Inphase, Inc. Equipment Rental Terms and Conditions
This Agreement (“Agreement”) is made as by and between Inphase, Inc., a California Corporation (“Inphase, Inc.”) and the Lessee. Lessee hereby leases the Equipment from Inphase, Inc. on the Terms and Conditions set forth in the invoice and/or Quote (the “Invoice” or “Quote”) which accompanies this Agreement. The term of this Agreement shall commence as of the Effective Date and expire on the date on which all obligations of the parties have been fulfilled (“Term”), unless sooner terminated in accordance with the terms and conditions of this Agreement:
1. Term Of Agreement
The term of the rental of the Equipment (the “Term”) is from the date specified in the Invoice as the date of rental and continues until the applicable of the following:
1a. In the case where the Equipment is returned to Inphase, Inc. (at such location designated by Inphase, Inc.) during normal business hours and there is no Applicable Equipment, on the later of (i) the date of the return of the Equipment or (ii) the payment in full of all amounts due to Inphase, Inc. from Lessee. In the case where the Equipment is returned to Inphase, Inc. (at such location designated by Inphase, Inc.) and there is Applicable Equipment, on the later of (i) the date on which all of the terms set forth regarding the repair or replacement of the Applicable Equipment are fully satisfied or (ii) the date on which the payment in full of all amounts due to Inphase, Inc. from Lessee occurs.
1b. In the case where the Equipment is lost, stolen, destroyed or otherwise disappears, the later of (i) the date on which all the terms set forth regarding the Equipment are fully satisfied or (ii) the date on which the payment in full of all amounts due to Inphase, Inc. from Lessee occurs.
Applicable Equipment.
As used herein, the term “Applicable Equipment” means any Equipment which is not properly operating, including any Equipment which has been damaged regardless of the extent of such damage or the cause of such damage. The final determination as to whether any item of Equipment constitutes Applicable Equipment shall be made in the sole discretion of Inphase, Inc. based upon the inspection of the Equipment by Inphase, Inc., provided that at any time Lessee may (at Lessee’s sole cost and expense) return the Equipment to Inphase, Inc. together with a notice given to Inphase, Inc. in good faith which states that the Equipment being returned is not properly operating or is damaged. If at any time there is Applicable Equipment, then the following shall apply: Lessee shall, at Lessee’s sole cost and expense, return the Applicable Equipment to Inphase, Inc. Inphase, Inc. shall determine the cause of the problem regarding such Applicable Equipment, which determination shall be binding and conclusive upon Lessee.
If (i) Inphase, Inc. determines that the problem with the Applicable Equipment was not caused by Lessee and (ii) the return of the Applicable Equipment is not in connection with the end of the Term, then Inphase, Inc. shall make a reasonable effort to promptly repair or replace the Applicable Equipment and subsequently deliver such repaired or replaced.
Equipment to Lessee at Lessee’s expense (unless Lessee notifies Inphase, Inc. that such Applicable Equipment is no longer a part of the Equipment which Lessee desires to lease, in which case Inphase, Inc. shall have no obligation to repair or replace the Applicable Equipment).
If (i) Inphase, Inc. determines that the problem with the Applicable Equipment was caused by the actions or omissions of Lessee and (ii) the return of the Applicable Equipment is not in connection with the end of the Term, then (a) Inphase, Inc. shall make a reasonable effort to promptly repair or replace the Applicable Equipment and (b) Lessee shall be responsible for the cost of replacing the Applicable Equipment (or the closest comparably equipped model), at current retail prices less any discounts available, without deduction for depreciation, plus transportation, tax and setup charges attendant to the replacement equipment (which replacement equipment shall thereafter be included within the term “Equipment” as used herein). Lessee acknowledges that the prompt repair or replacement of the Applicable Equipment may not be possible and releases Inphase, Inc. from any and all liability associated with the Applicable Equipment. If (i) Inphase, Inc. determines that the problem with the Applicable Equipment was caused by the actions or omissions of Lessee and (ii) the return of the Applicable Equipment is in connection with the end of the Term, then Lessee will be responsible for the cost of replacing the Applicable Equipment (or the closest comparably equipped model), at current retail prices less any discounts available, without deduction for depreciation, plus transportation, tax and setup charges attendant to the replacement equipment (which replacement equipment shall thereafter be included within the term “Equipment” as used herein).
