STANDARD TERMS AND CONDITIONS
1. CANCELLATION POLICY. If the transaction specified herein is cancelled within forty-eight (48) hours of the scheduled Rental Begin Date. Lessee hereby agrees to and shall pay lessor a Restocking Fee equal to 25% of Grand Total, according to Payment Terms.
2. RENTAL CHARGES AND INTEREST. All sums owed by lessee under this Contract which are ten (10) days overdue shall bear interest at the rate of one and a half percent (1.5%) per month (18% per annum) on any sum owed and Lessee agrees to pay attorney’s fees and court costs arising from or relating to collection of any balance which is thirty (30) days or more overdue. Sums owed by Lessee hereunder shall not be subject to any abatement or set-off. All Equipment must be returned by 10:00 a.m. of the return date, and in the event the equipment is not so returned an additional days rental shall be charged for each additional day.
3. LIABILITY OF KINETIC LIGHTING, INC. Lessee acknowledges that it has examined and tested the equipment leased herein (hereinafter the Equipment), that it is in good working condition, and is fit for the particular use and purpose intended by Lessee, and Lessee accepts the Equipment as is, Lessee understands that the Equipment and any and all services or labor to be provided pursuant hereto, are leased or provided without warranty or guaranty of any kind, express or implied. Lessee further understands that KINETIC LIGHTING, INC. assumes no responsibility or liability of any nature whatsoever to any person, firm, corporation or any other type of entity for any claim, injury, damage or loss arising out of, relating to or resulting from: (a) the equipment; (b) the use of the equipment; (c) labor or services furnished pursuant to this agreement; and/or (d) the performance or nonperformance of this Agreement. Lessee hereby waives any and all claims it may have against KINETIC LIGHTING, INC. with regard to any of the forgoing. Anything to the contrary notwithstanding, in the event any equipment becomes inoperable or fails to perform as contemplated hereunder through no fault of Lessee during the rental term hereof, Lessee shall return for repairs or for exchange or replacement said Equipment to KINETIC LIGHTING, INC. during KINETIC LIGHTING, INC. regular business hours at its place of business, and if KINETIC LIGHTING, INC. does not repair said equipment or does not provide a replacement for said Equipment, Lessee’s sole right shall be to receive a pro-rata refund or credit from KINETIC LIGHTING. INC. In the event of a claim by Lessee relating to, arising out of, or resulting from the performance of services and/or labor provided for in this lease. Lessee’s sole remedy shall be to receive a pro-rata refund of credit from KINETIC LIGHTING, INC. based upon such services and/or labor.
4. LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. LESSOR SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES SUFFERED BY LESSEE DUE TO LESSOR’S FAILURE TO PROVIDE ANY OF THE EQUIPMENT AND/OR SERVICES AGREED TO BE PROVIDED BY LESSOR UNDER THIS AGREEMENT, ANY FAILURE OF THE EQUIPMENT TO OPERATE PROPERLY, AND/OR ANY OTHER MANNER OF MATTER OR THING RESULTING FROM LESSOR’S BREACH OFANY OF THE PROVISIONS OF THIS AGREEMENT.
5. USE, RETURN AND REPAIR. Liability of Lessee. Lessee agrees to return the equipment in the same condition as delivered, normal wear and tear excepted, and at the time and place specified herein, and Lessee further agrees that it shall not remove the Equipment from the State of California without the written consent of KINETIC LIGHTING, INC. If KINETIC LIGHTING, INC. does not furnish labor to operate the Equipment. the Equipment shall be used only by duly qualified employees and/or agents of Lessee. Lessee shall use the Equipment in the strict accordance with all applicable laws, according to the Equipment’s prescribed operating procedure, and only for the purpose of production contemplated and set forth in connection with this lease. Except while labor is supplied by KINETIC LIGHTING, INC., Lessee shall keep the Equipment in its sole custody and control. After delivery to Lessee. if any item of Equipment is lost, stolen, damaged or destroyed, whether by fire, theft, burglary, fraud disappearance, water or confiscation, Lessee shall pay KINETIC LIGHTING, INC. the replacement cost without deduction for depreciation of such item, provided that if any item is returned in a condition which KINETIC LIGHTING, INC., in its sole discretion, deems a reparable one. Lessee shall pay KINETIC LIGHTING, INC. the actual or estimated cost of such repairs as determined by KINETIC LIGHTING. INC. In the event of any such damage, loss, theft or destruction, or in the event of non-return. Lessee agrees that the monetary value of each item of Equipment is the value listed in KINETIC LIGHTING, INC’S office at the time KINETIC LIGHTING, INC. is notified of such fact. A copy of such list will be shown to Lessee upon request.
