Rental & Services Contract
TERMS AND CONDITIONS OF RENTAL/SERVICE CONTRACT
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Zynergy Venture, LLC, a Florida limited liability company (“ZYNERGY”) and the undersigned Lessee (hereinafter also referred to as “you” and “your”) hereby agree as follows:
(1) Definitions: In addition to the terms defined elsewhere in these Terms and Conditions of Rental/Service Contract, as used herein, the following terms will have the meanings set forth next to each below:
(2) Transaction(s): You hereby agree to (a) rent the Rented Item(s) from ZYNERGY for the entire Term, and (b) engage ZYNERGY and/or the applicable third-party contractor(s) to perform the Service(s), and to fully and timely pay all charges accruing hereunder, without proration, reduction or setoff, until the later of (x) the scheduled Termination Date/Time, or (y) the date: (i) all Rented Item(s) is/are returned to and accepted by ZYNERGY, and/or (ii) all Service(s) have been terminated.
(3) Rent and Service Charges: Unless otherwise specifically agreed by ZYNERGY:
(5) Cancellations: Except only as otherwise provided in this Contract (including without limitation, Sections (16)(b) and (17) hereof) and/or any VIP Services Addendum (if applicable), if you cancel your reservation of any Rented Item(s) or Service(s) (whether requested individually or in any package or grouping of any product(s) and/or service(s) made available by ZYNERGY) prior to the Commencement Date/Time, then provided you have otherwise complied fully with this Contract, we will refund to you within a reasonable time thereafter a portion of your Prepayment equal to the following, depending on the amount of advance notice of cancellation you provide to us:
Regular Cancellation Policy
|72 hours||100% refund||5 days||100% refund|
|48 hours||50% refund||72 hours||50% refund|
|24 hours||25% refund||48 hours||25% refund|
ZYNERGY Worry-Free Coverage
(see section 16)
|12 hours||100% refund||24 hours||100% refund|
Prepayments are otherwise Non-Refundable in all events, and you hereby waive all claims to the contrary.
(6) Ownership of Rented Item(s): Except with respect to Rented Items which
ZYNERGY rents from one or more third parties (each, an “Owner”) and then re-rents to you (“re-rented items”), ZYNERGY owns and will retain title to all Rented Items at all times (the applicable Owner(s) shall retain title to and ownership of all re-rented items). 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 or encumbrance on any such Item, and you acknowledge that you have no right, title or interest (including any right of purchase) in or with respect to any of such Rented Item(s). Except only as expressly set forth in this Section (5), Prepayments are non-refundable in all events.
(7) Assignment and Subleasing: You may not transfer, sublease or assign any Rented Item or this Contract without the prior written consent of ZYNERGY, and if applicable, the Owner of any re-rented item(s). ZYNERGY may sell and/or assign all or any part of its interests in the Rented Item(s) and/or this Contract, in which event, (a) you agree to attorn to each such assignee and make any or all (as directed by ZYNERGY) payments thereafter coming due hereunder to such assignee, and (b) such assignee shall not be liable or otherwise responsible for, any pre-existing obligations or liabilities of ZYNERGY.
(8) Provision of Service(s) / Terms: If we agree to perform or facilitate the provision of any Service(s) requested by you, such as delivering and/or retrieving any Item(s), providing transportation, guiding tours, taking photographs or videos, storing property, etc., whether through our representative(s) or one or more third-party(ies), you will: (a) pay our/their regular charge(s) for the same (if any); (b) be present at the agreed pickup/delivery/performance (as applicable) location(s) at the agreed time(s); and (c) ensure all providers of such Item(s) and/or Services (which may include our representatives and/or employees) have full access to each delivery/performance location(s). If and to the extent we facilitate the provision of Item(s) or Services by one or more third parties (e.g., photographers, videographers, tour guides, drivers, etc.), you acknowledge and agree that such providers are independent contractors, and are not affiliates, agents, employees or representatives of ZYNERGY, and that ZYNERGY has merely acted on your behalf to identify, locate and facilitate the performance of Services by, such third party(ies) at your request. Accordingly, you acknowledge and agree that ZYNERGY will not be deemed a provider of such third-party Service(s), and will not be responsible for any liabilities, claims, damages, losses, costs or expenses (including attorneys’ fees) arising from or in connection with the willful or negligent act(s) or omission(s) of such parties, or any other third parties (collectively, “Other Providers”), including without limitation, service interruptions, delays, personal injuries and property damage, for which you hereby release and agree to indemnify, defend and hold harmless ZYNERGY to the maximum extent permitted under applicable law. If you are not present upon delivery, performance and/or retrieval of any Item(s) or Services, you agree to accept the statements of the applicable provider(s) (which may include one or more contractor(s) and/or ZYNERGY’s representatives and/or employees), regarding the same, including status, condition, quality and quantities. All third-party deliveries of Item(s) will be F.O.B. shipping point, and all third-party returns/retrievals will be F.O.B. destination (Incoterms 2000).