If (i) Inphase, Inc. determines that the problem with the Applicable Equipment was not caused by Lessee and (ii) the return of the Applicable Equipment is in connection with the end of the Term, then Lessee shall not be responsible for the cost of replacing the Applicable Equipment, provided that nothing contained herein shall mean or be construed to mean that Lessee is entitled (a) to any refund of any amount previously paid by Lessee to Inphase, Inc. or (ii) to any reduction of any amount which remains payable by Lessee to Inphase, Inc. All such costs and charges payable by Lessee shall be charged to Lessee’s credit card.
2. Crew / Labor.
To the extent Inphase, Inc. Crew (“Crew”, “Labor” and/or “Personnel”) is contracted per the Agreement with Lessee, including specific personnel identified for the Event, Inphase, Inc. retains the right to substitute any Crew member provided that the replacement possesses qualifications appropriate for the assigned task. Lessee agrees to arrange and pay for all travel expenses for the Crew during the Term, including airfare, airline fees, accommodations, ground transportation, and a per diem, subject to prior approval by Lessee. If Lessee objects to any travel expense and the parties cannot reach an agreement, Inphase, Inc. shall have no obligation to supply the Equipment or Crew for the Event.
Unless otherwise required under this Agreement, Crew members shall not be obligated to: 1) join any union or guild, 2) drive personnel or transportation vehicles, and/or 3) perform services beyond those specified in this Agreement or at the Event. At Lessee’s request, Inphase, Inc. may, at its sole discretion, provide additional personnel for the Event. Lessee shall be responsible for any additional expenses, including but not limited to local labor calls, union costs, overtime charges, or other non-Crew fees, subject to prior approval. If Lessee objects to any such expense and no resolution is reached, Inphase, Inc.’s obligations to provide the Equipment or Crew may be suspended. If Inphase, Inc. determines, in good faith, that venue conditions are unsafe for its Crew due to access, exposure, weather, or other factors, Inphase, Inc. reserves the right to decline services at that venue without liability until the conditions are remedied.
3. Requirements: Authority.
Without in any way limiting any other term or provision of this Agreement or any obligation of Lessee hereunder, Lessee shall comply with all laws, policies, rules, and regulations applicable to the rental of the Equipment. Lessee represents and warrants that Lessee has the full right and authority to enter into and fully perform this Agreement in accordance with its terms and that this Agreement constitutes a valid, binding, and enforceable agreement of Lessee, and the execution, delivery, and performance of this Agreement will not violate the provisions of any agreement to which Lessee is a party or by which Lessee is bound. If Lessee is an entity, Lessee hereby warrants that any person which Lessee directs or allows to receive Equipment from Inphase, Inc. and who shall sign for acceptance of the Equipment is authorized by Lessee to do so. Lessee herein waives any obligation on the part of Inphase, Inc. to confirm said person’s authority to act on behalf of Lessee.
4. Indemnification.
Lessee agrees to indemnify, defend, and forever save and hold harmless Inphase, Inc., its affiliates or related entities, and each of their respective principals, shareholders, members, partners, officers, directors, employees, representatives, tenants, agents, and Lessees (sometimes collectively referred to herein as the “Inphase, Inc. Indemnitees” and individually as an “Inphase, Inc. Indemnitee”), from and against any and all damages, claims, losses, demands, costs, expenses (including attorneys’ fees and costs), obligations, liens, liabilities, actions, and causes of action, threatened or actual (the “Claims”), which any one of the Inphase, Inc. Indemnitees may suffer or incur arising directly or indirectly out of or in connection with the actions or omissions of Lessee or Lessee’s officers, directors, shareholders, owners, employees, representatives, agents or volunteers, except to the extent arising from the gross negligence or willful misconduct of Inphase, Inc. as such gross negligence or willful misconduct (i) is determined by a final Court judgment from which no appeal is pending or permissible or (ii) is set forth in a settlement agreement signed by Inphase, Inc., Lessee and the third party who or which commenced the action or other legal proceeding which lead to this indemnification provision being applied. The foregoing indemnification shall survive any termination or the expiration of the Term.
