Effective Date: January 11, 2022
These Terms and Conditions (“T&C’s”) and the quotation, order form or invoice (“Order”) referencing these T&C’s shall constitute the agreement (“Agreement”) between Industrial Sonomechanics, LLC (“Company”) and the Customer (“Customer”) renting or leasing equipment (“Equipment”) from the Company.
1. Scope. These T&C’s apply to both the weekly rental and monthly lease programs offered by the Company. The applicable program, Equipment and payment obligations are described on the Order.
2. Acceptance. This Agreement shall become binding upon the Customer upon the first to occur of the following: (a) the Customer sends an email to the Company accepting the Company’s quotation; (b) the Customer sends a purchase order to the Company referencing the quotation; or (c) the Customer pays the Company’s invoice for the Equipment.
3. Non-Cancelable. Once accepted, all Orders are non-cancelable, non-refundable and non-returnable, except as otherwise provided in this Agreement. If Customer abandons the order prior to shipment or otherwise fails to take possession of the Equipment, Customer agrees that Company shall retain possession of the Equipment and that Customer shall forfeit any payment already made.
4. Rental Program. The terms of this Section 4 shall apply only if a weekly rental program is indicated on the Order.
(a) Rental Term. Unless otherwise indicated in the Order, the initial term is four weeks from the date the Equipment is shipped from the Company’s premises or Customer otherwise takes possession of the Equipment, whichever is sooner (the “Initial Term”). Thereafter, this Agreement shall renew automatically on a week-to-week basis (each a “Renewal Term”), unless either party provides seven (7) days advance written notice of its intent not to renew this Agreement or Customer returns the Equipment prior to the end of such Initial Term or an applicable Renewal Term pursuant to the terms hereof. The Initial Term and any Renewal Terms, as applicable, shall be referred to as the “Term.”
(b) Initial Payment. Unless otherwise stated in the Order, prior to taking possession of the Equipment, Customer shall pay to Company an amount equal to three times (3x) the weekly rent as a pre-payment for the first three weeks of Customer’s rental of the Equipment.
(c) Security Deposit. Prior to taking possession of the Equipment, Customer shall pay to Company a security deposit in the amount stated on the Order. Company may deduct from the security deposit any amounts owed to Company by Customer under this Agreement, including without limitation amounts owed for unpaid rent or damage to the Equipment exceeding normal wear and tear. Company shall notify Customer in writing of any deductions from the security deposit.
5. Lease Program. The terms of this Section 5 shall apply only if a monthly lease program is indicated on the Order.
(a) Lease Term. Unless otherwise indicated in the Order, the initial term is two months from the date the Equipment is shipped from the Company’s premises or Customer otherwise takes possession of the Equipment, whichever is sooner (the “Initial Term”). Thereafter, this Agreement shall renew automatically on a month-to-month basis (each a “Renewal Term”), unless either party provides thirty (30) days advance written notice of its intent not to renew this Agreement or unless Customer purchases or returns the Equipment prior to the end of such Initial Term or an applicable Renewal Term pursuant to the terms hereof. The Initial Term and any Renewal Terms, as applicable, shall be referred to as the “Term.”
(b) Initial Payment. Unless otherwise stated in the Order, prior to taking possession of the Equipment, Customer shall pay to Company an amount equal to two times (2x) the monthly lease payment as a pre-payment for the first two months of Customer’s lease of the Equipment.
6. Delivery. Assembly of the Equipment by Company shall not commence until payment for the Initial Term is received by the Company. The Company shall notify Customer when the Equipment Customer ordered is ready for delivery (“Delivery Notice”) and shall provide an invoice for any amounts due before delivery. Customer shall, at its sole cost and expense, arrange for the pick-up and transportation of the Equipment. All rentals and leases of the Company’s Equipment are Ex Works the Company’s premises, and all risk of loss shall be borne by the Customer after the Customer or the shipping agent takes possession of the Equipment at Company’s premises. Customer agrees to insure the Equipment in accordance with Section 18. Upon Customer’s request, the Company may arrange for the shipment of the Equipment and the purchase of insurance from the shipping agent on Customer’s behalf and at Customer’s cost, but assumes no liability for damage of any kind during shipment. Customer shall inspect the Equipment and shall be deemed to have accepted the Equipment as received unless Customer notifies the Company of any claims for manufacturing defects within ten (10) business days after receipt of the Equipment.
