Terms & Conditions
The Customer (as defined below) agrees and acknowledge that Customer has read, understands, accepts full responsibility for and is bound by the terms and conditions contained in this Rental Agreement (as defined below), which also consists of any optional products purchased by Customer in connection with this rental and the Reservation Details (as defined below) hereof for the Rental Period (as defined below) whether or not subsequent agreements are executed by Customer or if Lux Baby assigns a new agreement number during the Rental Period for the purpose of invoicing Customer.
1. DEFINITIONS. “Rental Agreement” means this Online Rental Agreement, including the Reservation Details. “Lux Baby” means Lux Baby Inc. “Equipment” means any one or more of the items identified in the Reservation Details and any accessories, attachments or other similar items delivered to Customer. “Customer” means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer. “Store Location” means the closest Lux Baby branch location to the Job Location described in the Reservation Details. “Rental Period” means the period of time between the date “From” and date “To,” set forth in the Reservation Details, except that the Rental Period may extend or terminate earlier as provided in Sections 16 and 22 hereof or if Customer returns the Equipment earlier. “Reservation Details” means the Equipment, Rental Period, Delivery Information, Payment Information and other information set forth on the Confirmation/Order Summary Screen. “Credit Card” means the credit card provided by Customer as part of this Rental Agreement or otherwise kept on file with Lux Baby.
2. AUTHORITY TO SIGN. Any individual agreeing to this Rental Agreement represents and warrants that he or she is of legal age, and has the authority and power to sign this Rental Agreement on behalf of Customer.
3. INDEMNITY / HOLD HARMLESS. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD LUX BABY, AND ANY OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO THE OPERATION, USE, POSSESSION OR RENTAL OF THE EQUIPMENT. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST LUX BABY BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY LUX BABY FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF LUX BABY. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS AGREEMENT, CUSTOMER EXPRESSLY AND SPECIFICALLY AGREES THAT THE FOREGOING OBLIGATION TO INDEMNIFY SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL LIMITATION OF LIABILITY OR IMMUNITY CUSTOMER ENJOYS FROM SUITS BY ITS OWN EMPLOYEES. THE DUTY TO INDEMNIFY WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE RENTAL AGREEMENT.
4. INSPECTION OF EQUIPMENT.Customer acknowledges that Customer will inspect the Equipment prior to taking possession thereof, and Customer will only accept delivery of the Equipment if Customer determines that the Equipment is in good working order and repair, and is suitable for Customer’s needs. Customer further acknowledges that Customer will inspect the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or public road, prior to taking possession thereof, and Customer will take delivery of such Equipment only if such propulsion tank contained no dyed fuel. Customer acknowledges that Customer is familiar with the proper operation and use of each item of Equipment. Customer acknowledges that, prior to taking possession of the Equipment, Customer will obtain and read all safety bulletins, operator manuals, and tabulated data for each item of Equipment. Customer agrees to inspect all hitches, bolts, safety chains, hauling tongues and other devices and materials used to connect the Equipment to any towing vehicle. Customer acknowledges Lux Baby is not responsible for any damage to any towing vehicle caused by detachable hitches or mirrors.
5. LIMITATION OF LIABILITY.In no event shall Lux Baby be liable or responsible to Customer or any other party for: (i) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its operation or its use, (ii) Lux Baby’s failure to deliver the Equipment as required hereunder, or Lux Baby’s failure to repair or replace non-working Equipment; (iii) or any incidental, consequential, punitive or special damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to Lux Baby and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.
6. USE OF EQUIPMENT.
A. Customer will not use or allow anyone to use the Equipment: (i) for an illegal purpose or in an illegal manner; (ii) without a license, if required under any applicable law, (iii) or who is not qualified to operate it. Customer agrees, at Customer’s sole expense, to comply with all applicable municipal, state, and federal laws, ordinances and regulations (including O.S.H.A. and the Internal Revenue Code) which may apply to the use of the Equipment. Customer shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or other public road. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD LUX BABY HARMLESS FROM ALL FINES, PENALTIES AND COSTS INCURRED BY LUX BABY. Customer agrees to: (i) check filters, oil, fluid levels and tire air pressure; (ii) clean and visually inspect the Equipment daily; (iii) and immediately notify Lux Baby when Equipment needs repair or maintenance and cease using the Equipment. Customer acknowledges that Lux Baby has no responsibility to inspect the Equipment while it is in Customer’s possession. Lux Baby shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.
B. IN CALIFORNIA ONLY: If any of the Equipment is power operated or power-driven excavating or boring equipment, it is the sole responsibility of Customer to follow the requirements of the regional notification center law pursuant to Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1 of the Government Code. By agreeing to this Rental Agreement, Customer accepts all liabilities and responsibilities contained in the California regional notification center law.
7. DISCLAIMER OF WARRANTIES. LUX BABY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS RENTAL AGREEMENT, LUX BABY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION.
8. MALFUNCTIONING EQUIPMENT.Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify Lux Baby. If such condition is the result of normal operation, Lux Baby will repair or replace the Equipment with reasonably-similar Equipment in working order, if such replacement Equipment is available. Lux Baby has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect. Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Customer must return the Equipment to the Store Location within 24 hours from the time of defect in order to terminate rental charges.
