Supplier hereby agrees to rent the Equipment to Renter and Renter agrees to rent the Equipment from Supplier on the terms and conditions of this Agreement and the “Rental.” For purposes of this Agreement, the “Rental” is the electronic document described on the web page of theNova Derm Care, Inc. website containing the terms of the Rental agreed to by Supplier and Renter. The Rental is made available to Renter by Supplier through the website, and the terms in the comments section of the Rental are incorporated into the terms of this Agreement by reference. If there is any conflict between the terms in the comments section of the Rental and the terms of this Agreement, the terms of this Agreement shall control. Renter understands and agrees that the Rental and this Agreement will become effective and binding on Renter only after the Supplier has confirmed Supplier’s acceptance of the final Rental listed on the website and agreed to by Renter.
The initial term of the Equipment rental will commence on the “Start” date and will end on the “End” date set forth in the Rental. If the Equipment is not returned by the “End” date, the rental term shall extend daily and at a daily prorated charge calculated using the rental charge for the initial term, unless terminated by either party as provided in Section 6. On the last day of the term, whether under the initial term or any extension thereof, Supplier will arrange for de-installation and/or pick-up of the Equipment, as applicable or, if no return shipping charges were paid to Supplier under the terms of the Rental and at the request of Supplier, Renter will ship the Equipment back to Supplier at Renter’s expense. The Equipment shall be returned to Supplier in good condition and working order, ordinary wear and tear excepted, as it was at the commencement of the Agreement.
3. Equipment Receipt Confirmations
a) If Equipment is to be installed by Supplier, Renter shall provide sufficient space and area for the Equipment to be installed on the Start Date. After installation of the Equipment, Renter will notify Supplier through the website within 24-hours of installation if there are any issues with the installation or Equipment. If no such notice is received, the Equipment shall be deemed properly installed, proper Equipment and in good working condition for all purposes of this Agreement. Until such time as the Equipment is returned to Supplier, or picked up by Supplier, as provided in Section 2 above, Renter will be responsible for such Equipment pursuant to the terms and conditions of this Agreement.
b) If no installation is required, when the Equipment is shipped to Renter, at the sole choice of Supplier, the carriers’ receipt will constitute Renter’s receipt of the Equipment. After receipt of the Equipment, Renter will notify Supplier through the website within 24-hours of delivery if there are any issues with the Equipment. If no such notice is received, the Equipment shall be deemed proper Equipment and in good working condition for all purposes of this Agreement.
4. Obligations of Renter
Renter agrees to use the Equipment solely for the purpose for which it is supplied, in a careful and proper manner and will comply with the laws, rules, ordinances, statutes and orders regarding the use, maintenance and storage of the Equipment.
Unless Renter notifies Supplier of any defects in the Equipment as set forth in Section 3(b), the Equipment shall be deemed to be in good working order upon receipt by Renter. Renter shall, at Renter’s sole expense, keep and maintain the Equipment in clean and good working order and repair during the term of the rental. Renter agrees to notify Supplier of any damage to the Equipment as soon as practicable, and to be responsible for the cost to repair all damage caused to the Equipment while in use by Renter (other than damage caused by normal and proper use in accordance with the intended purpose of the Equipment) and, if Renter is responsible for transit of equipment, while in transit to or from Renter. Such repair cost is not to exceed the replacement cost of the Equipment as specified in the Rental. In the event the Equipment is lost or damaged beyond repair, Renter shall pay to Supplier the replacement cost of the Equipment as specified in the Rental, and, in addition, the obligations of this Agreement shall continue in full force and effect through the end of the term. Renter shall promptly pay Supplier the cost to repair or replace the Equipment.
Renter shall keep the Equipment free and clear of any liens or other encumbrances, and shall not permit any act where Supplier’s title or rights may be negatively affected. Renter shall be responsible for complying with and conforming to all laws and regulations relating to the possession, use, or maintenance of the Equipment.
Renter shall not alter the Equipment in any way.
Renter agrees that the Equipment provided by Supplier shall only be operated by competent personnel, familiar with the operation of such equipment. No person operating or using the Equipment will be under the influence of any substance, including alcohol or drugs.
