Agreement. Supplier hereby agrees to rent the Equipment to Renter and Renter agrees to rent the Equipment from Supplier on the terms and conditions of this Agreement and the "Rental." For purposes of this Agreement, the "Rental" is the electronic document described on the web page of the KWIPPED, Inc. website containing the terms of the Rental agreed to by Supplier and Renter. The Rental is made available to Renter by Supplier through the website, and the terms in the comments section of the Rental are incorporated into the terms of this Agreement by reference. If there is any conflict between the terms in the comments section of the Rental and the terms of this Agreement, the terms of this Agreement shall control. Renter understands and agrees that the Rental and this Agreement will become effective and binding on Renter only after the Supplier has confirmed Supplier's acceptance of the final Rental listed on the website and agreed to by Renter.
Term. The initial term of the Equipment rental will commence on the "Start" date and will end on the "End" date set forth in the Rental. If the Equipment is not returned by the "End" date, the rental term shall extend daily and at a daily prorated charge calculated using the rental charge for the initial term, unless terminated by either party as provided in Section 6. On the last day of the term, whether under the initial term or any extension thereof, Supplier will arrange for de-installation and/or pick-up of the Equipment, as applicable or, if no return shipping charges were paid to Supplier under the terms of the Rental and at the request of Supplier, Renter will ship the Equipment back to Supplier at Renter's expense. The Equipment shall be returned to Supplier in good condition and working order, ordinary wear and tear excepted, as it was at the commencement of the Agreement.
Equipment Receipt Confirmations:
If Equipment is to be installed by Supplier, Renter shall provide sufficient space and area for the Equipment to be installed on the Start Date. After installation of the Equipment, Renter will notify Supplier through the website within 24-hours of installation if there are any issues with the installation or Equipment. If no such notice is received, the Equipment shall be deemed properly installed, proper Equipment and in good working condition for all purposes of this Agreement. Until such time as the Equipment is returned to Supplier, or picked up by Supplier, as provided in Section 2 above, Renter will be responsible for such Equipment pursuant to the terms and conditions of this Agreement.
If no installation is required, when the Equipment is shipped to Renter, at the sole choice of Supplier, the carriers' receipt will constitute Renter's receipt of the Equipment. After receipt of the Equipment, Renter will notify Supplier through the website within 24-hours of delivery if there are any issues with the Equipment. If no such notice is received, the Equipment shall be deemed proper Equipment and in good working condition for all purposes of this Agreement.
Obligations of Renter.
Renter agrees to use the Equipment solely for the purpose for which it is supplied, in a careful and proper manner and will comply with the laws, rules, ordinances, statutes and orders regarding the use, maintenance and storage of the Equipment.
Unless Renter notifies Supplier of any defects in the Equipment as set forth in Section 3(b), the Equipment shall be deemed to be in good working order upon receipt by Renter. Renter shall, at Renter's sole expense, keep and maintain the Equipment in clean and good working order and repair during the term of the rental. Renter agrees to notify Supplier of any damage to the Equipment as soon as practicable, and to be responsible for the cost to repair all damage caused to the Equipment while in use by Renter (other than damage caused by normal and proper use in accordance with the intended purpose of the Equipment) and, if Renter is responsible for transit of equipment, while in transit to or from Renter. Such repair cost is not to exceed the replacement cost of the Equipment as specified in the Rental. In the event the Equipment is lost or damaged beyond repair, Renter shall pay to Supplier the replacement cost of the Equipment as specified in the Rental, and, in addition, the obligations of this Agreement shall continue in full force and effect through the end of the term. Renter shall promptly pay Supplier the cost to repair or replace the Equipment.
Renter shall keep the Equipment free and clear of any liens or other encumbrances, and shall not permit any act where Supplier's title or rights may be negatively affected. Renter shall be responsible for complying with and conforming to all laws and regulations relating to the possession, use, or maintenance of the Equipment.
Renter shall not alter the Equipment in any way.
Renter agrees that the Equipment provided by Supplier shall only be operated by competent personnel, familiar with the operation of such equipment. No person operating or using the Equipment will be under the influence of any substance, including alcohol or drugs.