As used herein, the term “Equipment” means each separate item of equipment which is rented pursuant hereto as set forth on the Equipment Schedule attached hereto. As a condition of renting the Equipment, Lessee shall first sign a completed Equipment Schedule which will list all Equipment which is subject to this Agreement and the rental rate (whether on daily basis or otherwise) and the replacement value of the Equipment.
5. Payment.
The rental amount, as set forth in the Quote and/or Invoice, is payable by Lessee according to the payment schedule located on such Quote and/or Invoice. A deposit payment, if any, shall be made prior to the time when delivery of the Equipment (or, if applicable, shipment of the Equipment) to Lessee occurs. Inphase, Inc. shall have the ability to hold Equipment until deposit payment or payment in full has been paid by Lessee to Inphase, Inc. If (i) Lessee does not return the Equipment on the date specified in the Equipment Schedule or (ii) any of the returned Equipment constitutes Applicable Equipment or (iii) if the Equipment is lost, stolen, destroyed or otherwise disappears, then the following shall apply: The daily rental rate shall apply for each day (or part thereof) during which the Equipment is not in the possession of Inphase, Inc. in full-working order, including any period of time during which the Equipment is being repaired to full-working order or is being replaced. Notwithstanding the above paragraphs in the case where Inphase, Inc. has determined that the problem with the Applicable Equipment was not caused by the actions or omissions of Lessee, then the continuation of daily rental rate shall not apply as of the complete return of the Applicable Equipment. The immediately preceding sentence shall apply both to the Applicable Equipment and Equipment which has been lost, stolen, destroyed or has otherwise disappeared. Late Charge. If any amount due to Inphase, Inc. under this Agreement has not been paid by Lessee by the 30th day after of the due date of such payment (such 30-day period being referred to herein as the “Initial Period”), then a late fee in the amount of 1.5% of the amount due shall be charged to Lessee with respect to each 30-day period (including the Initial Period) with respect to which such amount is unpaid, provided that such late fee shall be prorated through the date of payment with respect any 30-day period after the Initial Period. The aggregate amount of late fees payable by Lessee shall be paid in full at the first time that Lessee makes any payment to Inphase, Inc. If for any reason the aggregate amount of such late fees is an amount that would exceed the highest lawful rate, then the amount which would constitute the excessive amount shall (when paid) be applied to the reduction of amount due to Inphase, Inc. under this Agreement apart from such late fee.
6. Delivery and Transporting Equipment.
Except in the case where the Equipment is being shipped to Lessee, the Lessee shall pick up and return the Equipment at such location as determined by Inphase, Inc. At Lessee’s request and expense, Inphase, Inc. may arrange shipment of the Equipment to Lessee’s designated location. Lessee is responsible for all costs (transportation charges, taxes, duties, brokers fees, bonds, insurance and any other costs) incurred during transit. Inphase, Inc. is not responsible for shipping delays once the Equipment is delivered to Lessee’s carrier. With respect to the return of the Equipment, Inphase, Inc. will not accept collect shipments from Lessee.
7. Lessee’s Responsibility and Restrictions With Regard To the Equipment.
Upon delivery of the Equipment to Lessee, Lessee assumes all risks of loss and damage with regard to the Equipment. Lessee’s responsibility includes, but is not limited to, risks (i) while in transit, (ii) at all locations named and unnamed and (iii) while on Lessee’s own premises whether in storage or otherwise. Equipment is rented for USA domestic use only and may not be transported out of the USA unless otherwise specifically agreed to in writing, by Inphase, Inc. prior to such transportation. The Equipment may be used only by Lessee or by Lessee’s duly qualified employees and/or agents and in strict accordance with the terms and conditions of this Agreement. Lessee shall keep the Equipment in Lessee’s sole custody and shall not permit the Equipment to be used in violation of any laws. Lessee may not sub rent or sublease the Equipment or permit use by anyone other than Lessee’s qualified technician, without the prior written consent of Inphase, Inc. Lessee may not remove or cover over any serial numbers, tags, nameplates, or identifying logos on the Equipment.