(9) Receipt/Inspection: Upon your receipt of the Rented Item(s), unless you reject it/them (and notify us of such rejection, and the reason(s) for such rejection) immediately, you represent, warrant, acknowledge and agree that: (a) each Rented Item: (i) is in good repair and operating condition, free of defects and in all ways acceptable to you; (ii) is appropriate for your use; and (iii) was selected solely by you based on your own assessment of your needs, and not based on any recommendation by ZYNERGY; and (b) you: (i) have received, read and understood the training, instructions, warnings, user manuals, maintenance requirements, applicable laws, rules and regulations, and other information, if any, regarding the proper, safe and legal transportation, installation, use, maintenance, storage and/or repair of such Item(s) (collectively, “Instructions”); (ii) will fully comply therewith; (iii) have been made aware of the need to use any and all recommended and required safety equipment; (iv) will use each Rented Item only for its intended purpose, in a reasonable and safe manner; (v) will give any required notice(s) to governmental authorities; (vi) will timely obtain all necessary licenses, authorizations and approvals; (vii) will immediately cease using any Item that breaks down, malfunctions or proves defective (each, a “Malfunction”); and (viii) will ensure that all others (including without limitation, other authorized users of the Rented Items) comply with this Section.
(10) Use of Rented Item(s): You will ensure that each Rented Item is used safely and only: (a) for its intended purpose(s); (b) within its rated capacity; and (c) otherwise in full compliance with the Instructions as well as all applicable laws, rules, regulations and policies of insurance at all times. You will not, nor will you permit anyone else to: (i) abuse, misuse, overuse, remove, conceal, repair, modify, damage or destroy any Rented Item; (ii) violate any applicable law, Instruction, policy of insurance or warranty; or (iii) take possession of or exercise control over any Rented Item without our prior consent, which may be granted, conditioned or withheld in our sole and absolute discretion in each instance.
(11) Protection of Rented Item(s): You will protect each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to ZYNERGY on time, clean and otherwise in good order, condition and repair, properly serviced and maintained. If you fail to do so, you will pay ZYNERGY: (a) Rent for each succeeding full rental period until all Rented Item(s) have been returned or replaced as required; and (b) any and all costs and expenses, both direct and indirect, ZYNERGY may incur in connection with your failure to do so (including without limitation, any and all costs arising directly or indirectly from, or associated with, repairing and/or replacing such Rented Item(s) as well as lost future rentals).
(12) Malfunctions: In the event of a “Malfunction” (as defined in Section (9)), you will immediately notify ZYNERGY, and provided such Malfunction did not result from or in connection with your wrongful or negligent act or omission or from your breach of any one or more of the terms of this Contract, we will, at our option: (a) repair the subject Rented Item; (b) provide you with a comparable item as soon as reasonably possible; or (c) return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. ZYNERGY will have no other obligation(s) regarding Malfunctions, all of which you hereby waive (including any and all associated incidental and consequential damages against ZYNERGY, each Owner, and each third-party Service provider).
(13) WARRANTY WAIVER: ZYNERGY IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE RENTED ITEM(S). ALL RENTED ITEMS ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS.” EXCEPT ONLY AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN OR REQUIRED UNDER APPLICABLE LAW, NEITHER ZYNERGY NOR ANY OWNER, MAKES ANY WARRANTY, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, CAPACITY, FREEDOM FROM DEFECTS OR WORKMANLIKE PERFORMANCE) REGARDING ANY RENTED ITEM(S) OR SERVICE(S) PROVIDED BY ZYNERGY, ANY OWNER OR ANY THIRD-PARTY SERVICE PROVIDER HEREUNDER OR IN CONNECTION HEREWITH, NOR DOES ZYNERGY, ANY OWNER OR ANY THIRD-PARTY SERVICE PROVIDER MAKE ANY WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT, ALL OF WHICH YOU WAIVE. NO DESCRIPTIONS OR ADVERTISEMENTS (INCLUDING ZYNERGY’S WEBSITES), WHETHER BY ZYNERGY OR BY ANY OWNER OR ANY THIRD-PARTY SERVICE PROVIDER, CONSTITUTE REPRESENTATIONS OR WARRANTIES.
