Service and Equipment Agreement
SERVICE AND EQUIPMENT AGREEMENT
This Service and Equipment Agreement (the "Agreement") is effective this ____ day of ________, 202_ (the "Effective Date") between KEY PRODUCTIONS LLC. d.b.a. SandBagRental.com, 1038 E. Bastanchury Road, #241 Fullerton, CA 92835 ("SandBagRenta.com") and ("Customer") (together, the “Parties”), for the time between Delivery Date and Pickup Date (the “Term”), as follows:
1. Scope of Services; Independent Contractor. SandBagRental.com will provide transport in conjunction with Customer’s rental of equipment (the “Services”). SandBagRental.com may use any of its employees or subcontractors to perform Services, provided that (a) such personnel are all subject to Customer’s prior consent, which may not be unreasonably withheld, and (b) SandBagRental.com will cause such personnel to execute any additional documents that Customer may request to effectuate the terms of this Agreement (including any confidentiality agreements).
2. Independent Contractor. Because SandBagRental.com is providing Services as an independent contractor, Customer may not dictate the manner by which SandBagRental.com provides Services other than that they be provided punctually, to the best of SandBagRental.com’s ability, and consistent with industry practices.
Nothing in this Agreement makes Customer and SandBagRental.com partners, joint employers, or otherwise associated with or in the business of the other. Neither Party is the agent, master or servant of the other for any purpose, neither Party has any general authority to enter into any contract or incur any debts or other obligations on behalf of the other Party, and neither Party will be liable for any debts, accounts, obligations or other liabilities of the other Party except as specifically provided in this Agreement.
3. Labor Charges. Labor charges are based on the information provided by Customer. Any changes or additions to equipment, labor, or transport made after the Effective Date may result in additional charges. Labor charges are subject to SandBagRental.com’s usual customs and practices and all applicable laws governing wages, overtime, and double time.
4. Labor-Related Expenses. If Customer agrees in writing to provide labor, travel, meals, hotel accommodations, or equipment (“Expenses”) and fails to do so within seven (7) business days of its receipt of SandBagRental.com’s notice to Customer of such failure, then Customer must reimburse SandBagRental.com for its documented out-of-pocket Expenses.
1. Condition of Equipment. SandBagRental.com will ensure that all leased items (the “Equipment”) is in good working order and current on its scheduled maintenance at the time of rental. In the event of Equipment failure or breakdown due to ordinary wear and tear,
SandBagRental.com will immediately provide Customer with substitute equipment of equal or better quality at SandBagRental.com’s sole cost and expense. Customer will be responsible for all damage incurred while in Customer's possession that is caused by any act or omission of Customer or Customer’s agents. Customer will return all Equipment to SandBagRental.com in good working order (reasonable wear and tear excepted) on the date stated in this Agreement. All Equipment is subject to inspection by SandBagRental.com. Late return and/or missing Equipment is subject to additional charges set forth in this. Agreement or as otherwise mutually agreed by the Parties.
2. Use of Equipment. Customer must use each piece of Equipment only according to the
manufacturer’s specifications, within the safety limits specified for use at Customer’s event, and
in accordance with applicable law.
3. Duration of Equipment Rental. Unless otherwise specified in writing, SandBagRental.com will rent the Equipment to Customer on a week-to-week basis. All rates will apply to each full day or any fraction of a day which has elapsed between the time the Equipment arrives at Customer’s site until the time the Equipment leaves Customer’s site on its way back to SandBagRental.com.
4. Delivery and Return of Equipment. Customer will be deemed to have taken delivery of Equipment from the time Customer or Customer’s agent physically receives it from SandBagRental.com. Customer will be deemed to have examined the Equipment delivered into its possession and accepted it as is unless Customer raises an express written objection to SandBagRental.com. Customer will be deemed to have returned the Equipment (a) when Customer or Customer’s agent physically returns it to SandBagRental.com’s warehouse, or (b) if SandBagRental.com picks up the Equipment at Customer’s site, when SandBagRental.com signs a receipt for return of the Equipment. SandBagRental.com reserves the right to inspect the Equipment upon its return to SandBagRental.com’s warehouse, and to charge Customer for any Equipmentwhich is lost or damaged beyond ordinary wear and tear. Acceptance of returned Equipment is not a waiver by SandBagRental.com of any claims against Customer for loss of or damage to its Equipment.
