For good and valuable consideration, you and Seaside Vacations Services Corp (SVS) agree as follows:
1. As used herein, “order confirmation” refers to your order confirmation outlining your order details; “Contract” refers to your order confirmation together with these Terms and Conditions of Rental Contract; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on your order confirmation (including any “Instructions” and/or safety equipment provided per the terms of Section [or “§”] 5 below); “Site” means the address where the Item(s) will be delivered and/or used during the Term, as set forth on your order confirmation; “Customer,” “Lessee,” “you” and “your” mean the customer or “Lessee” identified on your order confirmation; and “Lessor,” “we,” “us” and “our” mean SVS.
2. You agree to rent the Rented Item(s) from SVS for the period(s) specified on your order confirmation (the “Term”), and to pay our stated rental rate(s) (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff, until the Rented Item(s) is/are returned to and accepted by SVS in the return condition required under §§ 4 and 6. Except with respect to Items we rent from one or more third-party(ies) (each, a “TPO”) and then re-rent to you (“Re-Rented Items”), SVS will retain the sole and exclusive title to the Rented Item(s) at all times. Your only right with respect to such Item(s) (including Re-Rented Item(s)) is to use it/them in full compliance with this Contract during the Term. You will not permit the taking or existence of any lien, claim, security interest or encumbrance on any such Item(s). You SHALL NOT move, loan, transfer, surrender, store, sublease or assign any Item(s) or this Contract without our prior written consent. SVS may sell and/or assign all or any part of its interests in the Item(s) and/or this Contract, in which event you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of SVS or any TPO.
3. Unless otherwise specifically agreed by SVS, all rental rates are for normal use of the Rented Item (s) on a single-event basis. Additional amounts will be due for late return(s), misuse and abuse. The Rent will not be reduced for weather delays or any other period(s) of nonuse. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). You agree: (a) to pay SVS: (i) the Estimated Rent, together with any deposit specified on your order confirmation (or if none, 20% of the Estimated Rent) in advance (the “Prepayment”); and (ii) any additional amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability to us; and (iv) unless we otherwise agree, all Prepayments are NON-REFUNDABLE inside of 7 days prior to rental start date. Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.
4. You will ensure the Site is fit for delivery, installation, and use of the Rented Item (s) at all times. If we agree to provide any services (e.g., delivery, setup, retrieval, etc.) you agree to: (a) pay our charge(s) for the same, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for delay(s) caused by any other parties, including providers of goods or services (“Other Providers”) for which you agree to indemnify, defend, and hold harmless SVS. You agree to accept full responsibility for all Item(s) for the duration of the Term, and if you are not present upon delivery and/or retrieval of any Item(s), you agree to accept the statements of our representatives regarding the same (including the condition of the Rented Item(s) and the Site). Certain Rented Items may be delivered on pallets, or in crates, carton,s or boxes, and may be stacked, bagged, racked, folded, rolle,d and/or strapped (“Packed”). You will ensure that, upon return, all such Rented Items are similarly (and properly) packed. YOU AGREE NOT TO PACK ANY RENTED ITEM UNLESS IT IS COMPLETELY DRY. PACKING WET OR DAMP RENTED ITEMS MAY RESULT IN MOLD AND/OR MILDEW, FOR WHICH YOU WILL BE LIABLE.
5. Upon your receipt of the Item(s), unless you immediately reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good repair and operating condition, free of defects, and is in all ways acceptable to you; (ii) is appropriate for your purposes; and (iii) was selected solely by you, not based on any recommendation by SVS; and (b) you: (i) have received, read and understand all training, instructions, user manuals, maintenance requirements, and other information, if any (including all EPA, OSHA, NFPA, IFC, IBC, ASSE, ASME and ANSI Standards) pertaining to the Rented Item(s) (collectively, “Instructions”); (ii) will fully comply therewith; (iii) have been made aware of the need to use all recommended and required safety equipment; (iv) will use each Item only for its intended purpose, in a reasonable and safe manner.