6. OWNERSHIP. Lessee acknowledges that KINETIC LIGHTING. INC. owns all rights, and interest in and to the Equipment and warrants that it shall keep the Equipment free of all liens, levies and encumbrances and further acknowledges that it shall be responsible for all taxes, transportation charges, duties, broker fees, bonds, fine forfeitures, penalties, and all other costs imposed upon the leasing or use of the Equipment. Lessee will not assign, transfer or sublet the Equipment or any right under this Lease, and Lessee will not pledge, mortgage, or encumber in any way the Equipment or Lessee’s rights herein, and any such assignment, transfer, sublease, pledge, mortgage or encumbrance shall be null and void. The rental rates herein will not apply to purchase of any of the Equipment, except as otherwise stated herein.
7. HOLDOVER. Lessee has no right to retain possession of said Equipment, or any part thereof, beyond the expiration or termination of this Agreement. In the event that Lessee holds over, then Lessee shall pay a daily rate, equal to the weekly rental rate specified herein, for every day that said Equipment remains in Lessee’s possession until Said Equipment is returned, in proper to working condition, to Lessor. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
8. DEFAULT. Upon termination of this Lease by Lessor, or upon the breach of any provision hereof by Lessee, or in the event that Lessee suffers or initiates any act of insolvency or bankruptcy, or in the event a receiver is appointed to take possession of all, or substantially all, of Lessee’s assets, or in the event a general assignment for the benefit of creditors is made by Lessee, or in the event any legal process of any kind is taken with regard to any item of Equipment or upon any use of Equipment, or in violation of KINETIC LIGHTING, INC’S rights, title and interest in and to the Equipment, KINETIC LIGHTING , INC. and its agents may at any time thereafter enter upon Lessee’s premises to remove all of the Equipment without any liability for damages caused by any such entry and without prejudice to KINETIC LIGHTING. INC’S right to receive the rent due pursuant to this Lease, and to recover from Lessee any and all other damages which KINETIC LIGHTING, INC. shall have sustained by reason of any breach hereof.
9. INDEMNITY. Lessee agrees to indemnify and hold KINETIC LIGHTING, INC. and KINETIC LIGHTING, INS’S shareholders, directors, officers, employees, agents, affiliates, successors and assigns, harmless from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, injuries and liabilities including attorneys fees, arising out of, connected with, or resulting from the execution of this Lease or from the use of the Equipment, save and except damages or injuries resulting from the sole negligence and/or willful misconduct of KINETIC LIGHTING, INC.
10. RESPONSIBILITY FOR DURING SHIPMENT. Unless otherwise specified herein. all costs of shipment to and from Lessee shall be Lessee’s responsibility. Lessee shall be responsible for any loss to the Equipment from any cause whatsoever occurring after delivery of the Equipment to Lessee and before possession of the Equipment is returned to KINETIC LIGHTING, INC. Acceptance by KINETIC LIGHTING. INC. of the return of the Equipment shall not be a waiver of any claims that KINETIC LIGHTING, INC. may have against Lessee arising hereunder nor a waiver of claims for latent or patent damage to the Equipment prior to such return. Delivery to Lessee shall be deemed to occur at the time Lessee takes possession of the Equipment, at the time the Equipment is provided to a location designated by Lessee, or at the time the Equipment is placed upon a common carrier for forwarding to Lessee, whichever occurs first.
