LITEZILLA, LLC TERMS AND CONDITIONS FOR RENTALS
These terms and conditions of rental (these “Terms”) are the only terms which govern the rental of the goods (“Goods”) by LiteZilla LLC (“Lessor” or “LiteZilla”) legally conducting business within the State of Wisconsin, to the Lessee named on the reverse side of these Terms or in the accompanying Rental Confirmation, Rental Agreement, and/or Invoice (“Lessee” or “you”). These Terms are made and entered on the rental start date (the “Effective Date”) by and between LiteZilla and you collectively referred to herein as the “Parties.”
- Equipment Subject to this Agreement.
The Lessor shall rent the equipment (the “Equipment”) listed in the Rental Confirmation, Rental Agreement, and/or Invoice to the Lessee whom must adhere to the terms and conditions within this Agreement.
- Payment Terms.
The rental fee is based on the rate listed in the Rental Confirmation, Rental Agreement, and/or Invoice. Additional charges shall be added in the event the Equipment is damaged, missing any parts, or returned later than rental end date. Lessee shall pay to the Lessor an additional service charge of the current daily rental fees for each day the Equipment has not been returned. Current Fees can be found here: http://LiteZilla.com/rental-pricing
All invoices are due upon receipt.
- Cancellation Policy.
If Lessee cancels the rental prior to the Rental Start Date, a cancellation fee based on the timelines described below shall be paid by the Lessee to Lessor.
- If cancellation occurs: Fifteen (15) to twenty-one (21) days prior to the Rental Start Date, a cancellation fee equal to 25% of the rental fee shall be paid.
- If cancellation occurs: Eight (8) to fourteen (14) days prior to the Rental Start Date, a cancellation fee equal to 50% of the rental fee shall be paid.
- If cancellation occurs: one (1) to seven (7) days prior to the Rental Start Date, a cancellation fee equal to 75% of the rental fee PLUS any shipping fees incurred if the unit is already in transit shall be paid.
- If cancellation occurs: on the Rental Start Date, the full rental fee PLUS any shipping fees incurred if the unit is already in transit shall be paid.
- If the Lessee has pre-paid the rental fee, then Lessor shall retain an amount equal to the cancellation fee as set forth above and return any excess cash to the Lessee.
- Rental Term.
This Agreement shall begin on the above Effective Date and shall terminate on rental end date unless otherwise terminated in a manner consistent within these terms.
The Equipment shall be located at the shipping address where the Equipment was delivered by Lessor (the “Location”) during the term of this Agreement, and shall not be removed from that location without the Lessor’s prior written consent.
Lessee shall not sublease or otherwise relinquish possession or control of, or assign, pledge, hypothecate or otherwise transfer, dispose of or encumber the Equipment, this Agreement, or any part thereof or interest therein, or any right or obligation with respect thereto.
- Care and Operation.
The Equipment may only be used and operated in a careful and proper manner. The Equipment is not weatherproof or water resistant. It must be used indoors or outdoors under a covered location. During its use or storage, it should not be exposed to rain or severe weather conditions.
The Lessee shall insure the Equipment in an amount of at least $70,000. Lessee’s insurance shall name Lessor as an additional insured loss payee and waive subrogation against Lessor. Upon the written request of Lessor, Lessee shall provide Lessor with copies of the certificates of insurance and policy endorsement for the insurance coverage required by this Section 6.
Lessee shall make no alterations to the Equipment without prior written consent of the Lessor.
- The occurrence of any of the following shall constitute a default under this Agreement:
- The failure to make a required payment under this Agreement when due.
- The violation of any other provision or requirement that is not corrected within (10)
day(s) after written notice of the violation is given.
- The insolvency or bankruptcy of the Lessee.
- Upon the occurrence of any such events of default, Lessor shall the option to pursue any one or more of the following remedies without any notice or demand whatsoever:
- Terminate this Agreement in which event Lessee shall immediately return the Equipment to Lessor and if Lessee fails to do so, Lessor may, without prejudice to any other remedy it may have for possession, take possession and sue for possession of the Equipment and remove the Equipment from the Location without being liable for prosecution or any claim of damages therefore;
- Exercise any or all of the other rights and/or remedies available to Lessor at law or equity.
- In the event Lessor elects to terminate this Agreement by reason of an event of default,
then notwithstanding such termination, Lessee shall be liable for and shall pay to Lessor all rental fees accrued to the date of such termination not yet paid by Lessee. No action or omission by Lessor shall be deemed to be an election to terminate this Agreement other than an express written election from written election from Lessor to Lessee expressly terminating this Agreement.
- In the case of any event of default or breach by Lessee, Lessee shall also be liable for and
- shall pay to Lessor, in addition to any sum provided to be paid above, repossession costs incurred by Lessor and all other costs and expenses incurred by Lessor as a result of Lessee’s default or breach and the costs incurred by Lessor in enforcing or defending Lessor’s rights and/or remedies, including the costs incurred by Lessor in collecting any sum due Lessee to Lessor and reasonable attorneys’ fees.
