RENTAL TERMS AND CONDITIONS
Customer hereby rents from 42ND STREET PHOTO, the Equipment listed on the rental form is hereof pursuant to the following terms and conditions:
1. RENTAL PERIOD. Equipment is rented on a weekly basis with a 2-week minimum rental period. The rental period shall commence on the date the equipment is picked up from 42ND STREET PHOTO until the date the Equipment is returned to the possession of 42ND STREET PHOTO, notwithstanding that a different Anticipated Rental Period is set forth by Customer during any given effective term.
2. RENT Customers shall pre-pay 42ND STREET PHOTO the full amount of the first ordered Rental Period. Fees are indicated on the rental form for each item of Equipment. All sales and use taxes imposed thereon apply. Each subsequent Rental Period will be billed in one month increments (unless otherwise specified by Customer) and shall be due upon receipt of 42ND STREET PHOTO's invoice.
3. DELINQUENT PAYMENTS: DEFAULT. Since it would be impractical or extremely difficult to fix 42ND STREET PHOTO's actual damages for collecting and accounting for a late payment, if any payment to 42ND STREET PHOTO required herein is not paid on or before its due date, Customer shall pay to 42ND STREET PHOTO, at 42ND STREET PHOTO's option, a service charge equal to 5% of any such late payment (with a minimum of $5 and a maximum of $100) for each month or any part thereof during which any such late payment has not been paid when due. Customer shall also pay to 42ND STREET PHOTO, at 42ND STREET PHOTO's option, a late charge on any late payment from the due date thereof until the date paid at the lesser of 1-3/4% per month (equal to 21% per annum) or the maximum rate permitted by law. Upon default, 42ND STREET PHOTO shall have the right to terminate this Agreement, take immediate possession of the Equipment and recover from Customer in any action to enforce 42ND STREET PHOTO's right hereunder, all amounts due hereunder, together with 42ND STREET PHOTO's costs and reasonable attorney's fees.
4. DELIVERY AND RETURN All Equipment provided is to be returned in person to 42ND STREET PHOTO. Customer shall return Equipment to 42ND STREET PHOTO in good operating condition, normal wear and tear excepted.
5. WARRANTY: 42ND STREET PHOTO'S LIABILITY. 42ND STREET PHOTO hereby warrants to Customer only that each item of Equipment will be in good operating condition. Customer's damages for any breach by 42ND STREET PHOTO of such warranty with respect to an item of Equipment shall be limited to the direct damages caused by a defective operating condition which could not reasonably have been discovered by Customer after receiving such item, but in no event shall exceed the total rental fees paid by Customer for such item. The foregoing warranty and damages for breach thereof are the exclusive warranty and damages and are in lieu of any oral representation and all other warranties and damages, whether expressed, implied or statuary.
6. OWNERSHIP: USE. The Equipment shall remain the property of 42ND STREET PHOTO and is provided to Customer solely on a rental basis without any option to purchase unless such an option is granted during an active Rental Period and explicitly set forth in writing by Customer, for return written acknowledgment by 42ND STREET PHOTO. Customer shall not remove, sublease, rent, transfer, assign, sell, alter, modify or encumber any item of Equipment without 42ND STREET PHOTO's prior written consent.
7. SERVICE. 42ND STREET PHOTO shall, at its expense, provide routine maintenance and recalibration for all Equipment and shall endeavor to repair or replace any item of Equipment which is found to be defective during the Rental Period. In the event an item of Equipment does not operate properly, Customer shall notify 42ND STREET PHOTO and request instructions before taking any remedial action or before returning it to 42ND STREET PHOTO.
8. SAFEKEEPING Customer is responsible for the safekeeping of all Equipment and shall bear the risk of any loss, theft, damage or destruction of the Equipment and shall insure each item of Equipment against such risk of loss for not less than the replacement cost of each item. In the event that any item of Equipment requires repair or recalibration as a result of accident or Customer's unauthorized tampering or repair or negligence, misuse or abuse of such item, Customer shall bear the entire cost thereof. At 42ND STREET PHOTO's option, Customer shall either replace or pay the replacement cost of any item which is lost, stolen, destroyed or damaged beyond repair. Until an item has been repaired, replaced or the replacement cost thereof has been paid by Customer, the Rental shall continue and the Customer shall continue to pay a Monthly Rental Fee with respect thereto. Any items or non-expendable materials not returned to 42ND STREET PHOTO will be charged to Customer at full replacement cost (minimum $10).