Renter agrees to provide an on-site environment that meets the requirements for proper operational performance of the Equipment. Renter agrees to provide reasonable security at the site of use, to minimize the exposure of the Equipment to loss and/or damage.
Renter shall not move the Equipment from the location at which such Equipment is installed by Supplier, if applicable, or from the location specified in the Rental under “Permitted Area of Use” without first receiving Supplier’s prior written approval.
Renter shall obtain all licenses and permits required to operate the Equipment and Renter shall require all operators of the Equipment to be properly licensed or have the proper permits prior to operating such Equipment.
If Supplier requires it, Renter shall obtain general liability insurance and/or property insurance against all liabilities and damages with respect to Renter’s use of the Equipment during the rental period, name Supplier as an Additional Insured under Renter’s insurance policy, and provide to Supplier a Certificate of Insurance, which Renter may upload to Supplier through the Nova Derm Care website.
6. Payment Terms
Prior to the shipping day or the day of installation of the Equipment, Renter shall pay in full the following as specified in the Rental:
the rental charge for the first month of the rental period, or if the rental period is for less than one month, the rental charge from the Start Date to the End Date;
the security deposit (if required by the Supplier);
shipping charges and return shipping charges; one-time up-front fees; and applicable sales, use, property and other taxes, fees, and other assessments and governmental charges.
If the payment specified above is not timely paid, Supplier will be under no obligation to ship or install the Equipment.
Unless the Rental does not permit an automatic renewal, the term will automatically renew for a daily term and at a daily prorated charge based on the rental charge for the initial term until the Equipment is returned. Payment during any renewal term shall be made as provided in this Section.
If Renter fails to return the Equipment at the end of the applicable rental term, Renter agrees to pay all rental charges set forth in this Section until the Equipment is returned.
7. Security Deposit
If the Rental specifies that a security deposit is required, Renter understands and agrees that it shall be held as security for Renter’s faithful performance of Renter’s obligations under this Agreement. Provided no default by Renter has occurred under this Agreement, any security deposit will be returned to Renter within 30 days after the return of the Equipment to Supplier. If, however, any default by Renter under this Agreement has occurred, including any damage to the Equipment upon return to Supplier, Supplier may withhold that portion of the security deposit necessary to cover damages suffered by Supplier.
8. RELEASE AND INDEMNITY OF Nova Derm Care,
Each party agrees and acknowledges that it is using the services and website provided by Nova Derm Care) to facilitate the rental transaction between Renter and Supplier and at that party’s own risk, that Nova Derm Care is not an agent for either party, that the Nova Derm Care services and website are provided on an “AS IS” and “AS AVAILABLE” basis, and to the extent permitted by applicable law.
9. Limited Warranty; Limitation of Liability of Supplier
Supplier represents that Renter shall be entitled to quietly hold and possess the Equipment during the rental term and will not interfere with that right as long as Renter is in compliance with this Agreement.
Supplier expressly disclaims any liability in the event that any mechanical breakdown or failure of the Equipment should result in damage, loss, delay or any other interference in Renter’s work product. Supplier’s exclusive obligation and liability to Renter shall be to repair the equipment or provide Renter with the same or similar equipment, if the need for such repair or replacement arises from the normal and proper use of the Equipment in accordance with its intended purpose, in order to accomplish the same work, and to credit Renter for any rental payments made during such breakdown or failure due to normal and proper use, or to terminate this Agreement. The parties agree that the term shall be extended for any time lost due to breakdown or failure of the Equipment due to normal and proper use, unless Supplier elects to terminate the Agreement. SUPPLIER SHALL NOT BE LIABLE FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED BY THE EQUIPMENT OR ANY DEFECT OR INADEQUACY THEREOF. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT.
Supplier shall not be responsible for any of Renter’s material remaining in Supplier’s Equipment upon its return.