- Lessor shall be entitled to recover from Lessee its attorneys’ fees in connection with any
- dispute arising under or related to this Agreement.
- Limitation of Liability.
- IN NO EVENT SHALL LiteZilla BE LIABLE TO Lessee OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF: (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) THE CAUSE OF ACTION, (iii) WHETHER OR NOT LiteZilla HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iv) AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL LiteZilla’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE RENTAL AND/OR SALE PROVIDED BY LiteZilla, REGARDLESS OF THE CAUSE OF ACTION, EXCEED THE TOTAL AMOUNT PAID BY Lessee TO LiteZilla FOR THE GOODS AT ISSUE. Lessee HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. PARTIES, HEREBY ACKNOWLEDGE AND AGREE THAT ANY WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY PROVISIONS SET FORTH ABOVE HAVE BEEN NEGOTIATED AND ARE FUNDAMENTAL ELEMENTS OF BASIS OF THIS AGREEMENT.
- Lessee covenants and agrees that it shall defend, indemnify and hold LiteZilla and all of its officers, agents and employees (each a, “LiteZilla Indemnitee”) harmless for any claim, loss, damage, cost, charge, expense, lien, settlement or judgment, arising out of or in connection with Lessee’s performance of the Agreement, use of the Goods in any manner other than as set forth in LiteZilla’s written or oral instructions, or Lessee’s negligent or willful acts or omissions. Lessee shall not be liable under this section for damage to persons or property directly caused or resulting from the sole negligence of LiteZilla, or any of its officers, agents or employees
- In the event any suit or other proceedings for any claim, loss, damage, cost, charge or expense covered by Lessee’s foregoing indemnity should be brought against any LiteZilla Indemnitee, Lessee hereby covenants and agrees to assume the defense thereof and defend the same at Lessee’s own expense and to pay any and all costs, charges, attorney’s fees, and other expenses as they accrue, and any and all judgments that may be incurred by or obtained against any LiteZilla Indemnitee in such suits or other proceedings. Lessee shall not agree to any settlement or judgment without LiteZilla’s consent, unless such settlement or judgment requires only the payment of money from Lessee or its insurer. In the event of any judgment or other lien being placed upon the property of LiteZilla in such suits or other proceedings, Lessee shall at once cause the same to be dissolved and discharged by giving bond or otherwise.
- Compliance with Law.
Lessee shall comply with all applicable laws, regulations and ordinances. Lessee shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Lessee shall comply with all export and import laws of all countries involved in the rental of the Goods under this Agreement. Lessee assumes all responsibility for shipments of Goods requiring any government import clearance. LiteZilla may terminate this Agreement if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on Goods.
14. Confidential Information.
All non-public, confidential or proprietary information of LiteZilla, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by LiteZilla to Lessee, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by LiteZilla in writing. Upon LiteZilla’s request, Lessee shall promptly return all documents and other materials received from LiteZilla. LiteZilla shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Lessee at the time of disclosure; or (c) rightfully obtained by Lessee on a non-confidential basis from a third party. Lessee agrees to not disassemble, reverse engineer or otherwise use the Goods to develop competing goods.
- Dispute Resolution.
- YOU AND LiteZilla ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 20. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
- You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR LiteZilla WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Risk of Loss.
Lessee shall bear all risk of loss, damage, theft, taking, destruction, confiscation or requisition (each a “Loss”) with respect to the Equipment, however caused or occasioned, which shall occur during Lessee’s use of the Equipment. IN ADDITION, Lessee HEREBY ASSUMES ALL OTHER RISKS AND LIABILITIES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH AND PROPERTY DAMAGE, ARISING WITH RESPECT TO THE USE OF THE EQUIPMENT DURING THE TERM OF THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH LOSS IS CAUSED BY LESSOR’S WILLFUL MISCONDUCT.
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the Parties, and the remainder of the provisions shall remain in full force and effect.
No waiver by LiteZilla of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by LiteZilla. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure.
LiteZilla shall not be liable or responsible to Lessee, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of LiteZilla including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, or any other event beyond its reasonable control.
All terms and provisions of this Agreement that should by their nature survive the termination shall so survive.
- Entire Agreement.
This Agreement, including any exhibits attached hereto and made part hereof, constitutes the entire agreement between Lessor and Lessee with respect of the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the Parties. No term or provision of this Agreement may be amended, altered, waived, or discharged except by an instrument in writing signed by a duly authorized officer of the party against which the enforcement of the amendment, alteration, waiver, or discharge is sought.
IN WITNESS WHEREOF, the Parties hereto have executed this Equipment Rental Agreement by a duly authorized representative effective as of the date set forth in the Rental Confirmation, Rental Agreement, and/or Invoice.