9. OBJECTION TO AGREEMENT. If Customer objects to any terms or conditions of this Agreement, Customer shall notify 42ND STREET PHOTO in writing of Customer's specific objections within 72 hours after receipt of the Agreement. Such objections shall not be binding upon 42ND STREET PHOTO unless received by 42ND STREET PHOTO within such period and 42ND STREET PHOTO agrees in writing to such amendments to the Agreement. 42ND STREET PHOTO reserves the right to reject Customer's objections to the Agreement and to terminate the Agreement. If such termination occurs, Customer immediately shall return the Equipment in good operating condition and shall pay any amounts due thereon to 42ND STREET PHOTO.
10. INDEMNIFICATION OF 42ND STREET PHOTO. Customer shall indemnify, hold harmless and defend 42ND STREET PHOTO from all claims, action and damages, including attorney's fees, arising out of the Equipment and its use, rental possession, operation, condition, purchase and return, including without limitation any such claims arising out of theory of strict liability in tort, which obligations shall survive termination of this Agreement.
11. MISCELLANEOUS. The terms hereof set forth the entire Agreement between 42ND STREET PHOTO and Customer with respect to the Equipment, and shall provide 42ND STREET PHOTO with such corporate resolutions, opinions of counsel, financial statements, and other documents (including U.C.C. Financing Statements and other documents for filing and recording) as 42ND STREET PHOTO shall request from time to time. If more than one Customer is named in this Agreement, the liability of each shall be joint and several.
12. RENTAL CONVERSION TO PURCHASE TERMS AND CONDITIONS Provided that Customer is not default under this Agreement and a current Rental Period is in effect, Customer has a purchase option hereunder; Customer shall be entitled to purchase the Equipment, pursuant to the applicable terms and conditions that follow.
1. PURCHASE NOTIFICATION. To exercise the Purchase option, Customer must notify 42ND STREET PHOTO in writing of rental conversion to purchase and complete the conversion process during an effective Rental Period.
2. PURCHASE PRICE. The purchase price shall be determined by one of the following means:
a. If Customer elects to keep the Equipment provided for Rental Period, and if the Equipment was new (never before used for any purpose), Customer will be charged the current effective published LIST PRICE, or
b. If Equipment provided for Rental Period has indeed been USED prior to the initiation of the first Rental Period to Customer, a fair market price shall be established by 42ND STREET PHOTO for the Customer's acceptance.
13. RENTAL FEES APPLICABLE TO PURCHASE. No more than two (2) months rental fees may be applied toward the purchase price, and then only if purchase is formally ordered during an active Rental Period.
14. In any event of NEW or USED Equipment rental converted to purchase, Customer has the option to return Equipment provided for Rental Period to 42ND STREET PHOTO in exchange for purchase of equivalent NEW merchandise at current prices as outlined above, or Customer may, at 42ND STREET PHOTO's discretion, apply rental fees as stipulated above toward the purchase price of other 42ND STREET PHOTO equipment as may be deemed more appropriate during the active Rental Period. All other items and conditions above shall be enforced in the event this course of action is determined.
15. EXCLUSION OF WARRANTIES. THE PARTIES AGREE THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO DESCRIPTION, QUALITY, OR PRODUCTIVENESS, ARE EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE EQUIPMENT SOLD, UNLESS THE PARTIES SHALL OTHERWISE AGREE IN WRITING. ANY ORAL STATE MENTS ABOUT THE EQUIPMENT DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELIED UPON BY CUSTOMER, AND ARE NOT PART OF THIS AGREEMENT. TOO THE EXTENT POSSIBLE, 42ND STREET PHOTO SHALL PASS TO CUSTOMER THE BENEFIT OF ANY APPLICABLE WARRANTIES OF THE MANUFACTURER OF THE EQUIPMENT.