Personal Property Lease
This Lease (“Agreement“), dated as of DATE, is by and between Now Pools, LLC, an Arizona limited liability company (“Lessor“), and CUSTOMER NAME, an individual living at CUSTOMER ADDRESS (“Lessee,” and together with Lessor, the “Parties,” and each, a “Party“).
WHEREAS, Lessor is in the business of leasing above-ground pools; and
WHEREAS, Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee the equipment more specifically described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Lease. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment described more fully in Schedule A (the “Equipment“).
- Operation. Lessee shall ensure that an adult is present at all times during the use or operation of the Equipment by any individual under 18 years of age. Lessee further agrees that Lessee shall not remove the Equipment from Lessee’s address specified on the first page above without prior written approval of Lessor. All water and electrical utilities shall be the responsibility of the Lessee.
- Maintenance. Lessee agrees that it shall, at its own expense, keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, shall use the Equipment only for its intended purpose and shall follow Lessor’s instructions regarding the use and maintenance of the Equipment provided however that Lessor agrees that it shall inspect and perform standard maintenance of the Equipment on a weekly basis. To ensure that Lessor is able to inspect the Equipment and perform such maintenance, Lessee shall, at its risk and expense, allow Lessor or Lessor’s agent to enter Lessee’s premises at all reasonable times to inspect the state and condition of the Equipment and to perform such maintenance.
- Term and Termination. This Agreement shall become effective on the date of this Agreement and shall continue unless and until Lessee either requests that the Equipment be picked-up consistent with Section 10.2 or Lessee takes ownership of the Equipment consistent with Section 6. If the Equipment is not returned at the end of the Minimum Term, this Agreement shall be extended from month to month on the terms and conditions stated in this Agreement (each a “Renewal Period” and collectively with the Minimum Term defined as the “Term.”). In no event shall this Agreement terminate prior to the end of the Minimum Term unless terminated as provided in this Section 4. In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon notice to the other Party, if the other Party: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Lessee is in default of any of the terms and conditions of this Agreement, Lessor, and its agents, at Lessee’s risk, cost, and expense may at any time enter Lessee’s premises where the Equipment is stored or used and recover the Equipment.
- Fee. In consideration of Lessee’s right to possess and use the Equipment during the Term (as defined in 13), Lessee shall pay the fees according to the payment schedule in Schedule A (“Fee“) (with the first fee due on the date of this Agreement first above written) and shall continue to make such payments unless and until Lessee either requests that the Equipment be picked-up consistent with Section 10.2 or Lessee takes ownership of the Equipment consistent with Section 6. Payment shall be made without any set-off, offset, abatement, or deduction whatsoever in US dollars by the payment method described in Schedule A. Lessee shall pay interest on all late payments at the lesser of the rate of 1.5% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Lessee of any default under this Agreement.
- Option to Buy. Provided that Lessee pays all of the fees according to the payment schedule in Schedule A and that Lessee is not then in breach of this Agreement, Lessor shall transfer, convey, assign, and deliver to Lessee ownership of the Equipment and Lessee shall accept all right, title, and interest in and to the Equipment. The Parties agree that ownership shall be transferred on or as close to the end of the Term as possible and that such transfer of ownership shall relieve the Parties of any obligations in Sections 10.2 through 10.4.
- Limited Warranty. Lessor shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer’s specifications and operation instructions. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Equipment or the Lessor is able to access the Lessee’s premises with the replacement equipment. Lessee shall return all non-conforming Equipment at its expense and risk of loss to Lessor to the destination specified by Lessor. Products not described in Schedule A as Equipment (“Third-Party Product“) are not covered by the above limited warranty.
The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Lessor, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Lessor.
OTHER THAN AS SET FORTH ABOVE, LESSOR MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THE REMEDIES SET FORTH IN THIS 6 ARE LESSEE’S SOLE AND EXCLUSIVE REMEDIES AND LESSOR’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
- Title and Risk of Loss. Title to the Equipment remains with Lessor throughout the Term, and Lessee shall acquire no right, title, or interest in the Equipment except as described in Section 6. Lessee shall not pledge or encumber the Equipment in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever (“Loss“) until the Equipment has been returned to Lessor as specified in Section 10 or ownership has transferred to Lessee as specified in Section 6. Lessee shall notify Lessor in writing within 10 days of any such Loss.
- Precautionary UCC-1 Financing Statement. Lessee authorizes Lessor to file precautionary Uniform Commercial Code (“UCC“) financing statements and other similar filings and recordings with respect to the Equipment. Lessee agrees not to file any corrective or termination statements or partial releases with respect to any UCCs or other similar filings or recordings filed by Lessor in connection with the Equipment except (i) if Lessor fails to file a corrective or termination statement or release on request from Lessee after the expiration or earlier termination of this Agreement or (ii) with Lessor’s consent.
