I. Purpose. (Hereinafter referred to as the “Agreement”) I,(hereinafter referred to as “Renter”), hereby agree to disclaim, waive and release Bay Area Baby Equipment Rentals LLC, its heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations affiliated in any way with Bay Area Baby Equipment Rentals LLC (hereinafter collectively referred to as “B.A.B.E. Rentals”), 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 B.A.B.E. Rentals by Renter (the products rented from B.A.B.E. Rentals by Renter are hereinafter collectively referred to as the “Equipment”). Without limiting the generality of the foregoing, B.A.B.E. Rentals 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 B.A.B.E. Rentals is not the manufacturer or supplier of the equipment or the representative of either, that B.A.B.E. Rentals is not required to enforce any manufacturer’s warranties on behalf of B.A.B.E. Rentals or Renter, and (iii) that B.A.B.E. Rentals rents the equipment to Renter “As Is”, without warranty or representation either express or implied, and B.A.B.E. Rentals 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 B.A.B.E. Rentals and the Renter are to be borne by the Renter.
Renter further agrees to indemnify and hold harmless B.A.B.E. Rentals 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.
II. 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 California. The federal and state courts within the State of California 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 California, and (ii) service of process being made upon him by registered mail sent to the address set forth at the beginning of this Agreement.
III. Entire Agreement; Amendment; No Waiver. This Agreement 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.
IV. 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. V. Nonperformance of a 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.
VI. 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.
VII. Opportunity to Review. Each party has had the opportunity to review and revise this Agreement, and the opportunity to have the Agreement reviewed by legal counsel. This agreement shall be construed and interpreted as to have been drafted by both parties collectively.
VIII. 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 B.A.B.E. Rentals’ 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.
IX. 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.
X. 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. The arbitrators shall meet in the city of San Jose, in the State of California unless it is mutually agreed by the parties to meet elsewhere.
XI. 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.
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 B.A.B.E. Rentals to rent the Equipment to Renter. Renter acknowledges that Renter is precluded forever from any claims against B.A.B.E. Rentals arising out of the rental.