6. You agree to protect each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to SVS on time at the end of the Term, free of dirt, damage, burns, stains, and debris, and otherwise in good order, condition, and repair. If you fail to do so, you will pay us: ( a) Rent for each succeeding full rental period until all Item(s) has/have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You will ensure that each Item is used safely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) at the Site; and (d) in full compliance with the Instructions and all applicable laws, rules, regulations, and insurance policies at all times. You will not, nor will you permit anyone else to: (i) abuse, misuse, overuse, remove from the Site, conceal, modify, dismantle or damage any Rented Item(s); or (ii) take possession of or exercise control over any Rented Item(s), without our prior written consent (in our sole discretion).
7. In the event of a Malfunction (as defined in § 5), you will immediately cease using and evacuate the Malfunctioning Item and notify us. Provided the Malfunction did not result from your wrongful or negligent act or omission, or your breach of this Contract, we will, at our option: (a) repair the subject Item; (b) provide you with a comparable replacement; or (c) return the unused portion of the Rent and cancel this Contract. The foregoing remedy is EXCLUSIVE. We will have no other obligations regarding Malfunctions, all of which you waive, together with all associated damages per § 12.
8. You agree to maintain all insurance SVS may require, including, without limitation, (a) liability insurance with minimum limits of $1,000,000 per occurrence; and (b) property damage/inland marine insurance covering all Rented Items for the full (new) replacement value thereof. All such policies shall, as applicable: (i) name SVS as an additional insured and loss payee; (ii) be primary and non-contributory; (iii) waive subrogation against SVS; and (iv) include such other terms as we may require.
9. If and only if, we have offered, and you have elected to purchase the Optional LIMITED Damage Waiver (“LDW”) (set forth on your order confirmation if available) and paid the LDW Fee referenced therein prior to commencement of the Term, you will have no liability to SVS for 90% of the cost to repair or replace covered Rented Item(s) (“Covered Items”) which suffer physical damage during the Term; provided however, that you will remain liable for all: (a) damage to or loss of: (i) Item(s) not covered by LDW; (ii) Covered Items lost or damaged as a result of: (A) your breach of this Contract; (B) any failure to return Rented Item(s) to SVS as and when required under this Contract; (C) negligence, misuse and/or abuse; (D) use of alcohol or drugs; and/or (E) use of any Item in violation of this Contract; (b) 10% of all costs associated with repairing and/or replacing Covered Items; and (c) all costs exceeding $10,000 in the aggregate across all Covered Item(s) arising from or associated with repairing or replacing Covered Item (s). You may decline LDW if you otherwise fully comply with this Contract (including § 8). LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
10. NO WARRANTIES: SVS IS NOT THE MANUFACTURER OR DESIGNER OF ANY RENTED ITEM(S), ALL OF WHICH ARE PROVIDED “AS-IS.” neither SVS nor any TPO makes any REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS and/or good and WORKMANLIKE PERFORMANCE, as well as any warranty arising from COURSE OF DEALING, course of performance and/or USAGE OF TRADE) REGARDING ANY ITEM(S) OR SERVICE(S) referenced in this contract, NOR DOES SVS or any TPO MAKE ANY WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT, ALL OF WHICH YOU HEREBY WAIVE. NO pictures, MODELS, advertisements, DESCRIPTIONS, OR SPECIFICATIONS SHALL BE DEEMED REPRESENTATIONS OR WARRANTIES BY SVS OR ANY TPO.
11. INDEMNITY/HOLD HARMLESS: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU HEREBY: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY(IES), LOSS, DAMAGE, DESTRUCTION AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND SERVICE(S) REFERENCED in this contract, INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, CLAIMS AND DAMAGES ARISING IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, installation, STORAGE, servicing, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL thereof, WHETHER OR NOT YOUR FAULT (collectively, “risks”); (b) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, SVS and each TPO, and their respective owners, officers, managers, directors, agents, employees, insurers, representatives, subrogees, successors and assigns (each, an “Indemnitee”), FOR, FROM AND AGAINST ALL such risks (INCLUDING WITHOUT LIMITATION, ATTORNEYS’ FEES) as well as your breach of this contract; and (C) WAIVE all rights, claims and defenses under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general and special damages, against each and every Indemnitee.
