Last Modified: August 24th, 2023
Rently Masters Services Agreement (together with the applicable Order Form (defined below), this “Agreement”) is by and between Consumer 2.0 Inc. d/b/a Rently, a California corporation with a place of business at 6300 Wilshire Blvd, Suite 620, Los Angeles, California 90048, (“Rently”) and the client (“Client”) identified on the Rently order form into which this Rently Master Services Agreement is incorporated (the “Order Form”). Client and Rently are each individually a “Party” and collectively the “Parties”. This Agreement is entered into as of the effective date set forth in the Order Form (the “Effective Date”). This Agreement sets forth the terms and conditions under which Rently will sell Hardware and provide SaaS Services and Professional Services (as defined below) to Client, each Party’s responsibilities related thereto, and the fees related thereto. The Parties agree as follows:
1. SAAS SERVICE AND PROFESSIONAL SERVICES.
a. SaaS Service. Subject to Client’s compliance with these terms and conditions, Rently grants to Client and its Users web-based access to the software-as-a-service platform specified in the Order Form (“SaaS Service”) for use for Client’s own internal business purposes during the Term of this Agreement. Rently agrees Client has a non-exclusive and non-transferable right to make the SaaS Service available to residents solely at the communities identified in the Order Form (“Authorized Properties”). “Users” means the individuals authorized by Client to use the SaaS Service, subject to the terms of this Agreement. Where applicable, the number of Users authorized to use the SaaS Service will be set forth in the Order Form. Rently reserves the right, in its sole discretion, to update or modify content, functionality, or user interface of the SaaS Service at any time.
b. Professional Services. Subject to the terms and conditions of this Agreement, Rently agrees to perform the professional services described in the Order Form (“Professional Services”) during the Term of this Agreement. The SaaS Service and Professional Services are, collectively, the “Services.”
c. Use Restrictions. Client will not directly or indirectly: (i) use the SaaS Service outside the permitted scope set forth in Section 1(a); (ii) use or access the SaaS Service in violation of any Law (defined below); (iii) sell, resell, license, lease, transfer, redistribute, assign or otherwise commercially exploit or make the SaaS Service available to any third party; (iv) send, store, submit or upload libelous, unlawful or tortious material, malicious or harmful code on or to the SaaS Service; (v) interfere with or disrupt the integrity or performance of the cloud environment where the SaaS Service is deployed; (vi) attempt to circumvent security restrictions or protocols for the cloud environment where the SaaS Service is deployed; (vii) duplicate or reverse engineer the SaaS Service, in whole or in part; (viii) disclose the results of any benchmarking test; or (ix) remove or modify any proprietary markings or notices on the Services or other materials delivered by Rently in the performance of this Agreement. Client will cause all Users and all Authorized Properties (where applicable) to comply with all restrictions and obligations of Client in this Section 1(c). “Law(s)” means all laws, statutes, codes, rules, regulations, and other pronouncement having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision, including those promulgated, interpreted or enforced by any governmental or regulatory authority, and any order of a court or governmental agency of competent jurisdiction in effect as of the Effective Date and as they may be amended from time to time.
d. Authorized Properties. Where Authorized Properties have been expressly included in the Order Form, Client may permit access to and use of the SaaS Service by Authorized Properties on the same terms and conditions as Client herein, and shall cause each Authorized Property to comply with all terms and conditions in this Agreement concerning the SaaS Service. Any breach of these terms by any Authorized Property shall be deemed a breach of this Agreement by Client. Client and each Authorized Property shall agree in writing that: (i) such Authorized Property shall comply with the terms and conditions of this Agreement concerning the SaaS Service, (ii) Rently is an irrevocable third party beneficiary to such agreement, and (iii) to the extent that Authorized Property has any obligations and/or restrictions in this Agreement, Client will cause Authorized Property to comply with such terms, conditions, obligations, and/or restrictions. Upon Rently’s request, Client shall provide a copy of the written terms between Client and Authorized Property evidencing compliance with this Section 1(d).
e. Call Center Services. Clients who enroll in Call Center Services agree to the Call Center Statement of Work set forth in the Order Form.