5. Discounts: SandBagRental.com may suspend or revoke any discounts on Equipment rental rates at any time, following reasonable prior written notice to Customer and upon mutual agreement by the Parties.
6. Safety Devices. Customer must not disable any installed safety device on any piece of Equipment. Customer accepts full responsibility for any injury or property damage to anyone which results from Customer or its agents removing any safety device, and Customer will indemnify and hold SandBagRental.com harmless against any third-party claims, reasonable outside attorneys’ fees, and court costs arising in connection with such removal.
7. Special Product Warranty. Upon Customer’s prior written request, SandBagRental.com will propose terms for a negotiated fee above the Equipment rental price set forth in this Agreement, by which SandBagRental.com will assume certain enumerated risks by way of an additional product warranty. Such SandBagRental.com Service and Equipment Agreement warranty will be attached to this Agreement as a "Special Product Warranty." If no Special Product Warranty signed by both SandBagRental.com and Customer is attached to this Agreement, then Customer will have waived the opportunity to obtain one.
1. Payment in Full. Generally, SandBagRental.com requires payment in full for all Services and Equipment upon execution of this Agreement, unless the Parties expressly agree otherwise. Payment terms may be established with recurring customers that provide credit references and that SandBagRental.com has pre-approved in writing.
2. Security Deposit: Under certain circumstances, SandBagRental.com may require a security deposit. If Customer pays a security deposit by credit card, the charge will be final and binding. Customer and/or card holder waive all rights to dispute charges with the credit card company and agree to resolve any payment disputes as if the charges were paid in cash. If the credit card company fails to honor Customer's charges for any reason, or if Customer’s available credit is insufficient to cover SandBagRental.com’s claim under this Agreement, then Customer will remain liable for the full amount of the claim subject to judgment by a court of competent jurisdiction.
3. Payment for Damaged Equipment. Customer will pay any invoices for loss or damage of Equipment due immediately upon receipt.
4. Cancellation. If Customer cancels this Agreement before the end of the Term without SandBagRental.com’s prior written consent, either in whole or in part, then SandBagRental.com may, in its sole discretion, assess additional charges for its documented actual expenses incurred preparing, holding, manufacturing, holding in reserve, or sub-renting Equipment in order to mitigate its losses (the“Cancellation Fee”). Alternatively, Customer may be charged the amount of its first-dayEquipment rental or Equipment deposit, whichever is greater, it being agreed that surrender of the deposit is reasonable compensation for SandBagRental.com’s restocking costs and loss of opportunity. Any cancellation is subject to the following terms:
a. Cancellation will be effective on the date SandBagRental.com actually receives Customer’s written notice of cancellation. This communication must precede the effective date of cancellation;
b. For cancellation more than thirty (30) days before the first day of the Term, SandBagRental.com will be entitled to twenty percent (20%) of the total price of this Agreement;
c. For cancellation between ten (10) days and thirty (30) days before the first day of the Term,
SandBagRental.com will be entitled to fifty percent (50%) of the total price of this Agreement;
d. For cancellation between three (3) days and nine (9) days before the first day of the Term,
SandBagRental.com will be entitled to eighty percent (80%) of the total price of this Agreement.
SandBagRental.com Service and Equipment Agreement
D. Insurance and Liability
1. Insurance Coverage. SandBagRental.com will, at all times during the Term of this Agreement, maintain insurance policies providing coverage for comprehensive general liability, workers’ compensation,and automobile liability, as applicable, in commercially reasonable amounts subject to Customer’s notice and approval. SandBagRental.com will list Customer as an additional insured and loss payee on the policies and, upon request, provide Customer with certificates of insurance before performing Services under this Agreement. Likewise, Customer will list SandBagRental.com as an additional insured and loss payee on its insurance policies applicable to the Services and Equipment, and Customer will, upon request, provide SandBagRental.com with certificates of insurance before Services are provided or
Equipment is delivered. All certificates of insurance must be signed by an authorized agent or representative of the Party’s insurance carrier.