9. RETURN OF EQUIPMENT /DAMAGED & LOST EQUIPMENT. At the expiration of the Rental Period, Customer will return the Equipment to Lux Baby. The Equipment is to be in the same condition as when delivered to Customer, subject to reasonable wear and tear, as defined below. Lux Baby shall endeavor to pick up the Equipment within a commercially reasonable period of time. Customer shall be liable for all damages to or loss of the Equipment from the time the Equipment leaves the Store Location until the Equipment is (i) returned to the Store Location, including any damage during transit to or from Customer; (ii) or picked up by Lux Baby. In the case of the loss or destruction of any Equipment, or inability or failure to return same to Lux Baby for any reason whatsoever, Customer will pay Lux Baby the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay Lux Baby the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. Lux Baby shall be under no obligation to commence repair work until Customer has paid to Lux Baby the estimated cost therefor. Customer agrees that Lux Baby reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to damaged or lost Equipment.
10. REASONABLE WEAR AND TEAR.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift basis (as defined in Section 12 below). The following shall not be deemed reasonable wear and tear: (i) damage resulting from improper use; (ii) except where Lux Baby expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer’s operation and maintenance manual; (iii) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rated capacity of the Equipment; (iv) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (v) and any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.
11. LATE RETURN. Customer agrees that if the Equipment is not returned by the end of the Rental Period, Lux Baby, in its sole discretion, may require Customer to do any of the following: (i) continue to pay the rental rate(s) applicable to the Equipment as specified in the Reservation Details; (ii) for periods less than 24 hours, pay the full daily rental rate applicable to the Equipment; (iii) or pay any increased rental rate(s) in effect at the time of, or after, the expiration of the Rental Period. Customer agrees that Lux Baby reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to late return of Equipment.
12. RENTAL PERIOD / CALCULATION OF CHARGES.
A. Rental charges commence when the Equipment is delivered to Customer and end when the Equipment is returned to Lux Baby. Rental charges do not include the cost of any applicable taxes, the cost of the Delivery and Pickup Service Charge, transportation surcharges, the cost of the Environmental Service Charge or other miscellaneous charges. If Customer chooses to have Lux Baby deliver and pick up the Equipment, Customer agrees to pay a Delivery and Pickup Service Charge. Rental charges accrue during Saturdays, Sundays and Holidays. Customer’s right to possess the Equipment terminates on the expiration of the Rental Period and retention of possession after this time is a material breach of this Rental Agreement. TIME IS OF THE ESSENCE.
B. IN CALIFORNIA ONLY: Customer acknowledges that an “Estimated Personal Property Tax Reimbursement Charge” will be applied to all rented Equipment at a rate of up to 0.75% of the rental amount. By agreeing to this Rental Agreement, Customer agrees to pay this charge.
13. DEPOSIT.In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms, covenants, and agreements to be performed by Customer hereunder. In the event of any breach by Customer, the deposit will be credited against any damages, cost or expense incurred by Lux Baby as a result of the breach.
14. PAYMENT.All amounts due hereunder shall be payable in full upon receipt of invoice by Customer. Customer acknowledges that timely payment of rental charges is essential to Lux Baby’s business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and Lux Baby agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of 2% per month (24% per annum) on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law. Customer agrees that Lux Baby reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to late or past due payment(s) or rental charges.
15. TITLE / NO PURCHASE OPTION / NO LIENS.This Rental Agreement is not a contract of sale, and title to the Equipment shall at all times remain with Lux Baby. Unless covered by a specific supplemental agreement signed by Lux Baby, Customer has no option or right to purchase the Equipment. Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances.
16. DEFAULT.Customer shall be deemed in default should Customer: (i) in any way fail to pay any amount when due hereunder, or to perform, observe or keep any provision of this Rental Agreement; (ii) become “Insolvent” (as defined herein), or should Lux Baby anticipate that Customer may become Insolvent; (iii) or otherwise be in default. If Customer is in default, Lux Baby may do any one or more of the following: (i) terminate the Rental Period; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (iii) cause Lux Baby’s employees or agents, with notice but without legal process, to enter upon Customer’s property and take all action necessary to retake and repossess the Equipment, and Customer hereby consents to such entry, re-taking and re-possession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by Lux Baby in retaking and repossessing the Equipment; (iv) or pursue any other remedies available by law. Customer shall be considered “Insolvent” if Customer shall: (i) generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; (ii) make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; (iii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; (iv) have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made; (v) or take any action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or any substantial part of its properties.
17. NO ASSIGNMENT, LENDING OR SUBLETTING.Customer shall not sublease, subrent, assign or loan the Equipment without first obtaining the written consent of Lux Baby, and any such action by Customer, without Lux Baby’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth on the first page of this Rental Agreement unless Lux Baby approves otherwise in writing. Lux Baby may at any time, without notice to Customer, transfer or assign this Rental Agreement or any Equipment or any moneys or other benefits due or to become due hereunder.