2. PURCHASE AND SALE OF HARDWARE.
a. Purchase and Sale. During the Term of this Agreement, Client shall purchase from Rently, and Rently shall sell to Client, the hardware set forth in the Order Form (“Hardware”) in the quantities set forth in POs (defined below) and at the prices set forth in the Order Form. Rently may, from time to time with or without notice, add or remove any Hardware and/or related SKUs to or from the Order Form. Notwithstanding anything to the contrary herein or elsewhere, Rently may change the Hardware prices set forth in the Order Form from time to time during the Term of this Agreement by delivery of notice to Client.
b. Terms of Agreement Prevail Over Client’s PO. The Parties intend for the express terms and conditions contained in this Agreement (including the Order Form hereto), and the PO Terms (defined herein) contained in the applicable PO to exclusively govern and control each of the Parties’ respective rights and obligations regarding the subject matter of this Agreement, exclusive of all other terms and conditions. “PO Terms” means the following terms specified in the applicable PO: (a) a list of the Hardware to be purchased by Client; (b) the quantity of Hardware ordered; (c) the requested delivery date; (d) the billing address; and (e) the delivery location. Any time stated for delivery is an estimate only. PO Terms exclude any general terms or conditions provided by Client in any PO, and any variations made to this Agreement’s terms and conditions by Client in any PO are void and have no effect. Without limiting the foregoing, any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on Rently unless expressly approved in a written amendment to this Agreement signed by authorized representatives of both Parties.
3. HARDWARE ORDERING PROCEDURE. “PO” means Client’s purchase order issued to Rently and accepted by Rently that contains PO Terms. Client shall issue to Rently POs in written form. Client’s issuance of a PO to Rently is Client’s offer to purchase Hardware pursuant only to these terms and conditions, the Order Form, and the PO Terms. Client shall be obligated to purchase from Rently quantities of Hardware specified in a PO. Rently accepts a PO by confirming the order in writing by an authorized representative or by delivering the applicable Hardware to Client, whichever occurs first. Rently may reject a PO for any reason or no reason in its sole discretion. Rently has no obligation to accept any PO or offer to purchase Hardware issued by Client.
4. HARDWARE SHIPMENT, DELIVERY, ACCEPTANCE AND INSPECTION.
a. Shipment. Rently shall select the method of shipment of and the carrier for the Hardware. Rently may, in its sole discretion, without liability or penalty, make partial shipments of Hardware to Client. Rently shall deliver the Hardware to the delivery location set forth in the applicable PO and the Order Form, using Rently’s standard methods for packaging and shipping such Hardware. Any time quoted for delivery is an estimate only. No delay in the shipment or delivery of any Hardware shall be deemed a breach of this Agreement by Rently or relieve Client of its obligations under this Agreement.
b. Transfer of Title and Risk of Loss. Title to Hardware shipped under any PO passes to Client upon Client’s acceptance of the Hardware in accordance with Section 4(c). Risk of loss passes to Client upon Rently making Hardware available to the carrier for shipment.
c. Inspection. Client shall inspect Hardware received under this Agreement within five (5) days of receipt of such Hardware (“Inspection Period”) and either accept or, only if any such Hardware are Nonconforming Hardware, reject such Hardware. “Nonconforming Hardware” means Hardware that: (a) does not conform to the Hardware type listed in the applicable PO; (b) materially exceeds the quantity of Hardware listed in the applicable PO; or (c) does not conform to the Hardware Warranty (defined below). Client will be deemed to have accepted Hardware unless it provides Rently with written notice of any Nonconforming Hardware within five (5) days following the Inspection Period. Subject only to express warranties set forth in this Agreement, all defects and nonconformities that are not so specified will be deemed waived by Client, such Hardware shall be deemed to have been accepted by Client, and no attempted revocation of acceptance will be effective. If Client timely notifies Rently of any Nonconforming Hardware within five (5) days following the Inspection Period, Rently shall determine, in its reasonable discretion, whether the Hardware are Nonconforming Hardware. If Rently determines that such Hardware are Nonconforming Hardware, Rently shall, in its sole discretion, either replace such Nonconforming Hardware with conforming Hardware or refund to Client such amount paid by Client to Rently for such Nonconforming Hardware returned by Client to Rently. Client shall ship all Nonconforming Hardware to a location as Rently may instruct Client. If Rently exercises its option to replace Nonconforming Hardware, Rently shall ship the replacement Hardware to the delivery location set forth in the applicable PO. THE REMEDIES SET FORTH IN THIS SECTION 4(c) ARE CLIENT’S EXCLUSIVE REMEDIES, AND RENTLY’S ENTIRE LIABILITY, FOR THE DELIVERY OF NONCONFORMING HARDWARE, SUBJECT TO CLIENT’S RIGHTS UNDER SECTION 11 WITH RESPECT TO ANY SUCH HARDWARE FOR WHICH CLIENT HAS ACCEPTED DELIVERY UNDER THIS SECTION 4(c).
d. Limited Right of Return. Except as expressly provided under Section 4(c) and Section 11, Client has no right to return Hardware shipped to Client pursuant to this Agreement.