8. Exclusion Of Warranties.
Lessee herein acknowledges that the Equipment to be rented from Inphase, Inc. will be as a result of Lessee’s sole selection, discretion and opinion as to which item(s) Lessee requires for Lessee’s purposes. All Equipment is accepted by Lessee “as is”. No warranties or representations are made by Inphase, Inc. of any type or nature whatsoever, expressed or implied, regarding the description, quality, merchantability, fitness for any particular purpose, performance or any other matter. INPHASE, INC. EXPRESSLY EXCLUDES AND LESSEE HEREBY WAIVES ALL REMEDIES, WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATIONS OF INPHASE, INC. WITH RESPECT TO FITNESS, MERCHANTABILITY AND CONSEQUENTIAL DAMAGES). In no event, under no circumstances, shall Inphase, Inc. be responsible or liable to Lessee or anyone else for any damages, including lost profits, lost savings or other direct or indirect incidental or consequential damages arising out of the use or inability to use any Equipment or the alleged breach of any agreement described herein, even if Inphase, Inc. or Inphase, Inc.’s agents have been advised of the possibility of such damages.
9. Insurance.
The Lessee shall obtain, at Lessee’s sole expense, all-risk insurance coverage equal to the replacement value without deduction for depreciation of the Equipment. The Equipment must be insured by the Lessee before the Equipment leaves the premises of Inphase, Inc. and must include in-transit/shipment insurance coverage. Prior to taking delivery of the Equipment, Lessee shall deliver to Inphase, Inc., a Certificate of Insurance (“COI”) in form and substance satisfactory to Inphase, Inc., showing all risk coverage that is greater or equal to the replacement cost of all Equipment used by the production; coverage that extends through the entire Term. The COI shall name Inphase, Inc., and its officers, directors, shareholders, owners, employees, representatives, agents, contractors, or volunteers as “Additional Insured” and “Loss Payee” and provide all-risk, world-wide coverage for Equipment in transit/shipping.
Such insurance shall be written by reputable insurers acceptable to Inphase, Inc. Lessee’s insurers shall agree to be the primary insurers of the Equipment during the Term. Notwithstanding this Section, Lessee shall remain primarily liable to Inphase, Inc. for full performance under the terms and conditions of this Agreement. Written notice must be given to Inphase, Inc. if insurance is reduced or canceled. Inphase, Inc. may enforce Inphase, Inc.‘s remedies directly against Lessee without resort to Lessee’s insurance.
10. Return Of Equipment – Lost Or Stolen.
If any of the Equipment is missing, lost or stolen, Lessee must notify Inphase, Inc., and immediately file a police report with the local authorities and provide a copy of such report to Inphase, Inc. Lessee shall, at Lessee’s sole cost and expense, return the Equipment on the date specified in the Equipment Schedule. Inphase, Inc. shall have the right to inspect the Equipment at any time during the Term. Lessee shall make any and all reasonable arrangements necessary to permit a qualified employee or representative of Inphase, Inc. access to the Equipment.
11. Title And Ownership.
Lessee specifically acknowledges Inphase, Inc.’s superior title and ownership of the Equipment and shall keep the Equipment free of all liens, levies and encumbrances. Lessee may not assign or pledge the Equipment.