18. ENTIRE AGREEMENT / ONLY AGREEMENT.The Rental Agreement, including the Reservation Details, represents the entire agreement between Customer and Lux Baby with respect to the Equipment and the rental of the Equipment. There are no oral or other representations or agreements not included herein. None of Lux Baby’s rights or Customer’s rights may be changed and no extension of the terms of this Rental Agreement may be made except in writing, signed by both Lux Baby and Customer. Any use of Customer’s purchase order number on this Rental Agreement is for Customer’s convenience only and terms and conditions, whether oral or written, that are different or inconsistent with the terms contained herein are hereby rejected by Lux Baby.
19. ORDER OF PRECEDENCE.The terms and conditions of this Rental Agreement shall control over any conflicting preprinted terms and conditions contained in Customer’s purchase order or similar documents and such other terms are hereby rejected by Lux Baby.
20. CLASSACTION WAIVER.Customer agrees that any claims or proceedings brought by Customer relating to this Rental Agreement will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. Customer will not sue Lux Baby as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against Lux Baby. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
21. JURY WAIVER. The federal and state courts in the county in which the Store Location is located shall have exclusive jurisdiction over all matters relating to this Rental Agreement. TRIAL BY JURY IS WAIVED. In order to effect service of process on Lux Baby, please contact the Secretary of State Corporations Division or the equivalent office in your state to obtain the name of the registered agent and the registered office address that is on file with the Secretary of State for Lux Baby. Lux Baby shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.
22. OTHER PROVISIONS.
A. Any failure of Lux Baby to insist upon strict performance by Customer of any terms and conditions of this Rental Agreement shall not be construed as a waiver of Lux Baby’s right to demand strict compliance. Customer has carefully reviewed this Rental Agreement and waives any principle of law which would construe any provision hereof against Lux Baby as the drafter of this Rental Agreement. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Rental Agreement.
B. Customer agrees to pay all reasonable costs of collection, court, attorneys’ fees and other expenses incurred by Lux Baby in the collection of any charges due under this Rental Agreement or in connection with the enforcement of its terms.
C. Customer shall pay the rental charge(s) without any offsets, deductions or claims.
D. Customer consents to the collection, use, and disclosure of his or her personal identification and financial information as described herein. Customer’s personal identification and financial information is provided voluntarily and not as part of a credit card transaction. Personal identification information includes, for example, Customer’s name, billing address, ZIP code, telephone number, date of birth, driver’s license number, and email address. Financial information includes, for example, information related to any balances or invoices related to the Rental Agreement. Customer’s personal identification information can be used for purposes of this transaction, any subsequent transactions with Lux Baby, and for Lux Baby to evaluate and improve its products and services and/or develop new products or services. Customer’s personal identification information and/or financial information may be disclosed to contractors, service providers, and other third parties that support Lux Baby’s business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
E. Lux Baby shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of: (i) permanent closure of the Store Location; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government; (iii) or as otherwise set forth in this Rental Agreement.
F. Customer expressly acknowledges that Customer and Lux Baby are the only parties to this Agreement, notwithstanding that a reservation for the Equipment may have been arranged by a third party or that a third party may pay for all or part of the rental bill.
G. For matters arising from this Agreement, Customer authorizes Lux Baby to verify and obtain through credit agencies or other sources Customer’s credit and insurance information.
H. A Cleaning Charge will apply to Equipment returned with excessive dirt, concrete and/or paint. Customer is responsible for all damage. There will be an additional charge for missing keys.
I. In the event the terms contained in this Rental Agreement conflict with any terms of any preexisting written agreement signed by authorized representatives of the Customer and Lux Baby (the “Written Agreement”), the terms of the Written Agreement shall supersede the terms of this Rental Agreement.
I. CRIMINAL WARNING: The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the Rental Period may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.
23. OPTIONAL RENTAL PROTECTION PLAN.
A. The Rental Protection Plan (“RPP”) is an optional product that modifies certain terms of this Rental Agreement. THIS SECTION 23 IS ONLY APPLICABLE PROVIDED YOU HAVE ELECTED TO “ACCEPT” THE RENTAL PROTECTION PLAN.
B. TERMS AND CONDITIONS. In return for payment of the fee set forth in the Rental Agreement, Lux Baby agrees to limit its rights under Sections 9 thereof as follows:
i. DAMAGE WAIVER. Subject to the conditions set forth herein, Lux Baby waives its right to collect amounts from Customer exceeding the lesser of 10% of replacement value of the Equipment, 10% of the cost of repairs, or $500, plus applicable state and local taxes, from losses arising from theft of or direct physical damage to the Equipment.
ii. USER. Customer agrees that Customer, or a permissive user of a Customer, will be the only driver of any Lux Baby vehicle, and that Customer will not use the vehicle in violation of any terms of this Rental Agreement or law.
iii. EXCLUSIONS. Lux Baby will not waive a claim for loss or damage to tires and tubes caused by blow out, bruises, cuts, punctures or other causes inherent in the use of the Equipment; or resulting from intentional abuse of the Equipment. Such losses shall remain subject to Section 9 above.
iv. FEE. Customer shall pay a fee equal to 15% of the charges under the Rental Agreement in exchange for participation in RPP as set forth in this Section.