5. CLIENT OBLIGATIONS.
a. User Accounts. Each User that accesses the SaaS Service must be issued a separate user account with a unique ID and password by Rently and/or Client (“User Accounts”). Client shall ensure that passwords associated with User Accounts remain confidential and secure and shall not allow multiple users to utilize the same User Account. Client shall not provide, or provide access to, a User Account to any third party without Rently’s prior written consent. Once Client revokes a User’s authorization to access the SaaS Service, Client shall immediately notify Rently.
b. Users. Client is responsible for Users’ compliance with this Agreement and for access to Client Data (defined below) or the SaaS Service by other persons as a result of Client’s failure to use reasonable precautions to secure its own systems or credentials for access to the SaaS Service. Client will: (i) use its best efforts to prevent unauthorized access to or use of the SaaS Service, and notify Rently immediately of any unauthorized access or use; (ii) cooperate with any reasonable investigation by Rently of any outage, security problem or suspected breach of this Agreement; and (iii) comply with all Rently instructions relating to Client’s access to or use of the SaaS Service, including instructions specifying specific windows of time for certain types of Client Data uploading. Client shall be responsible for: (a) all acts occurring with its Authorized Properties and Users’ SaaS Service accounts; (b) ensuring that its, and its Authorized Properties, employees receive adequate disclosures of the terms and conditions governing such employees’ use of Services; and (c) all transmissions initiated by Users during use of Services. Client will cause all Users to comply at all times with the terms and conditions of this Agreement, the Order Form, and any standard terms and conditions applicable to the use of the SaaS Service that may be made available to Users from time to time. Client is responsible and liable for any breach by any User of any obligation, representation or warranty of Client in this Agreement, the Order Form or any standard terms and conditions applicable to the use of the SaaS Service.
c. Client System. Client, at its sole cost and expense, shall be responsible to purchase or otherwise obtain the computer systems, devices, telecommunications network, gateway and internet access equipment and services necessary for Client to access the SaaS Service (“Client System”). Client is responsible for all maintenance and required upgrades of its own Client System.
d. Client Data. “Client Data” means any and all electronic data or information that is submitted, uploaded, transmitted or entered to or into the SaaS Service by Client, Authorized Properties, or any User. Client is responsible for timely providing all data and information of Client and Authorized Properties, including Client Data, and assistance required by Rently to provide the Services. Client acknowledges that Rently’s ability to provide the Services in accordance with this Agreement and the Order Form, including the agreed pricing and delivery models, are contingent upon the accuracy and completeness of information and data provided by Client, and its Authorized Properties, and all Client Data, as well as Client’s cooperation and timely performance of Client’s obligations.
e. Laws. Client will at all times comply with all Laws applicable to Client.
6. INTELLECTUAL PROPERTY.
a. Confidential Information. Each Party acknowledges that the Confidential Information (defined below) of the other Party, all related trademarks, logos, other names or markings identifying the Confidential Information, and other intellectual property rights of the other Party, are and shall remain the exclusive property of the other Party, whether or not protected under applicable intellectual or property Laws.
b. Rently Services. Rently reserves all rights not expressly granted to Client in this Agreement, including all rights in and to all Services and any work of authorship, invention, documentation, deliverables, work product, work processes or development created by or on behalf of Rently. Client agrees that Rently shall own all intellectual property rights in and to any copy, translation, modification or adaptation of the SaaS Service or any work of authorship, invention, documentation, deliverables, work product, work processes or development based thereon, which may be created by or for Rently, or by or for Client. Client hereby irrevocably assigns all of its right, title and interest in and to such items, including all intellectual property rights, to Rently. Client agrees not to take any action that interferes with intellectual property or other proprietary rights of Rently or attempt to copyright or patent any portion of Rently’s property or register or attempt to register any trademark, service mark, trade name, or company name which is identical or confusingly similar to said marks, names, or markings of Rently.