7. Returns. Unless the Customer purchases the Equipment, this Agreement, including Customer’s payment obligations, shall continue until Company has received the Equipment from Customer or until this Agreement is otherwise terminated as set forth herein. If Customer notifies Company in writing that the Equipment has been shipped for delivery back to Company, Customer shall not be obligated to pay for the period from such notification to the date Company receives the Equipment; provided that such Equipment is received by Company within seven (7) days of such notification. The Customer shall be responsible for the safe return of the Equipment to Company, in the same condition as on the date it was originally delivered to the Customer, ordinary wear and tear accepted. The Equipment shall be packaged for return using the materials in which the Equipment was originally delivered by Company. All expenses incurred for the return of the Equipment and all risk of loss prior to receipt by the Company shall be borne by the Customer.
8. Payment.
(a) Payment Terms. Payment for the Initial Term shall be due within five (5) business days after the date the invoice for the Initial Term is sent to Customer. All other periodic payments shall be due in advance, i.e., prior to the beginning of each Renewal Term.
(b) Failure to Pay. Customer shall be deemed to have abandoned the order if Customer fails to pay any balance due within thirty (30) days after the Company has given the Delivery Notice or if Customer fails to provide complete shipping instructions within sixty (60) days after the Company has given the Delivery Notice.
(c) Purchased Parts. Any components purchased by Customer from Company that are not subject to either the Rental Program or Lease Program shall be governed by Company’s terms and conditions of sale for such parts. Payment for such purchased components must be received by Company prior to Company’s delivery of Equipment under this Agreement.
(d) No Set-Off. The fees and any other amounts payable to Company under this Agreement shall be stated in the applicable Order. Customer’s obligation to pay such amounts is absolute and unconditional and shall not be delayed or reduced or set off by reason of any abatement, reduction, set-off, defense, counterclaim or recoupment for any reason whatsoever.
(e) Late Payments. Any amount that is not paid by the date it is due to the Company may be subject to an administrative fee of ten percent (10%) of the late payment and a carrying charge of one and one-half percent (1.5%) per month from the original due date until paid in full.
(f) Payment Authorization. By accepting this Agreement, Customer hereby authorizes Company to charge any unpaid amounts due to Company or any amounts otherwise owed by Customer to Company under this Agreement to the Customer’s credit card on file with Company.
9. Sales Tax. Customer shall bear all taxes imposed as a result of the sale or lease of Company’s products or services, including without limitation, sales tax, personal property tax, export or import duties and any other tax (each, a “Transaction Tax”), other than income tax imposed on Company. If Customer has presented a certificate or other document that purports to relieve the Company from its duty to withhold or collect any such Transaction Tax, Customer represents that such document is genuine and currently in force.
10. Customer Obligations.
(a) Installation. Customer shall be solely responsible for installation and operation of the Equipment. Any advice provided by the Company regarding installation or operation shall be given without warranty of any kind.
(b) Equipment Use. Customer agrees that it shall use the Equipment in accordance with Company’s written use and care instructions and only for the uses and purposes specified in writing by the Company. Customer shall install and maintain the Equipment at its facility located at the address specified in the applicable quotation and/or invoice (“Facility”), and shall not move the Equipment from the Facility without the express written consent of Company.
(c) Use of the Equipment. During the term of this Agreement, Customer shall not without Company’s prior written consent: (a) use, operate or locate the Equipment in any manner or area so as to cause it to be excluded from coverage by any insurance required hereunder; (b) abandon the Equipment or dispose the Equipment; (c) materially alter the Equipment; (d) affix or install any accessory, equipment or device on any item of Equipment if such (i) is not readily removable, or (ii) will impair the value or the originally intended function or use of such Equipment; or (e) allow the Equipment or any item of it to be affixed to realty in such a manner as to cause the Equipment or such item to become a fixture. If Customer returns the Equipment at the end of the Term, all additions, repairs, parts, accessories, equipment and devices attached or affixed to any item of Equipment which are not readily removable, shall become the property of Company and part of the Equipment.