Renter agrees to provide an on-site environment that meets the requirements for proper operational performance of the Equipment. Renter agrees to provide reasonable security at the site of use, to minimize the exposure of the Equipment to loss and/or damage.
Renter shall not move the Equipment from the location at which such Equipment is installed by Supplier, if applicable, or from the location specified in the Rental under "Permitted Area of Use" without first receiving Supplier's prior written approval.
Renter shall obtain all licenses and permits required to operate the Equipment, including without limitation any motor vehicle license, and Renter shall require all operators of the Equipment to be properly licensed or have the proper permits prior to operating such Equipment.
Insurance. If Supplier requires it, Renter shall obtain general liability insurance and/or property insurance against all liabilities and damages with respect to Renter's use of the Equipment during the rental period, name Supplier as an Additional Insured under Renter's insurance policy, and provide to Supplier a Certificate of Insurance, which Renter may upload to Supplier through the KWIPPED website. Renter hereby agrees that if insurance is required by Supplier, no Equipment shall be delivered by Supplier prior to the receipt of a Certificate of Insurance.
Prior to the shipping day or the day of installation of the Equipment, Renter shall pay in full the following as specified in the Rental:
the rental charge for the first month of the rental period, or if the rental period is for less than one month, the rental charge from the Start Date to the End Date;
the security deposit (if required by the Supplier);
shipping charges and return shipping charges;
one-time up-front fees; and
applicable sales, use, property and other taxes, fees, and other assessments and governmental charges.
If the payment specified above is not timely paid, Supplier will be under no obligation to ship or install the Equipment.
Unless the Rental does not permit an automatic renewal, the term will automatically renew for a daily term and at a daily prorated charge based on the rental charge for the initial term until the Equipment is returned. Payment during any renewal term shall be made as provided in this Section.
If Renter fails to return the Equipment at the end of the applicable rental term, Renter agrees to pay all rental charges set forth in this Section until the Equipment is returned.
All payments hereunder shall be paid by providing credit card information of Renter to KWIPPED, Inc. ("KWIPPED"). Renter hereby authorizes KWIPPED to charge Renter's credit card for all charges due under the terms of this Agreement. Renter understands and agrees that KWIPPED is only providing billing and collection services to Supplier, and is not a party to this Agreement nor responsible for any obligations of Supplier or Renter under this Agreement.
Purchase Option. If Supplier has provided (or provides) Renter an option to purchase the Equipment (the "Purchase Option") Renter may exercise such Purchase Option by returning to the applicable Equipment rental page on Kwipped.com, clicking the "Purchase Equipment" button, completing any additional forms provided via the Kwipped.com website and agreeing to the terms of the purchase of the Equipment (the "Purchase Order") provided via the Kwipped.com website. If Renter exercises the Purchase Option, for the purposes of this Agreement, all references to (a) "Buyer" and "Renter", (b) "Seller" and "Supplier", and (c) "Rental" and "Purchase", shall be interchangeable, and Paragraphs 1, 3, 6, 11, and 13 through 23 herein shall survive and be incorporated to the KWIPPED Terms And Conditions Of Sale. In addition to the preceding, the following additional terms and conditions shall govern the Purchase:
Upon receipt of the Purchase Order, Seller shall deliver to Buyer the Equipment (if not already in the possession of Buyer), conveying marketable title to the Equipment, free and clear of all security interests, liens, or encumbrances, if any. The closing for such transaction (the "Closing") shall take place within 10 business days of the delivery of the Equipment or receipt of the Purchase Order (whichever occurs last) or upon delivery by the Buyer of the purchase price to KWIPPED. If the Closing does not occur within the Closing Time, either party may terminate the contract for purchase and sale of the Equipment and this Agreement and be released from any and all obligations thereunder.
Buyer and Seller agree that Buyer shall be responsible for all of the costs associated with the Closing, excluding transfer taxes and prorated property taxes, which shall be the sole and exclusive responsibility of Seller. Further, upon notice of Buyer's exercise of the Option, all standard terms and conditions contained under this Agreement except as modified herein, shall apply to the purchase of the Equipment.