e. Feedback. If Client, Authorized Properties, or any of its or their employees or contractors sends or transmits any communications or materials to Rently through any means, suggesting or recommending changes to Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Rently is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Rently on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Rently is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Rently is not required to use any Feedback.
a. Service Fees. Client shall pay to Rently the fees and Rently Expenses (defined below) as set forth in the Order Form for Services in United States dollars, without deduction or set-off (collectively, “Service Fees”) at the times identified in the Order Form (or if none, within thirty (30) days of the invoice date). Unless otherwise set forth in the Order Form, Service Fees shall commence upon the Effective Date. Rently reserves the right to increases Service Fees annually; provided however that such increase will be capped at the greater of: (i) five percent (5%), or (ii) the Consumer Price Index for Los Angeles, Anaheim, Riverside – All Urban Consumers – All Items – U.S. City Average (“CPI”) changed in the year immediately preceding the date of the applicable Service Fee increase. Rently Expenses shall be payable monthly in arrears for Rently Expenses incurred in the applicable billing period. “Rently Expenses” means all reasonable and necessary expenses, which Rently may incur in rendering the Services, including travel time and out-of-pocket expenses relating to air fares, ground transportation, and lodging, plus communication costs which are incurred by Rently in the fulfillment of this Agreement.
b. Hardware Fees. Client shall pay to Rently the prices and total fees for Rently Hardware as set forth in the Order Form in United States Dollars, without deduction or set-off, for each applicable PO (collectively, “Hardware Fees”) at the times identified in the Order Form (or if none, within thirty (30) days of the invoice date).
c. Shipping; Taxes. Client shall pay for all shipping and handling charges and insurance costs related to Rently’s shipping or delivery of Hardware under this Agreement, including Rently’s standard shipping and handling fees, and all costs and expenses related to expedited shipping of Hardware requested by Client. In addition, all prices and all other fees owed by Client under this Agreement, and as set forth in the Order Form are exclusive of, and Client is solely responsible for, and shall pay all Taxes; provided, however, that Client shall not be responsible for any Taxes imposed on Rently’s income. “Taxes” means any and all present and future sales, use, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any governmental authority, together with any interest or penalties imposed thereon.
d. Late Payment. Any late payment of Service Fees or Hardware Fees shall accrue interest at the rate of 1.5% per month or the highest allowable legal rate, whichever is less, commencing on the date when such payment was due.
8. TERM & TERMINATION.
a. Term. This Agreement shall be in effect from the Effective Date and shall continue for the Term set forth in the Order Form, unless and until earlier terminated in accordance with the terms of this Agreement (“Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for successive one year renewal terms (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party delivers written notice of nonrenewal to the other Party at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term or earlier terminated in accordance with this Agreement.
b. Termination. Either Party may immediately terminate this Agreement by giving written notice to the other Party, if the other Party (i) materially breaches any obligations under this Agreement and fails to cure such breach within thirty (30) days after the non-breaching Party demands such cure, (ii) attempts to assign this Agreement in violation of Section 19 (iii) becomes insolvent or assigns all, or substantially all, of its assets or business for the benefit of creditors, or (iv) resolves to wind up business, dissolve, or liquidate. Further, for Clients that own multi-family apartment complexes, if Client sells or otherwise divests in a multi-family apartment complex that utilizes Hardware or Services, Client may terminate this Agreement or the respective Order Form only with respect to such sold or divested multi-family apartment complex upon delivery of no less than sixty (60) days’ prior written notice to Rently.
c. Effect of Termination. Upon termination or expiration of this Agreement in accordance with this Agreement: (a) Client and Authorized Properties shall immediately cease using the Services, (b) Rently’s obligation to provide Services shall terminate immediately, (c) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party, (d) each Party shall certify in writing to the other Party that it has returned or destroyed such Confidential Information, and (e) Client shall pay all Service Fees and Hardware Fees incurred as of the date of termination or expiration.
d. No Termination for Convenience. Client acknowledges and agrees there is no termination for convenience right under this Agreement, and any termination by Client other than as expressly permitted by the terms and conditions of this Agreement shall result in Rently’s right to accelerate Client’s obligation to pay all Hardware Fees and Services Fees for the remainder of the Term of this Agreement immediately upon written notice from Rently to Client.