12. You hereby grant us a perpetual, paid-up, royalty-free license to create, edit, distribute, display, and copy audio and visual representations that include any Rented Item(s). If SVS commences legal action to enforce this Contract, SVS will be entitled to recover its costs and expenses associated therewith (including attorneys’ fees and expenses) from you and/or any guarantor (jointly and severally) if SVS prevails. We may, without notice or liability to you, monitor and/or inspect any Rented Item(s) at any time. If any performance required of us is rendered impractical as a result of or in connection with any act or omission of/by you, any Other Provider(s), or any “Act of God” (e.g., any event, fact,t or circumstance beyond our reasonable control), we will be excused from such performance. You waive the benefits of all statutes of limitations regarding our rights and remedies. You authorize us to charge all amounts due and to be paid hereunder to any debit or credit card(s) you provide. All amounts due from you hereunder but not timely paid will bear interest at the highest rate permitted under applicable law until paid. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability to you is limited to the amount(s) actually paid by you to us under this agreement. You agree to pay all taxes (including all sales and use taxes), fines, fees, duties, assessments, and other charges related to each Item and/or this Contract.
13. Your duties hereunder are unconditional. If you or any guarantor: (a) fail to fully and timely comply with any one or more of the terms of this Contract; (b) provide any incorrect or misleading information to SVS; (c) become insolvent; or (d) die or cease conducting business, or if any Rented Item(s) shall be lost, damaged or destroyed (except to the extent covered by LDW as provided in § 9), you will be in default, whereupon, we may, without legal process or notice (and without liability to you), to the maximum extent permitted under applicable law: (i) terminate your rental; (ii) seek relief from stay; (iii) recover, empty, lock and/or disable the Rented Item(s) without being guilty of breach, trespass or liable for injuries or property damage (for which you will indemnify, defend and hold harmless SVS, its agents and employees); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Items; (vi) recover from you and/or any guarantor our associated direct and indirect damages, losses, costs and expenses (including without limitation, Rent for the remainder of the Term and attorneys’ fees); and/or (vii) pursue any other rights and/or remedies available hereunder, at law and/or in equity, all of which shall be cumulative.
14. This Contract, together with any addenda provided by SVS (including, as applicable, our forms of Temporary Structures Addendum and Debit/Credit Card Authorization), each of which is incorporated herein, represents the entire agreement between you and SVS, superseding all other agreements and representations, as well as our website and advertising. The terms of this Contract are severable. If any of the terms of this Contract shall be deemed invalid or unenforceable by any court of competent jurisdiction, such term (s) will be deleted, and the remaining terms will continue in full force and effect. This Contract cannot be further amended or extended except in writing signed by SVS. Time is of the essence. These Terms and Conditions apply to all Item(s) identified on your order confirmation and will also apply to all other Items you obtain from SVS at any time (except only as we may otherwise agree in writing). Neither our exercise, nor our failure or delay in the exercise, of any rights and /or remedies will constitute an election of remedies or a waiver of any right or remedy we may have. You acknowledge and agree that: ( i) this Contract: (A) is fair and reasonable under the circumstances; and (B) shall be interpreted under the laws of the State of Florida; and (ii) proper venue for any and all civil legal proceedings commenced under and /or in connection with this Contract shall lie solely in the federal, state and local courts located in or nearest to Miami -Dade County, FL (unless waived by SVS). You consent and submit to such jurisdiction and venue and waive all claims that such venue lies in an inconvenient forum. Digital, electronic, photocopied and facsimiled signatures and initials appearing on this Contract and /or any Addenda(um) will be deemed original.