(d) Access to Equipment. During the Term, Customer shall promptly provide Company with any information regarding the Equipment upon Company’s request for same. Company shall have the right to inspect the Equipment during normal business hours with reasonable advance written notice to Customer.
(e) Notice of Damage. Customer shall give Company prompt notice of any damage to or loss of the Equipment or of any occurrence arising from the possession, use or operation of the Equipment resulting in death or bodily injury, or damage to property. In the event of damage to the Equipment while in Customer’s possession or control, Customer shall promptly repair or replace the Equipment as required by Company, including without limitation, using the proceeds of any insurance recovery to cover the cost of such repair or replacement.
(f) Shipping Materials. Customer agrees to preserve all materials in which the Company shipped the Equipment and, if Customer returns the Equipment for repairs or for any other reason, to use such materials to repackage the Equipment for shipment back to the Company.
(g) Registration and Licensure. Customer shall, at its sole cost and expense, register and license the Equipment with all appropriate governmental authorities as required by law, and, notwithstanding the foregoing, Customer shall comply with all applicable laws of United States and the State of Florida, and any applicable local jurisdiction concerning its use, possession or maintenance of the Equipment. Customer shall be solely responsible for, and hereby indemnifies Company against, fines and penalties related to the possession, use and/or maintenance of the Equipment, whether related to violations of any law, statute, ordinance, bylaw, or regulation of any duly constituted governmental authority, whether committed by Customer or any of Customer’s employees, agents, licensees, sub-Customers or subcontractors. Customer shall pay promptly when due all taxes and assessments upon the Equipment or its use or operation.
(h) Safety. The Customer shall be responsible for taking all safety and other precautions in installing and operating the Equipment, including all parts ordered separately. Customer agrees to require all persons engaged in such installation or operation, and all other persons who reasonably should also require protection gear, to wear protective gear and take other reasonable protective measures as Customer deems necessary.
11. Purchase of Equipment. This Section 11 shall apply only if a monthly lease program is indicated on the Order.
(a) Automatic. On such date during the Term that seventy-five percent (75%) of the total monthly payments received by the Company from the Customer equals the Company’s list price for the purchase of the Equipment, the Customer shall be deemed to have purchased the Equipment on such date, and such purchase shall be deemed paid in full.
(b) Buy Out. The Customer shall have the option to purchase the Equipment, during or at the end of any Renewal Term (the “Buy-Out Date”) by (i) notifying the Company at least five (5) days prior to the Buy-Out Date that Customer is exercising this option and (ii) paying to Company the listed purchase price less seventy-five percent (75%) of the total monthly payments received by the Company prior to the Buy-Out Date.
(c) Failure to Return. In the event that the Customer fails to return the Equipment within seven (7) days after the end of the Term, the Customer shall be deemed to have purchased the Equipment as of the end of such seven-day period and shall pay Company the listed purchase price less seventy-five percent (75%) of the total monthly payments received by the Company.
(d) Effect of Purchase. Upon Customer’s purchase of the Equipment in accordance with this Section 10, Customer shall assume all obligations of ownership of the Equipment including all risks of loss, and the Company agrees to relinquish all rights, title and interest in the Equipment. Thereafter, Company shall have no obligations or liabilities to Customer with respect to the Equipment and Customer’s use of the Equipment. No additional warranty period shall apply following the purchase of the Equipment in accordance with this Agreement. Company may charge Customer for any amounts due under this Section in accordance with Section 8(f) (Payment Authorization).
12. Termination.
(a) Termination. The non-defaulting party may terminate this Agreement immediately upon notice to the other party if the other party fails to cure any material breach (including the non-payment of any amounts owed to Company) within 15 days of the breaching party’s receipt of notice of such breach. Company may terminate this Agreement upon 15 days prior written notice following the commencement of any insolvency, bankruptcy or similar proceedings by or against Customer, including any assignment by Customer for the benefit of creditors.
(b) Actions upon Termination. If Company terminates the Agreement under this Section 11, Company may secure peaceable repossession and removal of the Equipment by Company or its agent with or without judicial process, and may exercise any other right or remedy which is available to it under the Uniform Commercial Code or applicable law.