Seller expressly disclaims any liability in the event that any mechanical breakdown or failure of the Equipment should result in damage, loss, delay or any other interference in Buyer's work product. SELLER SHALL NOT BE LIABLE FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED BY THE EQUIPMENT OR ANY DEFECT OR INADEQUACY THEREOF. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED, TO LOSS OF REVENUE OR PROFIT.
UNLESS OTHERWISE AGREED UPON IN WRITING PRIOR TO THE PURCHASE, SELLER MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT OR THE MATERIAL OR WORKMANSHIP IN THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SELLER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE EQUIPMENT IS SOLD TO BUYER "AS IS" AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY BUYER. SELLER IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR ITS OPERATION.
Uniform Commercial Code § 2-401(2) shall apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
Buyer and Seller acknowledge and agree that KWIPPED's sole responsibility upon exercise of the Purchase Option is to collect the purchase price from Buyer and to pass payment through to Seller in accordance with the terms of the Purchase Order. KWIPPED MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE EQUPIMENT WHATSOEVER.
Security Deposit. If the Rental specifies that a security deposit is required, Renter understands and agrees that it shall be held as security for Renter's faithful performance of Renter's obligations under this Agreement. Provided no default by Renter has occurred under this Agreement, any security deposit will be returned to Renter within 30 days after the return of the Equipment to Supplier. If, however, any default by Renter under this Agreement has occurred, including any damage to the Equipment upon return to Supplier, Supplier may withhold that portion of the security deposit necessary to cover damages suffered by Supplier. No interest will be paid or accrue on the security deposit, and it may be comingled with other funds.
Taxes. Renter shall pay any and all sales, use, property, and other taxes, fees, and other assessments and governmental charges, together with any penalties or interest thereon, levied on or associated with its rental of the Equipment, which will be invoiced as part of the rental payment to be made by Renter. Renter must upload to Supplier via the KWIPPED website any exemption certificate to receive tax exempt treatment under this Agreement.
Cancellations/Early Returns. If Renter cancels a rental prior to the original "End" date, as defined under Section 2. "Term", Renter shall pay a cancellation fee equal to the cancellation fee specified in the Rental or, if no such fee is specified in the Rental, a fee equal to 20% of the remaining value of the rental contract, as well as a $65 cancellation processing fee.
RELEASE AND INDEMNITY OF KWIPPED. Each party agrees and acknowledges that it is using the services and website provided by KWIPPED, Inc. ("KWIPPED") to facilitate the rental transaction between Renter and Supplier and at that party's own risk, that KWIPPED is not an agent for either party, that the KWIPPED services and website are provided on an "AS IS" and "AS AVAILABLE" basis, and to the extent permitted by applicable law, KWIPPED excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The parties agree that this Section applies, without limitation, to any shipping services either party may engage through the KWIPPED White Glove Shipping solution as described on the website, that KWIPPED has no liability to any party using such shipping solution, and that a party's sole remedies with respect to the shipping solution is with the shipping company providing the shipping. With respect to any dispute each party has with one or more users of KWIPPED's services or website, that party releases KWIPPED (and its affiliates and subsidiaries, and their respective shareholders, officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release each party expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which that party may know or suspect to exist in its favor at the time of agreeing to this release. Each party further agrees to indemnify and defend KWIPPED and its affiliates and their respective shareholders, directors, officers, employees, attorneys and agents (the "KWIPPED Indemnified Parties"), and hold each of them harmless from and against any and all losses, damages, claims, demands, expenses, fines, penalties, suits and liabilities, including without limitation, reasonable attorneys' fees ("Losses") that the KWIPPED Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) this Agreement, (b) the ownership/rental of the Equipment, as applicable, (c) a breach of this Agreement by such party, (d) the gross negligence, willful misconduct, fraud, or misrepresentation of such party or of persons acting for or on behalf of such party pursuant to this Agreement, including without limitation, officers, directors, employees, agents and contractors of such party, (e) such party's improper use of KWIPPED's services or the website, or (f) such party's breach of any law or the rights of a third party.