12. Default or Termination.
Each of the following shall constitute an “Event Of Default” by Lessee: (i) Lessee defaults on any of the terms, covenants and conditions of this Agreement, (ii) Lessee fails to punctually make any of payments hereunder, (iii) any execution or other writ or process shall be issued in any action or proceeding against Lessee whereby the Equipment might become or appear to become in danger of being seized, taken or detained, (iv) any proceeding in bankruptcy, receivership or insolvency is instituted by or against Lessee or Lessee’s property, (v) Lessee enters into any arrangement or composition with Lessee’s creditors, or in the event that any judgment is obtained against Lessee, or (vi) if for any other reason Inphase, Inc. deems itself insecure, or the Equipment in jeopardy. If an Event Of Default occurs, then Inphase, Inc. shall have the option of declaring this Agreement terminated and Inphase, Inc. may, without notice or demand, by process of law or otherwise, take possession of the Equipment and, for such purpose, may remove the Equipment, with or without force, and with or without notice of intention to retake the same, without being liable to Lessee or any third party in any suit or action and Lessee shall hold Inphase, Inc. harmless and indemnify Inphase, Inc. against any such claims or alleged liability to third parties. Any or all of the foregoing remedies are expressly permitted, consented to, and authorized by Lessee. If Inphase, Inc. takes possession of the Equipment, Lessee shall remain liable for all rental charges through the day on which such possession occurs.
Nothing contained herein shall be construed to bar or prevent Inphase, Inc., in the event of monies being due Inphase, Inc. for rental, repair, replacement, or other costs, from suing and receiving the monies due it, and from repossession of the Equipment, the costs and expenses of which including legal fees, shall be borne by Lessee.
13. Severability.
If any provision of this Agreement, as applied to any party or to any circumstance, shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of this Agreement, the application of any such provision in any other circumstance, or the validity or enforceability of this Agreement. Any provision which is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
14. Effect Of Agreement; Assignment.
This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns, except that Lessee shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of Inphase, Inc. Any such attempted assignment without consent shall be void and of no effect. Inphase, Inc. shall have the right to assign its rights and obligations under this Agreement without the consent of Lessee.
15. Force Majeure.
Inphase, Inc. shall not be liable to Lessee for any delay or failure in performance due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, flood, earthquake, storm, hurricane, war, terrorism, civil disturbance, labor disputes, strikes, lockouts, epidemic, pandemic, governmental restrictions, supply chain disruptions, delays in transportation, or failure of suppliers to deliver as promised. In the event of such delay or failure, the time for Inphase, Inc.’s performance shall be extended for a period equal to the time lost by reason of the delay.
16. Notices.
Except as otherwise expressly provided in this Agreement, any notices or other communication required or permitted hereunder shall be in writing and shall be delivered in person (by hand or by messenger) or shall be sent via U.S. Postal Service Express Mail or Federal Express, UPS, or other similar recognized private overnight delivery service, prepaid, or, if sent to Lessee, by email. A notice given as provided herein shall be deemed duly given (i) upon delivery if delivered on a business day before 5 p.m. local time, or the next business day if delivered after 5 p.m. on a business day or on a holiday or weekend, or (ii) upon refusal of such delivery, or (iii) if sent to Lessee by email, upon sending of such email by Inphase, Inc. Any notices hereunder shall be addressed to the parties at the addresses or, if applicable, email addresses set forth in the signature block below. Either party may change the address at which it receives notices by notifying the other party of such change in the manner provided herein.
Notices to Inphase, Inc. shall be sent to: Inphase, Inc. 27811 Avenue Hopkins, Suite 2 Valencia, CA 91355 Email: [email protected]
17. Waiver.
No waiver by either party of any term or condition of this Agreement shall be deemed or construed as a waiver of any other term or condition, nor shall the waiver of any breach be deemed to be a waiver of any subsequent breach, whether of the same or different provision of this Agreement.
18. Choice Of Law; Jurisdiction.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California, without giving effect to its conflict of laws principles. The parties agree that any action, suit, or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Los Angeles County, California, and each party consents to the jurisdiction of such courts.
19. Entire Agreement.
This Agreement, together with the Invoice and/or Quote, and any Equipment Schedule(s) referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and representations, whether oral or written. No amendment or modification of this Agreement shall be binding unless in writing and signed by both parties.
