintain policies of insurance in force and with insurance companies that are satisfactory to Lessor. The insurance policies shall, by suitable endorsement, name Lessor as an additional or co-insured and shall contain the following coverage:
   1. comprehensive general liability, automobile liability insurance covering liability for bodily injury or death and property damage, with a combined single limit of not less than $1,000,000 per occurrence; and
   2.  all risk property damage and loss of use insurance covering the Trailer at its Stipulated Loss Value and designating Lessor as loss payee.
2. The insurance policy shall further provide that:
   1. the respective coverage shall be considered primary as against any insurance coverage that may be provided by Lessor;
   2.  the interest of Lessor will be insured regardless of any breach or violation of any warranties, declarations, or conditions contained in such policies; and
   3.  Lessor shall receive not less than thirty (30) days written notice before cancellation or material alteration of the policy. Prior to Lessee's taking delivery of the Trailer under this Agreement, Lessee shall furnish Lessor with certificates of insurance evidencing the above required insurance coverages.
3.  The maintenance of insurance by Lessee shall not be deemed nor construed to suspend, limit, or modify Lessee's other obligations under this Agreement.

12. NOTIFICATION OF ACCIDENT OR LOSS.  Lessee shall, at its expense, promptly notify Lessor of each accident and each occurrence of loss involving the Trailer. Lessee's notice shall describe the time, place, and nature of the accident or loss, the extent of any Trailer damage resulting therefrom, the names and addresses of all involved parties, a copy of any police report, and such other information as may be known. Lessee shall promptly advise Lessor of all notices or documents received by Lessee in connection with any claim related to the Trailer.

13. IDENTIFICATION OF INTERESTS.  Lessor reserves the right to attach in one or more locations upon each Trailer identifying marks, decals, signs, or other forms of notice indicating Lessor's interest in the Trailer. Lessee shall not remove, obscure, deface, or obliterate any such identifying marks or notice, or permit or suffer any other person to do so. If Lessee shall do so in violation of this provision, it shall be responsible for all costs associated with the repair and restoration of Lessor's identifying marks, including the painting and any reasonable charges assessed by Lessor for providing such services and for rental income while the Trailer was undergoing such cleaning, repair or renovation.

14. TITLE AND ENCUMBRANCES.  This transaction is a rental agreement and does not create a joint venture nor constitute a sale, conditional or otherwise. Lessee shall not acquire hereunder, or by payment of the rental or Stipulated Loss Value, any right to or interest in the Trailer or any part thereof, except the right to possess and use the Trailer in accordance with the provisions of this Agreement so long, and only so long, as Lessee shall not be in default in the performance of its obligations hereunder. Lessee shall keep the Trailer free from all liens, charges and encumbrances arising in connection with Lessee's use, operation or possession of the Trailer.

15. FORCE MAJEURE.  Lessor shall not be liable for any failure to perform any obligation hereunder when prevented from doing so by Act of God, war, fire, earthquake, riot or civil disturbance, snow or flood, strikes or other labor trouble, or by any other condition beyond the reasonable control of Lessor.  

16. EVENTS OF DEFAULT.  The occurrence of one or more of the following shall constitute an event of default:

a. Lessee fails to pay when due any rental or other payment becoming due hereunder;

b. Lessee fails to perform any other obligation assumed by Lessee under this Agreement;

c. Lessee or any guarantor of the obligations of Lessee:

i. becomes insolvent,

ii. commits an act of bankruptcy,

iii. becomes subject to any voluntary or involuntary bankruptcy proceeding,

iv. makes an assignment for the benefit of creditors,

v. appoints or submits to the appointment of a receiver for all or any of its assets,

vi. admits in writing its inability to pay its debts as they become due,

vii. enters into any type of voluntary or involuntary liquidation

viii. Lessee defaults under any other agreement with Lessor or any entity affiliated with Lessor.