11. UNION/COST AND INCIDENTALS. Lessee hereby agrees to and shall be financially responsible for all Union Fees. Venue Fees, Promoter Fees, Dock Fees, Marshaling yard Fees, Electrical Fees, Insurance Fees, Fees pertaining to Equipment Weight, Fees pertaining to Convention Centers and Exposition Centers, Fees for loading and unloading Lessor’s or Lessee’s vehicles with the Equipment, Fees pertaining to Storage of the Equipment, and any other related fees that may be applicable to said Rental.
A. EQUIPMENT. Lessee agrees, at its own expense, to insure the Equipment for its full replacement cost without deduction for depreciation, any loss of use of such Equipment, and any loss arising from the transportation and use of such Equipment. Coverage shall begin from the time the Equipment leaves the KINETIC LIGHTING, INC’S premises for Lessee’s use of such Equipment, until the time the Equipment is returned to the KINETIC LIGHTING, INC’S premises. Such insurance shall name KINETIC LIGHTING, INC. as the loss Payee for loss or damage to the Equipment. Limits of such insurance shall be sufficient to cover all Equipment and property at risk, regardless of source, but in no event less than $1,000,000.
B. BUSINESS AUTOMOBILE. Lessee agrees, at its own expense, to maintain business automobile liability insurance, including coverage for loading and unloading Equipment, and hire auto physical damage insurance, covering owned, non-owned, hired and rented vehicles. Coverage for damage shall include “‘comprehensive”‘ and “‘collision”‘. KINETIC LIGHTING, INC. shall be names as an additional insured respecting the liability coverage and as Loss Payee on the hired auto physical damage coverage. Such insurance shall provide coverage for no less than $1,000,000 in combined single limits, and actual cash value with a deductible of no more than $1,000 for physical damage on comprehensive and collision coverage.
C. WORKERS COMPENSATION. Lessee agrees to maintain, at its own expense, workers compensation I employers liability insurance, as required by law, during the duration of the rental of the Equipment.
D. COMMERCIAL GENERAL LIABILITY. Lessee agrees to maintain. at its own expense, commercial general liability insurance including coverage for independent contractors and contractual liability, specifically referring to this Agreement. Such insurance shall name KINETIC LIGHTING, INC. as an additional insured and provide that such insurance is primary coverage with respect to all insured, the limits of which must be exhausted before any obligation arises under KINETIC LIGHTING, INC’S insurance. Such insurance shall remain in effect during the term of the lease and shall include the following coverage: Broad Form Contractual Liability; Personal Injury Liability; Completed Operations, and Products Liability. Such insurance shall provide general aggregate limits of not less than $1,000,000 and per occurrence limits of not less than $1,000,000.
E. INSURER. All insurance obtained by Lessee pursuant to the above provisions shall be issued by an insurance carrier authorized to do business in the State of California with a BEST rating of A or better, and shall be deemed the primary insurance, issued on a non-contributory basis. ‘
F. WAIVER. All insurance maintained by Lessee pursuant to the foregoing Terms and Conditions shall contain a waiver of subrogation against KINETIC LIGHTING, INC. Lessee shall provide KINETIC LIGHTING. INC. with 30 days written notice prior to the effective date of any cancellation or material change to any insurance maintained by Lessee pursuant to the foregoing Terms and Conditions.
G. CERTIFICATE OF INSURANCE. Before obtaining possession of the Equipment, Lessee shall provide KINETIC LIGHTING, INC. a Certificate of Insurance and applicable endorsements, including additional insured and loss payee endorsements confirming each of the coverage specified in the foregoing Terms and Conditions. All Certificates of Insurance must be signed by an authorized agent of the insurance carrier.