13. Compliance with Law. Customer agrees to comply with all laws, rules and regulations applicable to the purchase and use of the Equipment. Customer represents that it has investigated all such laws, rules and regulations, and that Customer is not relying upon any Company advice in that regard. Customer further represents that Customer is renting or leasing the Equipment for business purposes and not for any personal, family or household purposes. Customer shall keep the Equipment free of all liens and encumbrances during the Term.
14. Limited Warranty.
(a) Warranty. The Company warrants to the Customer that upon delivery and during the term of this Agreement, the Equipment furnished hereunder will be free from defects in material and workmanship under normal use and service and will conform to the specifications provided by the Company in writing. Customer shall notify Company within seven (7) days of discovering a non-compliance with this warranty. Provided Customer has notified the Company as required under this paragraph, Company will, in the Company’s sole discretion, either replace the Equipment, repair the Equipment at the Company’s premises, or terminate this Agreement and accept return of the Equipment from Customer. This paragraph states Company’s sole obligation and liability for a breach this limited warranty.
(b) Exclusions. The foregoing warranty shall not apply: (i) if the Customer is in breach of any provision of this Agreement, including without limitation, any failure to pay amounts owed to Company when due; (ii) to any owner or user of the Equipment other than Customer; (iii) to any Equipment designated “prototype,” “for development use,” or “experimental,” or having a similar designation on the Order indicating such Equipment is provided for evaluation purposes; (iv) to any Equipment on which the original identification information, including any logo label, has been altered, obscured, covered or removed; (v) to any Equipment that has been modified or repaired by any party other than the Company; (vi) to normal wear and tear, including without limitation, marks or scratches resulting from normal use, changes in surface finishes or discoloration due to aging, exposure to sunlight or to extreme environmental conditions; (vii) to any damage resulting from negligence, unreasonable use or improper storage; (viii) to any changes in the noise levels produced by the Equipment; (ix) to wear of the surfaces, and/or associated loss of functionality of an ultrasonic horn or microtip resulting from cavitation erosion; (x) to any Equipment purchased by Customer; or (xi) to any equipment or device not provided by Company.
(c) Repair Process. In the event the Equipment is damaged while in Customer’s possession or control, Customer may request a repair estimate from Company. Promptly after Customer’s written request, the Company will provide an estimate of the cost, if any, to repair the Equipment. If Customer accepts such estimate, Customer shall return the Equipment at Customer’s cost and prepay the estimate, and Company will use commercially reasonable efforts to repair the Equipment.
(d) DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) COMPANY HAS NO OBLIGATIONS OR LIABILITIES TO CUSTOMER WITH RESPECT TO THE EQUIPMENT OR CUSTOMER’S USE OF THE EQUIPMENT; (B) THE EQUIPMENT IS MADE AVAILABLE UNDER THIS AGREEMENT “AS IS;” (C) THE COMPANY MAKES NO REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND (D) THE COMPANY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
15. Limitation of Liability. THE COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY LOSS, COST, LIABILITY, DAMAGE OR OBLIGATION IN EXCESS OF THE AMOUNT PAID BY THE CUSTOMER TO THE COMPANY FOR THE EQUIPMENT PROVIDED HEREUNDER. NO CLAIM OF ANY KIND SHALL BE MADE AGAINST THE COMPANY OR ANY OF ITS OFFICERS OR EMPLOYEES MORE THAN ONE YEAR AFTER THE DATE OF THE DELIVERY NOTICE.
16. Indemnification. The Customer (“Indemnitor”) shall defend, indemnify and hold harmless the Company and its directors, officers, employees, agents and subcontractors (collectively, the “Indemnified Parties”) from and against any and all claims, damages, expenses, and losses of any kind whatsoever (“Losses”) that may be suffered by an Indemnified Party to the extent that such Losses arise out of acts or omissions of the Indemnitor or its officers, directors, shareholders, agents, employees or contractors, including due to any violation of law or in connection with the installation, use, operation or storage of the Equipment. The Indemnified Party will give the Indemnitor prompt written notice of any Losses, provided that the failure to provide such notice shall not relieve the Indemnitor from any liability or obligation of Indemnitor hereunder. The Indemnitor will give each Indemnified Party an opportunity to participate in the defense thereof at the Indemnified Party’s expense and will pay all reasonable expenses of the Indemnified Party in assuming such defense if the Indemnitor fails to pursue such defense in a timely and competent manner.