- Drop-Off and Return of Equipment.
- Drop-Off. On the date identified in Schedule A, Lessee agrees that it shall allow Lessor or Lessor’s agent to enter Lessee’s premises to deliver and install the Equipment. At the time of installation, Lessee shall ensure that Lessor or Lessor’s agent has reasonable access to water and electrical. Lessor shall install the Equipment at the location chosen by Lessee provided however that if in the Lessor’s judgment, the location chosen by Lessee presents an unreasonable risk to health, human safety, or property, or does not have reasonable access to water and electrical, Lessee shall choose an alternative location that is acceptable to Lessor.
- Pick-Up Notice. Lessee must give Lessor twenty (20) days notice prior to the termination or expiration of the Term to make arrangements for pick up of the Equipment. If Lessee fails to provide such notice, Lessee will be charged the next Fee as a penalty.
- Obligation to Return Equipment. At the expiration of the Term, Lessee shall, at its risk and expense, allow Lessor or Lessor’s agent to enter Lessee’s premises to inspect, deinstall, and remove the Equipment provided however that Lessee shall be responsible for the draining of water from the Equipment and, if Lessee fails to drain water from the Equipment prior to Lessor’s arrival at Lessee’s property, Lessee will be charged the next Fee as a penalty.
- Condition of Equipment Upon Return. Lessee shall cause the Equipment returned for any reason under this Agreement to (a) be free and clear of all liens (other than liens of Lessor) and rights of third parties; (b) be in the same condition as when delivered to Lessee, ordinary wear and tear excepted;; and (c) be in compliance with applicable law.
- Compliance with Law. Lessee shall (a) comply with all applicable laws, regulations, and ordinances including, to the extent applicable, Arizona Revised Statutes § 36-1681 et seq. and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
- Indemnification. Lessee shall indemnify, defend, and hold harmless Lessor and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party“) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Lessor arising out of or occurring in connection with the Equipment or Lessee’s negligence, willful misconduct, or breach of this Agreement. Lessee shall not enter into any settlement without Lessor’s or Indemnified Party’s prior written consent.
- Insurance. During the term of this Agreement, Lessee shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, property and general liability insurance in a sum no less than $100,000 with financially sound and reputable insurers. Upon Lessor’s request, Lessee shall provide Lessor with a certificate of insurance from Lessee’s insurer evidencing the insurance coverage specified in this Agreement. Lessee shall provide Lessor with 30 days’ advance written notice in the event of a cancellation or material change in Lessee’s insurance policy. Except where prohibited by law, Lessee shall require its insurer to waive all rights of subrogation against Lessor’s insurers and Lessor.
- Confidential Information. All non-public, confidential, or proprietary information of Lessor, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Lessor to Lessee, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Lessor in writing. Upon Lessor’s request, Lessee shall promptly return all documents and other materials received from Lessor. Lessor shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Lessee at the time of disclosure; or (c) rightfully obtained by Lessee on a non-confidential basis from a third party.
- Promotion and Fair Use. Lessee agrees that Lessor may take photographs or record videos of the installation, use, or return of the Equipment and may use such photographs or videos for publicity, promotion, training or any other purposes provided that, without Lessee’s prior, written and express consent, Lessor shall not use any photographs or videos containing Lessee’s likeness or any other personally identifiable information. Lessor may also publicize the existence of and execution of this agreement for promotional purposes.
- Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
- Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 11, 12, 14, 15, 21, 22, 23, 24, 25, and 26 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
- Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this 17). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section 18.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, and signed by an authorized representative of each Party.
- Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Lessee’s rights under Section 6 are Lessee’s exclusive remedies for the events specified therein.
- Assignment; Successors and Assigns. Lessee shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Lessor. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Lessee of any of its obligations hereunder. Lessor may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Lessee’s prior written consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Law and Choice of Forum. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Arizona, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Arizona and in each case located in Maricopa County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Limitation of Liability. IN NO EVENT SHALL LESSOR BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY WATER, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LESSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL LESSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO LESSOR HEREUNDER.
- Force Majeure. Lessor shall not be liable or responsible to Lessee, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Lessor including, without limitation, acts of God, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
- Authority to Sign. Each of the persons signing below on behalf of any party hereby represents and warrants that he or she or it is signing with full and complete authority to bind the party on whose behalf of whom he or she or it is signing, to each and every term of this Agreement. Lessee further agrees that Lessee is the owner of the property located at the address set forth on the first page of this Agreement and has the power and authority to bind
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 18, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- Headings. Headings in this Agreement are for convenience of reference only, and are not to be used in any interpretation of the agreement between the parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.