Focus Lens Rentals LLC
Equipment Lease Agreement | November 20, 2008
THIS EQUIPMENT LEASE AGREEMENT ("Lease") is made and effective by clicking on the “Confirm Order” button, by and between Focus Lens Rentals LLC, ("Lessor") and current user ("Lessee"). Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor, certain tangible personal property (“Equipment”). By clicking on the “Confirm Order” button, Lessee agrees to be bound by these Terms and Conditions, whether or not Lessee has read them. Lessor may at its sole discretion modify these Terms and Conditions at any time and any modifications shall become effective immediately as posted on the Focus Lens Rentals web site. By clicking on the “Confirm Order” button, Lessee indicates acceptance of any modified Terms and Conditions.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows:
1) Lease.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the described equipment (the "Equipment"): as shown in the order preview.
2) Right to Lease.
LESSOR WARRANTS THAT LESSOR HAS THE RIGHT TO LEASE THE EQUIPMENT, AS PROVIDED IN THIS LEASE.
3) Disclaimer.
Every effort is made to assure descriptions and prices are correct. Lessor reserves the right to correct errors as needed. All prices and availability are subject to change without notice.
4) Order Acceptance.
Lessee’s receipt of an electronic or other form of order confirmation does not signify Lessor’s acceptance of Lessee’s order, nor does it constitute confirmation of Lessor’s offer to rent. Lessor reserves the right at any time after receipt of Lessee’s order to accept or decline Lessee’s order or to supply less than the quantity Lessee ordered of any item for any reason.
5) Term.
The term of this Lease shall commence on the day after the first attempt by the shipper to deliver the Equipment, and expire on the last day of the rental. The last day of the rental is defined as the commence date plus the amount of time shown in the order as the rental duration as measured in calendar days. The Equipment must be return shipped to Lessor during business hours on or by the last day of the rental. In the event the last day is a Sunday or shipper holiday, a one-day shipping extension is automatically given.
6) Rent, Shipping and Deposit.
The rent for the Equipment and all shipping charges shall be paid in advance in full by the Lessee. Should a deposit be required, the deposit for the Equipment shall be paid in advance in full by the Lessee.
7) Shipping.
Lessee is responsible for shipping and shipping insurance charges for the Equipment to Lessee’s premises and back to Lessor. Lessee will be charged both outgoing and return shipping with insurance at the time of Equipment shipment by Lessor. All shipments will be executed via the carrier of Lessor’s choice and will require Lessee’s signature at delivery.
Lessor will send Lessee an email at the email address Lessee has provided when Equipment is shipped. Lessor will send Lessee an email at the email address Lessee has provided when the Equipment rented by Lessee has been received by Lessor.
Lessor & Lessee cannot guarantee when a shipment will arrive and is not responsible for costs incurred to Lessor or Lessee based upon carrier delays.
8) Multiple Product Orders.
For a multiple product order, Lessor will make every attempt to ship all products contained in the order at the same time. Products that are unavailable at the time of shipping will be shipped as they become available, unless Lessee notifies Lessor of their alternate wishes to this end. Lessee will only be charged for products contained in a given shipment, plus any applicable shipping charges. Lessee will only be charged for shipping at the rate quoted on Lessee’s rental receipt.
9) Cancellations.
Cancellation requests by Lessee are made by contacting Lessor via phone or email and approval must be given and acknowledged by Lessor. Approved cancellations are subject to the following terms:
a) If the item has not yet shipped, a cancellation approval by Lessor prior to 24 hours before Lessee required ship date will result in no charge.
b) If the item has not yet shipped a cancellation approval by Lessor within 24 hours of Lessee’s required ship date will result in a one week rental charge.
b) Cancellation approval by Lessor post Lessor shipment will result in a 1 week rental charge as well as a charge for round-trip shipping and insurance.
10) Use.
Lessee shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances and regulations in any way relating to the possession, use, or maintenance of the Equipment.
11) Repairs.
Lessee, at its own cost and expense, shall keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the Equipment in good mechanical working order. Lessee shall not in any way repair or materially alter the physical or otherwise makeup of the Equipment. All repairs to the Equipment shall be made by Lessor or Lessor’s designate.
12) Late Returns.
Should the Equipment not be return shipped by Lessee on or before the last day of the rental, rental fees will continue to accrue at a pro-rated daily rate based upon the term of the initial rental. In the event the Equipment is not return shipped five (5) days after the last day of the rental, the Equipment will be considered stolen and the Lessee’s credit card will be charged for the full retail amount of the Equipment.
13) Damage.
Lessee hereby assumes and shall bear the entire risk of damage to the Equipment from any and every cause whatsoever. No damage to the Equipment or any part thereof shall impair any obligation of Lessee under this Lease which shall continue in full force and effect through the term of the Lease.
If the Lessee has not notified Lessor of damage within three (3) hours of receiving the Equipment, both parties agree the Equipment was received in good working order.
In the event that Lessee claims the Equipment failed rather than was damaged, the report of the factory service center will be considered binding concerning the determination of Equipment failure or damage. Lessor expressly reserves the right to choose the repair method and venue.