(14) INDEMNITY/HOLD HARMLESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HAVING CAREFULLY REVIEWED THIS CONTRACT AS WELL AS THE INSTRUCTIONS AND WARNINGS REFERENCED HEREIN, YOU KNOWINGLY AND VOLUNTARILY: (A) ASSUME ALL RISK OF INJURY, LOSS, DAMAGE, AND/OR DESTRUCTION OF, TO, AND/OR ARISING IN CONNECTION WITH ALL RENTED ITEM(S) AND SERVICE(S) REFERENCED HEREIN, INCLUDING WITHOUT LIMITATION, ANY AND ALL LIABILITIES, CLAIMS AND DAMAGES ARISING FROM OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DELIVERY, DEMONSTRATION, STORAGE, MAINTENANCE, REPAIR AND/OR RETAKING OF ANY SUCH ITEM(S) OR SERVICE(S), WHETHER OR NOT YOUR FAULT; AND (B) YOU HEREBY RELEASE AND DISCHARGE ZYNERGY, ALL OWNER(S) AND ALL THIRD-PARTY SERVICE PROVIDERS FROM, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS ZYNERGY, ALL OWNERS AND ALL THIRD-PARTY SERVICE PROVIDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, OWNERS, REPRESENTATIVES, INSURERS, SUBROGEES, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEYS’ FEES) ARISING FROM OR ASSOCIATED WITH ANY AND/OR ALL OF SUCH RENTED ITEM(S) AND/OR SERVICE(S). Additionally, you hereby waive any and all rights and remedies available under the Uniform Commercial Code (including without limitation, Sections 2A-508 through 522 thereof), as well as all incidental, consequential, special, and punitive damages, against ZYNERGY, each Owner and each third-party Service provider. Your duties hereunder are UNCONDITIONAL.
(15) Insurance: You will maintain all insurance ZYNERGY deems necessary, but in any event (unless we otherwise agree), if you are a business customer, at least: (a) commercial general liability insurance with minimum limits of $1,000,000 per occurrence; and (b) “all-risk” or inland marine insurance (or the equivalent), including coverage for property in transit, covering all loss of, and damage to, the Rented Item(s) for the full (new) replacement value thereof. All such policies shall: (i) name ZYNERGY and each Owner (if applicable) as an additional insured and loss payee; (ii) waive subrogation against ZYNERGY and such Owner(s); and (iii) be primary. You will: (A) provide ZYNERGY with copies of the proper endorsements for any required coverage(s) specifying that it/they will not be cancelled during the Term; and (B) notify ZYNERGY immediately in the event of any accident, loss, damage to or destruction of any Rented Item(s).
(16) Optional Damage Waiver/Cancellation Coverage: If ZYNERGY has offered, and you have expressly accepted and paid for, the OPTIONAL Damage Waiver/Cancellation coverage (“Worry-Free Coverage”), the charge for which is set forth in the Basic Terms if available, you will have no liability to ZYNERGY for the following:
(b) Cancellation Charges: The cancellation charges referenced in Section (5) of this Contract; provided however that, with respect to any VIP Services you request, you will remain liable in any event for the applicable cancellation charges described in your VIP Services Addendum.
(17) Default/Remedies: If: (a) you: (i) fail to fully and timely comply with any provision of this Contract; (ii) provide any incorrect or misleading information to ZYNERGY; (iii) fail to timely return any Rented Item(s) to ZYNERGY in the condition required; (iv) become insolvent or file (or have filed against you) any petition in bankruptcy; (v) die or cease conducting business, or (b) if any Rented Item(s) shall (i) be used in violation of any Instruction(s), law(s), rule(s), regulation(s), ordinance(s) or policy(ies) of insurance; or (ii) except to the extent covered by the insurance and/or Worry-Free Coverage referenced in Sections (15) and (16), respectively, be lost, damaged or destroyed, you will be in default, whereupon, ZYNERGY may without notice or liability to you: (I) terminate your rental; (II) seek relief from any automatic stay; (III) enter upon any premises where any one or more of the Rented Item(s) is/are located, and recover, lock or disable such Rented Item(s) without being guilty of forcible entry, breaking and entering, trespass or other similar transgression (for which you hereby agree to indemnify, defend and hold harmless ZYNERGY); (IV) perform your obligations hereunder on your behalf, without being obligated to do so, and charge the cost thereof to you; (V) purchase replacement item(s) as necessary; (VI) recover from you our associated direct and indirect damages, costs and expenses (including without limitation, all Rent Service Charge(s) for the remainder of the Term as well as attorneys’ fees and costs of collection and enforcement); and/or (VII) pursue any other rights and/or remedies available hereunder, at law or in equity. You hereby waive any and all right(s) to receive notice of hearing or legal process before ZYNERGY’s pursuit of any one or more of the foregoing remedies.