Limited Warranty; Limitation of Liability of Supplier
Supplier represents that Renter shall be entitled to quietly hold and possess the Equipment during the rental term and will not interfere with that right as long as Renter is in compliance with this Agreement.
Supplier expressly disclaims any liability in the event that any mechanical breakdown or failure of the Equipment should result in damage, loss, delay or any other interference in Renter's work product. Supplier's exclusive obligation and liability to Renter shall be to repair the equipment or provide Renter with the same or similar equipment, if the need for such repair or replacement arises from the normal and proper use of the Equipment in accordance with its intended purpose, in order to accomplish the same work, and to credit Renter for any rental payments made during such breakdown or failure due to normal and proper use, or to terminate this Agreement. The parties agree that the term shall be extended for any time lost due to breakdown or failure of the Equipment due to normal and proper use, unless Supplier elects to terminate the Agreement. SUPPLIER SHALL NOT BE LIABLE FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED BY THE EQUIPMENT OR ANY DEFECT OR INADEQUACY THEREOF. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT.
Supplier shall not be responsible for any of Renter's material remaining in Supplier's Equipment upon its return.
SUPPLIER WARRANTS TO RENTER THAT THE EQUIPMENT WILL BE FULLY OPERATIONAL AND FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR THE PERIOD OF THE RENTAL. OTHER THAN THE FOREGOING LIMITED WARRANTY, SUPPLIER MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT OR THE MATERIAL OR WORKMANSHIP IN THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THERETO, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SUPPLIER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT (OTHER THAN THE FOREGOING LIMITED WARRANT) THE EQUIPMENT IS RENTED TO RENTER "AS IS" AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY RENTER. RENTER HAS MADE THE SELECTION OF THE EQUIPMENT FROM THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY SUPPLIER. RENTER FURTHER REPRESENTS THAT ALL ITEMS OF EQUIPMENT ARE OF SIZE, CAPACITY AND DESIGN SELECTED BY RENTER. EXCEPT AS PROVIDED IN THIS SECTION 11, SUPPLIER IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR ITS OPERATION.
Renter agrees to indemnify and defend Supplier and its shareholders, directors, officers, employees, attorneys and agents (the "Supplier Indemnified Parties"), and hold each of them harmless from and against any and all Losses that the Supplier Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) this Agreement, (b) Renter's use of the Equipment, (c) a breach of this Agreement by Renter, or (d) the gross negligence, willful misconduct, fraud, or misrepresentation of Renter or of persons acting for or on behalf of Renter pursuant to this Agreement, including without limitation, officers, directors, employees, agents and contractors of such party.
Force Majeure. Neither party shall be held liable for breach of this Agreement in the event that all or substantially all of its obligations under this Agreement are materially interfered by reason of any cause or occurrence beyond the control of such party, including without limitation, machine malfunction (except to the extent caused by intentional or grossly negligent acts of such party, its employees or agents), fire, flood, epidemic, earthquake, explosion, accident, war, blockage, embargo, act of public enemy, civil disturbance, labor dispute (or threatened disputes). If the force majeure events prevents Supplier from performing its obligations hereunder, Renter may terminate this Agreement without liability and rent the Equipment from another supplier. If the force majeure events prevents Renter from performing its obligations hereunder, Supplier may terminate this Agreement without liability and rent the Equipment to someone else or otherwise make use of the Equipment.
Default by Renter.