In the event of damage of any kind whatever to the Equipment, Lessee shall, at Lessor's option settle with one of the following conditions:
a) Place the same in good repair, condition and working order; or
b) Replace the same with like equipment in good repair, condition and working order; or
c) Pay to Lessor the replacement cost of the Equipment.
Regardless of settlement above, Lessee shall pay to Lessor the lost rental income due to the Equipment being in a non-rentable state for the period between the last day of the rental and settlement.
14) Damage Waiver.
Lessor offers Lessee the option to purchase a Damage Waiver for unintentional damage to the Equipment during the rental period. Said Damage Waiver must be purchased and paid in full by Lessee prior to Equipment receipt by Lessee. The determination of whether damage is unintentional and not abuse is at the sole discretion of the Lessor. In the event of damage covered by this Damage Waiver, the Lessee will pay Lessor a deductible equal to 15% of the original purchase value of the Equipment rented to Lessee. Valuation of the Equipment is within the sole discretion of Lessor.
With the Damage Waiver, Lessee will not be responsible for the lost rental income due to the Equipment being in a non-rentable state.
The Damage Waiver does not cover loss, theft or intentional damage.
15) Loss & Theft.
Lessee hereby assumes and shall bear the entire risk of loss to the Equipment from any and every cause whatsoever. No loss of the Equipment or any part thereof shall impair any obligation of Lessee under this Lease which shall continue in full force and effect through the term of the Lease.
In the event of loss of the Equipment, Lessee shall, at Lessor's option settle with one of the following conditions:
a) Replace the same with like equipment in good repair, condition and working order; or
b) Pay to Lessor the replacement cost of the Equipment.
Regardless of settlement above, Lessee shall pay to Lessor the lost rental income due to the Equipment being in a non-rentable state for the period between the last day of the rental and settlement.
16) Insurance:
Lessee shall be responsible to maintain insurance on the Equipment with losses payable to Lessor against loss, fire, theft, collision, and other such risks as are appropriate and specified by Lessor. Upon request by Lessor, Lessee shall provide proof of such insurance.
17) Surrender.
Upon the expiration or earlier termination of this Lease, Lessee shall return the Equipment to Lessor in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Equipment at Lessee's cost and expense via the shipping method of Lessor's choice. Ordinary wear and tear is to be determined at the discretion of the Lessor within the confines of the reasonably common and ordinary meanings of those terms. Lessee will be responsible for proper packaging of the return shipment using shipping and packaging materials as provided by Lessor in the order shipment.
Lessor’s physical acceptance of the Equipment upon return by Lessee shall not represent Lessor’s determination as to condition of Equipment upon return. Lessor reserves the right to accept Equipment upon return by Lessee and make determinations regarding the condition of the Equipment within a reasonable amount of time. Lessor’s determination as to the condition of the Equipment upon return by Lessee is binding under this Section and Section 13 (“Damage.”).
18) Taxes.
Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances. Lessee, or Lessor at Lessee's expense, shall report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Equipment, and other taxes, fees and governmental charges similar or dissimilar to the foregoing, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency, or department thereof, upon the Equipment or the purchase, use, operation or leasing of the Equipment or otherwise in any manner with respect thereto and whether or not the same shall be assessed against or in the name of Lessor or Lessee. However, Lessee shall not be required to pay or discharge any such tax or assessment so long as it shall, in good faith and by appropriate legal proceedings, contest the validity thereof in any reasonable manner which will not affect or endanger the title and interest of Lessor to the Equipment; provided, Lessee shall reimburse Lessor for any damages or expenses resulting from such failure to pay or discharge.
19) Lessor's Payment.
In case of failure of Lessee to pay fees, assessments, charges and taxes, all as specified in this Lease, Lessor shall have the right, but shall not be obligated, to pay said fees, assignments, charges and taxes, as the case may be. In that event, the cost thereof shall be repayable to Lessor within ten (10) business days, and failure to repay the same shall carry with it the same consequences, including interest at ten percent (10%) per annum, as failure to pay any installment of rent.
20) Indemnity.
Lessee shall indemnify Lessor against, and hold Lessor harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, loss, penalties and liabilities, including reasonable attorney's fees and costs, arising out of, related to, connected with, or resulting from Lessee's use of the Equipment, including without limitation the manufacture, handling, transportation, selection, delivery, possession, use, operation, or return of the Equipment during the Term or while the Equipment is in the possession or control of Lessee.
21) Default.
If Lessee fails to observe, keep or perform any other provision of this Lease required to be observed, kept or performed by Lessee, Lessor shall have the right to exercise any one or more of the following remedies:
a) To declare the entire amount of rent and/or outstanding account balance hereunder immediately due and payable without notice or demand to Lessee.
b) To take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. Lessee hereby waives any and all damages occasioned by such taking of possession.
c) To sue for and recover all rents, and other payments due, including lost equity or lost rental income, then accrued or thereafter accruing.
d) To terminate this Lease.
e) To make a charge to the renter’s credit card for all outstanding payments due including but not limited to the replacement value of the Equipment.
f) To pursue any other remedy at law or in equity. Notwithstanding any repossession or any other action which Lessor may take, Lessee shall be and remain liable for the full performance of all obligations on the part of the Lessee to be performed under this Lease and all cost incurred by Lessor relative to said default shall be paid by Lessee. All of Lessor's remedies are cumulative, and may be exercised concurrently or separately.
g) In the event of litigation to recover any damages, renter is held responsible for all court costs and legal fees incurred by Lessor.