(18) Miscellaneous: This Contract (including the “Basic Terms” referenced in Section (1) hereof), and any Addenda signed or provided by ZYNERGY, represent the entire agreement between you and ZYNERGY, superseding all other oral and written agreements and representations (including ZYNERGY’s website and advertising). The terms of this Contract are severable. If any provision hereof is deemed invalid or unenforceable by any court of competent jurisdiction, such provision will be modified the minimum extent necessary to make such provision(s) valid and enforceable, or if no such modification shall be possible, deleted, and the remainder of this Contract will remain valid and in full force and effect. Time is of the essence. There are no third-party beneficiaries hereto. ZYNERGY may, without notice or liability to you inspect any Rented Item(s) at any time. If any performance required of ZYNERGY is rendered impractical as a result of any act or omission of any Other Provider(s) or any “Act of God” (e.g., any event, fact or circumstance beyond ZYNERGY’s reasonable control), ZYNERGY will be excused from such performance. You waive the benefits of any and all statutes of limitations regarding ZYNERGY’s rights and remedies. All amounts due hereunder but not timely paid will bear interest at the highest rate permitted under applicable law until paid. You acknowledge and consent to ZYNERGY’s installation in or on each Rented Item of one or more tracking device(s) (including GPS and telematics systems) enabling ZYNERGY to monitor, among other things, the location(s) and use characteristics of each such Rented Item, and you hereby irrevocably and unconditionally waive and relinquish any and all rights and claims arising from or in connection therewith. To the maximum extent permitted under applicable law, you hereby authorize ZYNERGY to: (a) collect and retain personal information about you (including without limitation, your identity and credit history) as reasonably necessary to complete the transaction(s) referenced herein, and (b) submit all amounts coming due hereunder (up to and including the full (new) replacement value of each Rented Item, as well as all Rent, Service and related charges accruing under this Contract) for payment on your debit or credit card and hereby waive all claims to the contrary, including without limitation, “chargeback” and other similar rights and claims). You agree to pay ZYNERGY the maximum lawful charge for any check you write which is returned unpaid. This Contract cannot be further amended or extended except in a writing signed by both you and ZYNERGY (or as otherwise permitted on our website). ZYNERGY’s maximum liability in connection with this Contract is limited to the amount(s) actually paid by you hereunder. This Contract allocates to you the risk of injury, loss of, or damage to, persons or property arising in connection with the Rented Item(s), and that allocation is reflected in a reduced Rent. This Contract will be deemed to apply not only to all Item(s) identified in the Basic Terms, but also to all other items you obtain from ZYNERGY at any time in the future (except only as otherwise agreed by ZYNERGY). In addition to any other amounts you owe hereunder, you agree to pay: (a) ZYNERGY’s attorneys’ fees and other costs of enforcing this Contract, and (b) all taxes (including without limitation, all sales, use, value added, transfer, environmental and other taxes), levies, fines, fees, assessments and other charges related to this Contract, the transaction(s) contemplated herein, any one or more of the Service(s), the Rented Item(s), and/or the provision, rental, use, maintenance, repair, storage and/or transportation thereof. Neither ZYNERGY’s exercise, nor its failure or delay in the exercise, of any rights or remedies will constitute an election of remedies or a waiver of any right or remedy ZYNERGY may have. This Contract (a) has been specifically negotiated by the parties hereto (each waiving any and all rights to claim it constitutes an “adhesion contract”); and (b) shall be interpreted under the laws of the State of Florida, with proper venue for any and all associated legal proceedings lying solely and exclusively in the federal and state courts located in or nearest to Orange County, Florida. You hereby consent and submit to such jurisdiction and venue and waive all claims that such venue constitutes an inconvenient forum. Digital, electronic, photocopied or facsimiled signatures on this Contract will be enforceable as originals.
(19) WARNING: Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes.
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