e. Suspension. Rently may, on written notice, suspend access to the SaaS Service without liability if: (i) Rently reasonably believes that the SaaS Service is being used in violation of this Agreement; (ii) Client does not cooperate with reasonable investigation by Rently of any suspected violation of this Agreement; (iii) the SaaS Service or Client Data are accessed or manipulated by a third party without consent of either Party; (iv) Rently is required by Law to suspend access to the SaaS Service; (v) if any invoiced amounts remain unpaid by Client for more than ten (10) calendar days past the due date; or (vi) there is another event for which Rently reasonably believes that the suspension of access to the SaaS Service is necessary to protect the cloud environment in which Client’s instance of the SaaS Service is deployed.
f. Survival. The following Sections shall survive termination or expiration (where reference is to a Section, all subsections are deemed to be included): 1(d), 2(b), 4(c), 4(d), 5, 6, 7, 8(c), 8(e), 8(f), 9, 11(b), 11(d), 11(e), 11(f), 11(g), 12, 13, 14, 15, 16, 17, 18, 19, and any other provisions which by their nature should survive such termination or expiration.
9. CONFIDENTIALITY. “Confidential Information” means the nonpublic or proprietary business, technical or financial information disclosed or made available to one Party (“Receiving Party”) by or on behalf of the other Party (“Disclosing Party”) pursuant to this Agreement and the Order Form and includes all information marked by the Disclosing Party as confidential or proprietary and any other information, whether written or oral and whether disclosed or made available before or during the Term of this Agreement, that the Receiving Party should reasonably understand is confidential or proprietary to the Disclosing Party. Notwithstanding anything to the contrary in this Section 9, Confidential Information shall not include information which: (i) was already known to Receiving Party at the time of disclosure by Disclosing Party, and Receiving Party was under no obligation of confidentiality with respect to such information; (ii) is disclosed to Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of Receiving Party has become, generally available to the public; (iv) is independently developed by Receiving Party without access to, reference or use of, Disclosing Party’s Confidential Information; or (v) Client Data. Rently’s obligations with respect to Client Data are set forth in Section 10. Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party, except as permitted in this Section 9. Receiving Party will protect and keep confidential the Disclosing Party’s Confidential Information using the same degree of care that the Receiving Party uses to protect its own nonpublic or proprietary business, technical or financial information of similar importance, but in no event less than a reasonable degree of care. Receiving Party will not use Disclosing Party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement or as otherwise expressly permitted in this Agreement. The disclosure of Confidential Information pursuant to this Agreement is not intended in any way to transfer or grant any right, title or interest in or to such Confidential Information to the Receiving Party unless otherwise expressly indicated in this Agreement or by the Disclosing Party in writing. Receiving Party may disclose the Confidential Information of Disclosing Party only to those of its officers, directors, employees, agents, representatives and contractors (“Representatives”) who have a legitimate need to know such Confidential Information consistent with the purposes of this Agreement and who have agreed, either as a condition of employment, representation or in a written agreement, to be bound by terms and conditions substantially as protective as the confidentiality terms and conditions applicable to Receiving Party under this Section 9. Receiving Party shall be responsible and liable for any breach by its Representatives of the obligations of Receiving Party set forth in this Section 9. Receiving Party shall be allowed to disclose Confidential Information of Disclosing Party to the extent that such disclosure is (i) approved in writing by Disclosing Party, (ii) necessary for Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by Law or by the order of a court or similar judicial or administrative body, provided that, to the extent it is legally permitted to do so, Receiving Party notifies Disclosing Party of such required disclosure promptly and in writing and cooperates with Disclosing Party at Disclosing Party’s reasonable request and expense in any lawful action to contest or limit the scope of such required disclosure.
a. Mutual Warranties. Each Party hereby represents and warrants to the other Party that it/its: (i) is an entity duly formed, organized and existing in good standing in such Party’s state of formation; (ii) has full power and all requisite legal and entity authority to enter into this Agreement; and (iii) execution, delivery, and performance of this Agreement shall not constitute (a) a violation of any judgment, order, or decree; (b) a material default under any material contract by which such Party or any of its material assets are bound; or (c) an event that would, with notice or lapse of time, or both, constitute such a default.
