Liability Waiver and Rental Agreement

Liability Waiver and Rental Agreement
(hereinafter referred to as the “Agreement”)

I,(hereinafter referred to as “Renter”), hereby agree to disclaim, waive and release Babies Need Gear, LLC, its heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations affiliated in any way with Babies Need Gear, LLC (hereinafter collectively referred to as “BNG”), from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of any and all injuries, known and unknown, to person or to property or both, which result in any way from the use of the products rented from BNG by Renter (the products rented from BNG by Renter are hereinafter collectively referred to as the “Equipment”). Without limiting the generality of the foregoing, BNG will not be held liable for any injury to Renter, Renter’s children, or any other adults or children, or any damage to property by the use of the Equipment. RENTER IS RENTING THE EQUIPMENT AT RENTER’S OWN RISK. Renter also acknowledges that Renter is familiar with, and knows how to operate, the Equipment and is taking full responsibility for using the Equipment.

Renter represents and warrants that (i) each item of rented property is of a type, design, quality and manufacture selected by Renter, acceptable to Renter and suitable for Renter’s purposes, (ii) Renter acknowledges that BNG is not the manufacturer or supplier of the equipment or the representative of either, that BNG is not required to enforce any manufacturer’s warranties on behalf of BNG or Renter, and (iii) that BNG rents the equipment to Renter “As Is”, without warranty or representation either express or implied, and BNG expressly disclaims any warranty, express or implied, as to (a) the title, condition, fitness for use for a particular purpose, design, compliance with specifications, operation, or merchantability thereof, (b) the absence of latent or other defects, whether or not discernable, (c) the absence of infringement of any patent, trademark or copyright, or (d) any other matter whatsoever, it being agreed that all such risks, as between BNG and the Renter are to be borne by the Renter.

Renter further agrees to indemnify and  hold harmless BNG from and against any and all claims, liabilities, including negligence, tort and strict liabilities, demands, actions, suits and proceedings, losses, costs, penalties, and damages, including without limitations, reasonable attorneys’ fees and costs (collective, “Claims”), arising out of, connected with, or resulting from the manufacture, selection, rental, purchase, delivery, possession, condition, use, operation, handling, transportation or return of the Equipment.

Rental Information

The undersigned renter agrees that the rented items will at all times remain the property of the rental agent, BNG. S/he has examined the item(s) and found it/them to be in good condition and will return it/them in as good a condition as when s/he received the items. Linens need not be laundered before returning.

There will be an additional charge for rental items returned with parts missing or in exceptionally dirty condition.  If the item(s) are returned damaged, the renter will be obligated to pay the accumulated rental fee plus the cost of repair. If the item(s) are in irreparable condition, the renter shall be obligated to purchase the item(s) at the suggested retail price. This does not apply to ordinary wear.

The exact length of time items are to be rented will be written on the contract. The length of the rental agreement may be changed only by a phone call and verbal permission prior to the original written return date. It is the responsibility of the renter to contact BNG for any changes. If the renter fails to make the rented items available for return at the agreed upon time, BNG may repossess the items without notice to the renter, and BNG is released from any claims arising. If repossession is not deemed possible, BNG reserves the right to charge renter’s credit card recorded on the order form the accumulated rental fee plus replacement cost.

Delivery within designated delivery area is $20.00.  There is an additional delivery charge for extended delivery areas. Any return trips which are not the fault of BNG will result in an additional charge.

NOTE: Full size cribs assembled on site are not to be moved to another room without permission from BNG. Moving may cause damage and will result in additional charges. All safety gates, unless permanently installed, are for use at the BOTTOM of stairs ONLY. Car seats are to be installed by client only. BNG can not install a car seat. Client is responsible for explaining any issues that they have with car seats or other rented equipment. Safety of others is at stake. We appreciate your cooperation in this policy.

The rented items may come with special instructions. The renter is responsible for reading and following the instructions as printed. Renter is liable for any misuse of equipment, and in the event of a mishap, agrees to accept full responsibility and shall not hold BNG liable for any claims or actions arising there from. In no event will BNG be held liable for any damage, loss or injury (including death) caused by or arising out of the use of any equipment provided by BNG, or the failure of the equipment to function as intended. Under no circumstances will BNG be responsible for attorney’s fees arising from any action listed above. Full right, title and ownership of the equipment will at all times remain vested with BNG.

Additional General Provisions

1. Governing Law and Jurisdiction.       This Agreement is made and shall be governed and construed in all respects, including validity, interpretation and effect, by the laws of the State of Utah. The federal and state courts within the State of Utah shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Representative hereby expressly consents to (i) the personal jurisdiction of the federal and state courts within Utah, and (ii) service of process being made upon him by registered mail sent to the address set forth at the beginning of this Agreement.

2. Entire Agreement; Amendment; No Waiver. This Agreement and the exhibits attached hereto set forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. Each party hereto acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting with authority on behalf of any party, which are not embodied herein or in an exhibit hereto, and that no other agreement, statement or promise may be relied upon or shall be valid or binding. No amendment, waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the affected party. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.

3. Notices.           All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed to the addresses set forth above. Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.

4. Force Majeure.            Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party. Upon giving prompt notice of force majeure to the other party, the party so affected shall be released without any liability being attached to the canceling party or the other if the circumstances of force majeure continue for more than six (6) months.

5. Severability.    If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.

6. Construction.  Each party and their attorneys have had the opportunity to participate fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.

7. Non-Assignability and Binding Effect.          The rights and obligations of Renter under this Agreement may not be assigned or delegated, directly or indirectly, either in whole or in part without BNG's prior consent in writing. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their heirs, personal representatives, agents, officers, directors, shareholders, partners, servants, employees, successors and assigns, but shall not confer, expressly or by implication, any rights or remedies upon any other party. 

8. Counterparts; Facsimile Signature.  This Agreement may be executed in multiple counterparts, which taken together shall constitute one instrument and each of which shall be considered an original for all purposes. For purposes of executing this Agreement, a document signed and transmitted electronically, by email, by Internet, by facsimile machine or telecopier is to be treated as an original document.

9. Arbitration.     In the event of any dispute between the parties hereto arising out of this Agreement wherein such dispute remains unresolved for thirty (30) days, the dispute shall be submitted to arbitration, in which each party selects one arbitrator and those two select a third arbitrator. The decision of the majority of the arbitrators shall be final and binding upon the parties hereto. Each party shall pay one half of the costs of arbitration.

10. Word Usage.   Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; and (e) “includes” and “including” are not limiting.

11. Headings. The paragraph and subparagraph headings used in this Agreement are intended for convenience only and shall not be used in the construction or interpretation of this Agreement or any of its provisions or in determining any of the rights or obligations of the parties to this Agreement.

12. Further Acts.   Each of the parties hereto shall execute and deliver such other and further documents and instruments, and take such other and further actions, as may be reasonably requested of them for the implementation and consummation of this Agreement and the transactions herein contemplated.

13. Third Parties.   Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over against any party to this Agreement.

14. Survival of Representations. All representations and warranties of the parties contained in this Agreement shall survive the execution of this Agreement.

Renter hereby declares that the terms of this Rental Agreement and Waiver have been completely read and are fully understood and voluntarily accepted. Renter acknowledges that the purpose of this Rental Agreement and Disclaimer is to induce BNG to rent the Equipment to Renter. Renter acknowledges that Renter is precluded forever from any claims against BNG arising out of the rental.