22) Payment & Collections.
Lessee agrees that all fees and/or outstanding charges, including but not limited to Equipment rental fees, overdue/late rental fees, shipping charges, Damage Waiver fees, repair costs, replacement costs, attorney fees and collection fees will be charged to the same credit card provided by Lessee for the initial rental purchase.
If any charges are denied by the Lessee’s credit card the Lessee agrees the following actions will be taken:
a) The account will be turned over to Lessor’s collection agency, which immediately results in the addition of incremental attorney and collection fees. These fees are not negotiable and the collection process will continue until these fees are collected, even if Lessee satisfies their account debt with a different means.
b) For balances of sufficient value Lessor’s collection agency may employ repossession agencies to collect the original equipment or goods sufficient to repay the Lessee’s account balance.
c) Lessor will report all required Lessee personal information to Lessor’s collection agency as required to support the collection process.
d) Lessor’s collection agency does report Lessee’s account default to the three main credit reporting agencies.
e) In the event of theft by the Lessee, interstate theft charges will be filed and a bench warrant obtained.
23) Bankruptcy.
Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Lessee, or if the Lessee is adjudged insolvent, or if Lessee makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Lessee is a party with authority to take possession or control of the Equipment, Lessor shall have and may exercise any one or more of the remedies set forth in Section 17 (“Surrender.”) above; and this Lease shall, at the option of the Lessor, without notice, immediately terminate and shall not be treated as an asset of Lessee after the exercise of said option.
24) Ownership.
The Equipment is, and shall at all times be and remain, the sole and exclusive property of Lessor; and the Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Lease.
25) Additional Documents.
If Lessor shall so request, Lessee shall execute and deliver to Lessor such documents as Lessor shall deem necessary or desirable for purposes of recording or filing to protect the interest of Lessor in the Equipment including, but not limited to a UCC financing statement.
26) Assignment.
Lessee shall not assign this Lease or its interest in the Equipment without the prior written consent of Lessor.
27) Headings.
Headings used in this Lease are provided for convenience only and shall not be used to construe meaning or intent.
28) Typographical Errors.
Lessor reserves the right to cancel any order for any reason, including price mistakes, typographical errors et al. Lessor shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and Lessee’s credit card charged. If Lessee’s credit card has already been charged and Lessee’s order is canceled, Lessor shall immediately issue a credit to Lessee’s credit card account.
29) Waiver.
The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. The acceptance of rent by Lessor does not waive Lessor’s right to enforce any provisions of this Agreement.
30) Governing Law.
This Lease shall be enforced according to the laws of Douglas County, the State of Nebraska. Lessee and Lessor agree that the United States District Court with jurisdiction for Douglas County, Nebraska and/or the Nebraska Superior Court with jurisdiction for the County of Douglas Nebraska shall have exclusive jurisdiction over any dispute between Lessee and Lessor relating in any way to the Lessor’s service or website or this Agreement.
These Terms and Conditions will supersede any terms and/or conditions Lessee includes with any purchase order, email, letter, other document, regardless of whether Lessor signs the purchase order, email, letter, other document or not.
Lessor reserves the right to make changes to this site and these Terms and Conditions at any time.
31) Entire Agreement.
This instrument constitutes the ENTIRE AGREEMENT between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto.
32) Severability.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
33) Limitation of Liability.
THE CONTENTS OF THE LESSOR’S WEBSITE, AND THE EQUIPMENT LESSOR DELIVERS ARE PROVIDED "AS IS." LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT EQUIPMENT’S ACCURACY OR FUNCTIONALITY. LESSOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE LESSOR’S WEBSITE, FOR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT CONTAINED ON THE LESSOR’S WEBSITE, FOR ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE CONTENT PROVIDED ON THE LESSOR’S WEBSITE, OR FOR ANY CONDUCT BY USERS OF THE LESSOR’S WEBSITE. TO THE FULL EXTENT PERMISSIBLE BY LAW, LESSOR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES ABOUT THE EQUIPMENT LESSOR DELIVERS, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, LESSOR DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE LESSOR’S WEBSITE IS ACCURATE, COMPLETE, OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
IN NO EVENT SHALL LESSOR BE LIABLE TO LESSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY EQUIPMENT OR THE INFORMATION ON LESSOR’S WEBSITE. WHILE LESSOR WILL MAKE A REASONABLE EFFORT TO RETURN ANY NON-LESSOR PROPERTY IT RECEIVES, LESSOR WILL NOT BE LIABLE FOR ANY LOSSES OF OR DAMAGE TO SUCH PROPERTY.
Focus Lens Rentals LLC | November 20, 2008
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