2. Equipment Insurance Coverage. Customer will maintain an all-risk insurance policy naming SandBagRental.com as an additional insured and loss payee for full replacement value of all Equipment,covering the Term. Customer’s certificate of insurance must state that Customer assumes the entire risk of loss of, damage to, or destruction of Equipment from any cause from the time of delivery to Customer until the Equipment is safely returned to SandBagRental.com in the same condition as delivered, to the extent not caused by any act or omission by SandBagRental.com, its employees or contractors. Any such loss must be paid at full replacement value. Customer may fully repair the Equipment or replace it with a like item acceptable to SandBagRental.com. Customer will provide SandBagRental.com with its applicable certificates of insurance upon request.
3. Cancellation of Insurance: Customer will provide SandBagRental.com with not less than thirty (30) days written notice prior to the cancellation or modification of any insurance required to be maintained by Customer under this Agreement.
4. Limitation of Liability. SandBagRental.com is not responsible for the actions of Customer’s event patrons or guests, and SandBagRental.com is not liable for any loss, damage or injury to persons or property resulting from the negligence or misconduct of any individuals attending the event(s) for which SandBagRental.com is providing Services or Equipment.
5. No Special Damages. EXCEPT AS TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND LIABILITIES RESULTING FROM DEATH, PERSONAL INJURY OR PROPERTY DAMAGE, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, EVEN IF THAT PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS WHETHER SUCH DAMAGES ARE FORESEEABLE.
6. Indemnification and Defense: Customer will indemnify and defend SandBagRental.com and its agents and employees, and hold each of them harmless, against any claims, lawsuits, liabilities, damages, obligations or expenses (including reasonable attorneys’ fees and costs) arising from or relating to (i) any negligence and/or willful misconduct of Customer and/or its agents and employees, and (ii) any material breach by Customer and/or its agents and employees of any representation, SandBagRental.com Service and Equipment Agreement
warranty, covenant, or provision in this Agreement. Similarly, SandBagRental.com will indemnify and defend Customer and its agents and employees, and hold each of them harmless, against any claims,lawsuits, liabilities, damages, obligations or expenses (including reasonable attorneys’ fees and costs) arising from or relating to (i) any negligence and/or willful misconduct of SandBagRental.com and/orits agents and employees, and (ii) any material breach by SandBagRental.com and/or its agents and employees of any representation, warranty, covenant, or provision in this Agreement.
7. Warranties. Except for any Special Product Warranty to which the Parties may agree, SandBagRental.com makes no express or implied warranties with respect to the Equipment. Some or all of the Equipment may have been previously used by other customers. Customer bears the entire risk regarding the quality and performance of Equipment selected by Customer, except as expressly provided otherwise in this Agreement. Statements relating to Services or Equipment which were made before execution of this Agreement are not warranties unless expressly restated in this Agreement.
D. General Provisions
1. Security. Customer must provide reasonable security to protect SandBagRental.com’s (a) personnel providing Services and (b) its Equipment while located on Customer’s site.
2. Photos for Marketing Purposes. SandBagRental.com may utilize event photos depicting Customer’s use of the equipment solely for SandBagRental.com’s corporate marketing, provided that SandBagRental.com will obtain Customer’s written consent, which Customer will not unreasonably withhold, before using any
photos that depict Customer.
3. Force Majeure. In the case of circumstances beyond the fault or control of either Party that
compromise the safety of patrons, staff, performers, and/or equipment such as extreme weather,power failures, labor or construction disputes, or civil unrest, or which otherwise make
performance of the provisions of this Agreement impossible or commercially impracticable,
Customer and Gallagher will cease work at any stage of setup, show, or strike at SandBagRental.com’s sole discretion, and neither Party will be liable to the other for damages resulting from any such delay,postponement, or stoppage.