13. LEGAL PROCEEDINGS. This Lease shall be governed by the laws of the State of California. Lessee agrees that any and all proceedings arising from or resulting from the execution of this Lease shall be brought in the Superior Court of the State of California for the County of Los Angeles. Lessee agrees to pay KINETIC LIGHTING, INC’S costs and attorney’s fees in having to enforce the Terms and Conditions of this agreement. THE PARTIES AGREE THAT IF LESSOR SHALL BREACH THE PROVISIONS OF THIS AGREEMENT BY FAILING TO PROVIDE ANY EQUIPMENT ANDIOR SERVICES PURSUANT TO THE TERMS OF THIS AGREEMENT OR IN ANY OTHER MANNER. IT WOULD BE EXTREMELY DIFFICULT TO DETERMINE THE FULL AMOUNT AND EXTENT OF THE ACTUAL MONETARY DAMAGES SUFFERED BY LESSEE AND PROOF OF SUCH DAMAGES WOULD BE SPECULATIVE AT BEST. THEREFORE, THE PARTIES HAVE AGREED THAT IN ANY SUCH EVENT, LESSOR SHALL BE OBLIGATED TO PAY TO LESSEE THE SUM OF $750.00 AS LIQUIDATED DAMAGES AND LESSEE SHALL ACCEPT SUCH SUM IN LIEU OF ANY AND ALL OTHER MONETARY DAMAGES AS HAVE BEEN OR MAY HAVE BEEN SUFFERED BY LESSEE BY REASON OF LESSOR’S SAID BREACH.
14. OBTAINING GOVERNMENT PERMITS, LICENSES LAWS. Lessee is responsible for obtaining all government permits and licenses pertaining to use and/or operation of the Equipment and for compliance with all applicable laws and regulations governing the use and/or operation of the Equipment.
15. PENAL CODE PROVISIONS. Lessee acknowledges it is aware that California Penal Code Section-484 provides that intent to commit theft by fraud may be presumed if one who has leased or rented the personal property of another pursuant to a written contract fails to return the personal property to its owner within twenty (20) days after the owner has made written demands following the expiration of the lease or rental agreement. Lessee also acknowledges it is aware that California Penal Code Section-484 provides that such intent may be presumed if one presents to the owner of personal property identification which bears a false or fictitious name or address for the purpose of obtaining a lease or rental agreement covering the property.
16. GENERAL PROVISIONS. This ~ease expresses the entire agreement of the parties, and any amendments hereto must be made in writing. No term, representation or warranty, express or implied, not herein set forth shall bind KINETIC LIGHTING, INC. The terms and conditions (including the purpose) on this Lease as set forth on the front side hereof, as well as in these Standard Terms and Conditions, shall apply to any and all equipment leased by Lessee from KINETIC LIGHTING, INC. and any and all services and/or labor provided or to be provided by KINETIC LIGHTING, INC. to Lessee from and after the date of execution hereof for which no separate written lease is executed. Each individual executing and delivering this Agreement on behalf of a corporate party or other entity hereby warrants and represents to the other Parties that he or she has been duly authorized and empowered to do so. This Agreement shall inure to the benefit of and be binding upon all successors of the parties and assigns of the Lessor. Any assignment or attempted assignment of this Agreement shall not relieve the assignor of its obligations under this Agreement. It is understood and agreed that time is of the essence with regard to all payments due hereunder. Performance of any covenant of KINETIC LIGHTING, INC. hereunder may be suspended by KINETIC LIGHTING, INC. to the extent it is delayed, hindered or prevented because of any act of natural disaster, weather, terrorism, force majeure, war, government regulation, labor dispute, shortage of necessary supplies or personnel, or other matters beyond its control, including without limitation, failure or delay of delivery by common carrier for any reason whatsoever. In the event KINETIC LIGHTING, INC. is prevented from performance hereunder due to any of the circumstances set forth in the preceding sentence, KINETIC LIGHTING. INC., in its sole discretion, may be relieved of performance hereunder without any liability whatsoever to Lessee for any reason except that Lessee shall be entitled to a pro-rata refund or credit for any Equipment not delivered to Lessee and/or services and labor not provided by KINETIC LIGHTING, INC. Notices hereunder shall be given in writing and mailed by certified mail, return receipt requested to either party to the addresses specified in the Agreement. The waiver by KINETIC LIGHTING, INC. of any breach of any term, condition or covenant herein shall not be deemed a waiver of any other breach of the same or any term, condition or covenant. Section headings herein are for convenience and shall not be deemed to be among the terms, conditions or covenants herein.