17. Deconstruction. Customer agrees not to take any action to develop a product competitive with the Equipment by deconstructing, reverse engineering or copying such Equipment or otherwise.
18. Insurance. Customer agrees to insure the Equipment against all forms of loss or damage to it, to Customer or to others, from the point at which Customer or its shipping agent takes possession of the Equipment, and as a result of Customer’s installation, operation, use or storage of the Equipment, and to add the Company as an additional insured on the applicable insurance policy.
19. Authority. The individual that orders the Equipment hereby represents that he or she has the authority on behalf of the Customer to place such order and enter into this Agreement. The Customer represents that this Agreement does not conflict with any law, regulation or other agreement to which Customer is subject.
20. General Terms.
(a) Injunctive Relief. The Customer agrees that a breach of this Agreement by the Customer may cause irreparable harm to the Company and that monetary damages may be inadequate. In addition to all remedies available at law, the Company shall be entitled to seek an injunction or other equitable remedies for any threatened or actual breach of this Agreement without posting any bond.
(b) Governing Law. This Agreement shall be governed in all respects by the laws of the State of Florida notwithstanding such state’s law that would otherwise specify the law of a different state. The parties hereby waive and disclaim the applicability of the provisions of the United Nations Convention on the International Sale of Goods and any trade usage or course of dealings or performance between the parties. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Miami, Florida. Notwithstanding such exclusive jurisdiction, any judgment obtained in such a court may be enforced in any court having jurisdiction over such enforcement. The Customer shall reimburse the Company for all of its costs, including reasonable legal fees, incurred by it in enforcing this Agreement.
(c) Entire Agreement; Modification. This Agreement, including the applicable the quotation and invoices, constitutes the entire agreement between the parties, and supersedes all previous and contemporaneous negotiations, representations and agreements made by the parties with respect to the subject matter hereof. No modification of this Agreement is effective unless in writing and signed by both parties. In the event of a conflict between the Order and these T&C’s, the terms of the Order shall prevail; provided, however, no purchase order or other Customer document shall alter the terms of this Agreement. The Customer represents that no oral or written comments by the Company, including comments regarding the Equipment, have induced the Customer to enter into this Agreement.
(d) Waiver. Any failure to enforce, or delay in enforcing, any provision of this Agreement shall not be construed as a waiver of such provision or any other provision of this Agreement. No waiver of a provision of this Agreement shall be effective unless made in writing and signed by the waiving party. The waiver of a breach of a provision shall not be construed as a waiver of any subsequent breach.
(e) Severability. If any provision of this Agreement is held unenforceable or invalid, such provision shall be interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
(f) Notices. All notices required under this Agreement shall be in writing either delivered personally with written acknowledgement of receipt, or delivered by overnight carrier. Notice are considered given upon actual receipt. All communications shall be sent to the addresses set forth on the applicable quotation or invoice. The parties shall notify each other promptly of any change of address.
(g) Language. This Agreement is in the English language only, which shall control in all respects. Any translation shall not be binding on the parties. All communications pursuant to this Agreement, and all documentation and support provided by Company, shall be in the English language.
(h) Assignment. Customer shall not assign or transfer, by operation of law or otherwise, any rights or obligations under this Agreement without Company’s prior written approval. Any attempted assignment without such approval is invalid. Subject to the foregoing, the rights and obligations of the parties under this Agreement shall inure to the benefit of, and shall be binding upon, their respective successors and assigns.
(i) Force Majeure. Except for payment of money, neither party shall be liable for failure to fulfill its obligations under this Agreement or for delays in such fulfillment due to causes beyond his, her or its reasonable control, including but not limited to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or material through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
(j) Foreign Corrupt Practices Act. The parties shall each comply with the United States Foreign Corrupt Practices Act. The parties and their employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize any payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government worldwide or the United States Government (including a decision not to act) or inducing such person to use his or her influence to affect any such governmental act or decision in order to assist such party in obtaining, retaining or directing any such business.
[end of Equipment Rental/Lease Terms and Conditions]