4. Default and Remedies for Default. If Customer fails to make payment when due or fails to
perform any other obligation in this Agreement, and if Customer fails to cure such
non-compliance within seven (7) days after receiving SandBagRental.com’s notice of non-compliance, which failure will constitute an event of default (“Default”), then SandBagRental.com may, in its sole discretion, exercise any or all of the following remedies, with or without demand, notice, or legal process:
a. Recover from Customer all sums due;
b. Retain, free from any claim or defense by Customer, all payments SandBagRental.com receives before the event of Default;
SandBagRental.com Service and Equipment Agreement
c. Recover from Customer all documented out-of-pocket expenses SandBagRental.com incurs by reason ofCustomer’s Default;
d. Repossess all Equipment and recover from Customer all documented out-of-pocket expenses SandBagRental.com incurs in conjunction with repossession;
e. Recover from Customer all documented out-of-pocket expenses SandBagRental.com incurs in the course of protecting its rights following Customer’s Default, such as SandBagRental.com’s reasonable attorneys’ fees and court costs, and any expenses related to locating, repossessing, repairing, reconditioning, and/or storing Equipment.
5. Dispute Resolution. In the event of any dispute between SandBagRental.com and Customer arising from this Agreement, the Parties will first seek to resolve the dispute by mediation before resorting to litigation. Any litigated dispute between the Parties will apply California law in a court of competent jurisdiction located in Los Angeles County, CA, unless the parties mutually agree to employ the services of a private arbitrator, in which case the Commercial Arbitration Rules of the American Arbitration Association will apply. The non-prevailing party in any dispute will pay the prevailing party’s reasonable attorneys’ fees and costs incurred in enforcing and/or interpreting this Agreement.
6. Notices. All notices, communications or consents given by either Party to the other must be in writing and may be delivered by either personal delivery, email, U.S. Postal Service, or other overnight mail delivery service to the address(es) set forth in this paragraph. Personal delivery and delivery by email will be deemed to be immediate; delivery by overnight mail will be deemed delivered on the scheduled date of delivery; delivery by U.S. Postal Service will be deemed delivered four (4) business days following deposit of a postage prepaid envelope or package.
1038 E. Bastanchury Road, #241
Fullerton, CA 92835
Attention: Adam Swingler
7. Amendment. This Agreement may be amended only by a written document signed by authorized representatives of both Parties.
8. Waiver. No waiver of any provision of this Agreement will be valid or binding unless set forth in writing and executed by the Party against whom enforcement of the waiver is sought. No failure by a Party to exercise, and no delay by a Party in exercising, any right in this Agreement will operate as a waiver of such right, nor will any single or partial exercise by a Party of any right preclude any future exercise of that right, or any other right, by that Party.
9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, all of which together will constitute one document. Electronic execution and delivery of this Agreement will be considered valid, binding, and effective for all purposes.
10. Interpretation. This Agreement is the joint work product of representatives of each Party, each of whom had the opportunity to have this Agreement reviewed by counsel of their choice. Accordingly, in the event of ambiguities in this Agreement, no inference will be drawn against either Party, including the Party that drafted this Agreement in its final form. Other than terms defined in this Agreement or its exhibits, all words will be given their plain meaning; terms of art having a specialized meaning in the event staging industry will be construed in accordance with industry standards. The headings in this Agreement are for convenience only and do not limit or amplify its provisions.
11. Binding Effect; No Third-Party Beneficiaries. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns. Nothing in this Agreement is intended to confer any rights upon any person or entity other than the Parties and their respective successors and assigns.
12. Assignment. Upon notice to SandBagRental.com, Customer may assign its rights under this Agreement, in whole or part, to any entity which expressly agrees in writing to uphold Customer’s obligations under this Agreement. SandBagRental.com may not assign this Agreement or any of its rights or obligations without Customer’s prior written consent, which shall not be unreasonably withheld.
13. Severability. If any provision of this Agreement is determined to be invalid or unenforceable for any reason, either in whole or in part, then this Agreement must be reformed to give effect to the remaining provisions consistent with the intention of the Parties as expressed in this Agreement, to the fullest extent permitted by law.
14. Entire Agreement. This Agreement, including its exhibits and attachments, constitutes the entire agreement of the Parties, and supersedes any other agreements, either oral or written, between the Parties regarding the subject matter of this Agreement.
15. Authorization. This agreement will apply to the individual signing below, individually and, if performing as a group, to any entities, including partnerships, corporations, or other entities for which such individual purports to act.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, effective as of the
Key Productions d.b.a. SandBagRental.com