17. REMEDIES UPON DEFAULT.  In the event of any default by Lessee, Lessor may, at its option and without demand or notice to Lessee, exercise one or more remedies:

a. immediately terminate this Agreement and Lessee's rights hereunder;

b. require the Lessee to return the Trailer to Lessor at Lessee's expense;

c. enter, without demand or notice and without court order or legal process, upon any premises where the Trailer may be located and to take immediate possession thereof;

d. declare the entire balance of rent and charges for the remainder of the rental term and all other unpaid amounts immediately due and payable;

e. draw upon any security deposit or letter of credit, or take any other security pledged by Lessee to guarantee its obligations hereunder, in full or partial payment of Lessee's obligation in default.

f. Lessee shall pay to Lessor on demand all fees, costs, and expenses incurred by Lessor by reason or occurrence of an event of default or by enforcing its rights hereunder, including, without limitation, reasonable attorneys’ fees. The remedies provided herein in favor of Lessor shall not be exclusive, but, shall be cumulative and in addition to all other remedies provided in this Agreement or existing at law or in equity, any one or more of which may be exercised simultaneously or successively. No termination, repossession, or other act by Lessor after default by Lessee shall release Lessee from any of its obligations hereunder.

g. In the event that Lessor exercises its remedies provided for in Subsection (c) above, Lessor shall provide Lessee with notice, in accordance with Section 18 of this Agreement, that the contents of the Trailer shall be available during normal business hours at the Lessor branch location identified therein for five (5) days from the date of the notice.  If Lessee does not remove the contents of the Trailer within said time, Lessor shall remove and dispose of the Trailer contents.

h. THE REMEDY SET FORTH IN SUBSECTION (A)(iii) ABOVE DOES NOT CREATE A BAILMENT OF THE TRAILER CONTENTS. LESSOR SHALL NOT BE RESPONSIBLE TO LESSEE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM THE EXERCISE OF LESSOR'S RIGHTS UNDER THIS PROVISION OF THE LEASE.

18. NOTICES.  Any notice, request, inquiry or demand under this Agreement shall be valid only if in writing and shall be deemed received (whether or not refused by the addressee) three (3) days following its deposit in the United States Post Office, if mailed by certified mail, return receipt requested, postage pre-paid, and properly addressed to the party for whom intended at the address designated on the face of this Agreement, or at such other address as the party may hereinafter designate for itself by notice; or, if given in any other manner, when actually received. 

19. NON-WAIVER.  A failure by either party to require the strict performance of any obligation assumed by the other party hereunder, or the failure of either party to exercise any right or remedy to which it is entitled, shall not constitute a waiver nor a diminution of the obligations or rights provided in this Agreement. None of the provisions of this Agreement shall be held to have been waived by any act or knowledge of the parties, except by a written instrument executed by the parties to be bound thereby. Waiver of any particular default shall not be a waiver of any subsequent default.

20. GOVERNING LAW.  This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed under the laws of the State of New Jersey.  The parties hereto agree and intend that the proper forum for any litigation of any disputes or controversies arising out of or related to this Agreement shall be any court located in the State of New Jersey. The parties expressly waive any defense or objection to jurisdiction or venue based on the doctrine of forum non conveniens, and stipulate that any court located in the State of New Jersey shall have the nonexclusive jurisdiction and venue over the parties for the purpose of litigating any dispute or controversy arising out of this Agreement or the transactions contemplated hereunder.

21. SUBLEASE AND ASSIGNMENTS.  Lessee hereby consents to any assignment of this Agreement by Lessor. Lessee may not sublease or assign this Agreement or any of Lessee's rights or obligations hereunder, either by its own act or by operation of law, without the prior written consent of Lessor; and any such attempted sublease or assignment shall be void.  

22. SUBORDINATION.  This Agreement is made subordinate to any chattel mortgage, pledge, security agreement, conditional sales contract, lease, or like agreement applicable to the Trailer to which Lessor is bound.

23. CONSTRUCTION.  If any provision of this Agreement, or the application thereof, is held by a court having competent jurisdiction to be invalid or unenforceable under an applicable law, the remainder of this Agreement shall not be affected thereby; and to this end, the provisions of this Agreement are declared severable. If there is more than one Lessee, the obligations under this Agreement are joint and severable.

24. INTEGRATED AGREEMENT

a. This Agreement constitutes the entire agreement between the parties pertaining to the Trailer and relating to the subject matter thereto. Except as otherwise expressly provided herein, the terms, covenants, conditions, and other provisions of this Agreement may hereinafter be supplemented, changed, amended, or modified, by Lessor without notice.

b. If the ownership of Lessee changes or there is a disposition of a substantial portion of Lessee's assets at any time during the rental term, Lessor shall have the option of terminating this Agreement and demanding the prompt return of the Trailer or require from Lessee additional financial security or assurances, including, but not limited to, cash deposits, letters of credit and guarantees as a condition to the continuation of this Agreement in full force and effect.