SUPPLIER WARRANTS TO RENTER THAT THE EQUIPMENT WILL BE FULLY OPERATIONAL AND FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR THE PERIOD OF THE RENTAL. OTHER THAN THE FOREGOING LIMITED WARRANTY, SUPPLIER MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE EQUIPMENT OR THE MATERIAL OR WORKMANSHIP IN THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THERETO, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SUPPLIER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT (OTHER THAN THE FOREGOING LIMITED WARRANT) THE EQUIPMENT IS RENTED TO RENTER “AS IS” AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY RENTER. RENTER HAS MADE THE SELECTION OF THE EQUIPMENT FROM THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY SUPPLIER. RENTER FURTHER REPRESENTS THAT ALL ITEMS OF EQUIPMENT ARE OF SIZE, CAPACITY AND DESIGN SELECTED BY RENTER. EXCEPT AS PROVIDED IN THIS SECTION 11, SUPPLIER IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE EQUIPMENT OR ITS OPERATION.
Force Majeure. Neither party shall be held liable for breach of this Agreement in the event that all or substantially all of its obligations under this Agreement are materially interfered by reason of any cause or occurrence beyond the control of such party, including without limitation, machine malfunction (except to the extent caused by intentional or grossly negligent acts of such party, its employees or agents), fire, flood, epidemic, earthquake, explosion, accident, war, blockage, embargo, act of public enemy, civil disturbance, labor dispute (or threatened disputes). If the force majeure events prevents Supplier from performing its obligations hereunder, Renter may terminate this Agreement without liability and rent the Equipment from another supplier. If the force majeure events prevents Renter from performing its obligations hereunder, Supplier may terminate this Agreement without liability and rent the Equipment to someone else or otherwise make use of the Equipment.
10. Default by Renter
If Renter fails to perform or fulfill any obligation under this Agreement, other than due to a force majeure event as specified in the Section titled “Force Majeure” above, Renter shall be in default of this Agreement. Subject to any statute, ordinance or law to the contrary, Renter shall have seven (7) days from the date of notice of default by Supplier to cure the default. If Renter does not cure a default in such time frame, Supplier may at Supplier’s option (a) cure such default and the cost of such action may be added to Renter’s financial obligations under this Agreement; or (b) declare Renter in default of this Agreement. If Renter shall become insolvent, cease to do business as a going concern, if applicable, or if a petitions has been filed by or against Renter under the Bankruptcy Act or similar federal or state statute, Supplier may immediately declare Renter in default of this Agreement. In the event of default, Supplier may, at its option, holder Renter liable for any difference between the rent that would have been payable under this Agreement during the balance of the unexpired term and any rent paid by any successive renter if the Equipment is re-let minus the cost and expenses of re-letting and taking possession of the Equipment, if applicable. If Supplier is unable to re-let the Equipment during the remaining term of this Agreement, after default by Renter, Supplier may at its option hold Renter liable for the balance of the unpaid rent under this Agreement if this Agreement had continued in force.
This Agreement shall not be assigned by Renter without the prior written consent of Supplier. Upon consensual assignment, this Agreement and the rights and obligations here under shall be binding upon the successors and assigns of Renter.
12. Governing Law
This Agreement shall be governed by and construed according to the Irish laws
13. No Waiver
The failure of either party to insist upon the other party’s performance of any obligations here under shall not be construed as a waiver of or the breach of any obligation of either party or of any subsequent breach of which obligation. The failure of either party to exercise any right or remedy which it may have here under or under the law shall not be construed as a waiver of any other right or remedy which the party may have here under or under the law.
All disputes arising from this Agreement, or from any other agreement that exists between the parties to this Agreement, shall be referred for binding arbitration with such arbitration to be held in the city where the Supplier’s headquarters are located. In the event that arbitration is found not to apply to the parties or to a particular claim or dispute under this Agreement.
All notices to be given here under must be in writing and shall be given by the parties hereto only in one of the following ways: (1) by personal delivery, (2) by certified mail, postage prepaid, or (3) by facsimile, with confirmation of receipt, to the contact person and address specified in the Rental.
This Agreement and the Rental contain the entire understanding between the parties. This Agreement may not be modified, nor may any provision be waived, except by an instrument in writing, signed by both parties. Paragraph headings used herein are for convenience only and shall not be used in any way to interpret the provisions of this Agreement. Supplier and Renter hereby accept each other’s electronic signature as binding insofar as such signatures relate to this Agreement and any other dealings between the parties to this Agreement.