If Renter fails to perform or fulfill any obligation under this Agreement, other than due to a force majeure event as specified in the Section titled "Force Majeure" above, Renter shall be in default of this Agreement. Subject to any statute, ordinance or law to the contrary, Renter shall have seven (7) days from the date of notice of default by Supplier to cure the default. If Renter does not cure a default in such time frame, Supplier may at Supplier's option (a) cure such default and the cost of such action may be added to Renter's financial obligations under this Agreement; or (b) declare Renter in default of this Agreement. If Renter shall become insolvent, cease to do business as a going concern, if applicable, or if a petitions has been filed by or against Renter under the Bankruptcy Act or similar federal or state statute, Supplier may immediately declare Renter in default of this Agreement. In the event of default, Supplier may, at its option, holder Renter liable for any difference between the rent that would have been payable under this Agreement during the balance of the unexpired term and any rent paid by any successive renter if the Equipment is re-let minus the cost and expenses of re-letting and taking possession of the Equipment, if applicable. If Supplier is unable to re-let the Equipment during the remaining term of this Agreement, after default by Renter, Supplier may at its option hold Renter liable for the balance of the unpaid rent under this Agreement if this Agreement had continued in force.
Renter, upon execution of this Agreement, and during all times that the Equipment is on Renter's premises, grants Supplier an irrevocable right of entry to Renter's premises for the sole and limited purpose of Supplier's reclamation of its Equipment in the event that Renter defaults under this Agreement.
Assignment. This Agreement shall not be assigned by Renter without the prior written consent of Supplier. Upon consensual assignment, this Agreement and the rights and obligations hereunder shall be binding upon the successors and assigns of Renter.
Governing Law. This Agreement shall be governed by and construed according to the laws of the state where Supplier's headquarters are located, applicable to contracts entered into and wholly performed in such state, and irrespective of any conflicts of law rules related thereto.
Partial Invalidity. Nothing contained in this Agreement shall be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision of the Agreement and any statue, law, ordinance, order, or regulation, the latter shall prevail, but in such event, any provision of this Agreement so affected shall be curtailed and limited to the extent necessary to bring it within the legal requirements. In the event that any portion of these terms and conditions shall be held to be invalid or unenforceable in a court of law or equality; (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the enforceable provision; and (ii) the validity and legality of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and shall remain in full force and affect.
No Waiver. The failure of either party to insist upon the other party's performance of any obligations hereunder shall not be construed as a waiver of or the breach of any obligation of either party or of any subsequent breach of which obligation. The failure of either party to exercise any right or remedy which it may have hereunder or under the law shall not be construed as a waiver of any other right or remedy which the party may have hereunder or under the law.
Cumulative Remedies. Any right and remedy belonging to Supplier hereunder or under the law shall be deemed cumulative and not exclusive of one another and the exercise by Supplier of any such right or remedy shall not preclude Supplier from exercising or enforcing any other right or remedy it may have.
Attorney's Fees. Upon a dispute under this Agreement, the prevailing party shall be reimbursed by the non-prevailing party for any and all commercially reasonable expenses incurred including legal expenses and actual reasonable attorney fees, in enforcing the terms and provisions of this Agreement.
Arbitration. All disputes arising from this Agreement, or from any other agreement that exists between the parties to this Agreement, shall be referred for binding arbitration under the rules of the American Arbitration Association, with such arbitration to be held in the city where the Supplier's headquarters are located. In the event that arbitration is found not to apply to the parties or to a particular claim or dispute under this Agreement, Renter hereby irrevocably consents to the jurisdiction of the state and federal courts of the State where Supplier's headquarters are located, to accept service of all summons, complaints, and other process of such court(s), and that such court(s) is a convenient forum for resolution of disputes arising out of or related to this Agreement.
Notices. All notices to be given hereunder must be in writing and shall be given by the parties hereto only in one of the following ways: (1) by personal delivery, (2) by certified mail, postage prepaid, or (3) by facsimile, with confirmation of receipt, to the contact person and address specified in the Rental.
Miscellaneous. This Agreement and the Rental contain the entire understanding between the parties and supersedes all prior understandings of the parties hereto relating to the subject matter hereof. This Agreement may not be modified, nor may any provision be waived, except by an instrument in writing, signed by both parties. Paragraph headings used herein are for convenience only and shall not be used in any way to interpret the provisions of this Agreement. Supplier and Renter hereby accept each other's electronic signature as binding insofar as such signatures relate to this Agreement and any other dealings between the parties to this Agreement.
Version/Last Updated: Oct 15, 2018
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