b. Representations and Warranties by Client. Client represents and warrants to Rently that as of the Effective Date and at all times thereafter Client has obtained and will maintain all rights, licenses, consents, permits, approvals and authorizations necessary to make available to Rently (i) Client Data, to the extent provided by Client as necessary for Rently to perform the Services under this Agreement (“Client Consents”). “Affiliate” means, with respect to a party, any entity or individual that directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of the Affiliate definition, an entity or individual “controls” an entity if it has the power to direct the management and policies of the entity, through ownership of more than 50% of the voting securities of an entity, representation on its board of directors or other governing body, or by contract.
c. Limited Hardware Warranty. Subject to the provisions of Section 11(d) through Section 11(g) (inclusive), Rently warrants to Client that: (a) for a period of one (1) year from the date of shipment of Hardware (“Warranty Period“), such Hardware will be free from significant defects in material and workmanship; and (b) Client will receive good and valid title to all Hardware, free and clear of all encumbrances and liens of any kind, subject to the security interest described in this Agreement (“Hardware Warranty“).
d. Hardware Warranty Limitations. The Hardware Warranty does not apply to any Hardware that: (a) 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 Rently; (b) has been reconstructed, repaired or altered by any party other than Rently; (c) has been used with any third-party products, hardware or product that has not been previously approved in writing by Rently; or (d) is damaged or destroyed due to a force majeure event.
e. Client’s Exclusive Remedy for Defective Hardware. Notwithstanding any other provision of this Agreement, this Section 11(e) contains Client’s sole and exclusive remedy for Defective Hardware. “Defective Hardware” means Hardware that does not conform to the Hardware Warranty. Client’s remedies under this Section 11(e) are conditioned upon Client’s compliance with its obligations under Section 11(e)(a) and Section 11(e)(b) below. During the Warranty Period, with respect to any allegedly Defective Hardware: (a) Client shall notify Rently, in writing, of any alleged claim or defect before the expiration of the applicable Warranty Period; (b) Client shall ship such allegedly Defective Hardware to Rently’s facility specified by Rently for inspection and testing by Rently; (c) if Rently’s inspection and testing reveals, to Rently’s satisfaction, that such Hardware are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 11(d) above, subject to Section 11(e)(a) and Section 11(e)(b), Rently shall in its sole discretion and at its expense, repair or replace such Defective Hardware; and (d) Rently shall ship the repaired or replaced Hardware to a location designated by Client. Client has no right to return for repair, replacement, credit or refund any Hardware except as set forth in this Section 11(e) (or if otherwise applicable, Section 4(c)). In no event shall Client reconstruct, repair, alter or replace any Hardware, in whole or in part, either itself or by or through any third party. THIS SECTION 11(e) SETS FORTH CLIENT’S SOLE AND EXCLUSIVE REMEDY AND RENTLY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 11(e).
f. DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 11, (A) NEITHER RENTLY NOR ANY PERSON ON RENTLY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER RELATING TO HARDWARE OR SERVICES, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR COMPLIANCE WITH LAW, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY RENTLY, AND (B) CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY RENTLY, OR ANY OTHER PERSON ON RENTLY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11.
g. Third-Party Products. Client acknowledges that Hardware and Services provided under this Agreement may be manufactured or provided, in whole or in part, by a third party or contain, be contained in, incorporated into, attached to or packaged together with products, goods, services, software, materials or technology manufactured or provided by a third party. All such products, goods, services, software, materials and technology (including, Hardware) manufactured or provided by a third party or otherwise not proprietary to Rently are “3P Products”. 3P Products are not covered by any warranty or representation in this Section 11. To the extent available and permitted by such third party and at no cost to Rently, Rently will pass through any manufacturer/publisher/supplier’s written warranties associated with 3P Products purchased by Client and reasonably assist Client with any 3P Products warranty claims. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, RENTLY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN, TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO 3P PRODUCTS, AND RENTLY HEREBY DISCLAIMS ALL LIABILITY, WARRANTIES AND REPRESENTATIONS RELATED TO THIRD-PARTY PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS-IS”.
h. Damaged or Lost Hardware. If Client returns damaged Hardware to Rently other than pursuant to a valid warranty claim under this Section 11, Client will pay for replacement of Rently hardware. Lost lockboxes are billed at a rate of $199 per lockbox. Severely damaged lockboxes returned may incur an additional fee.
12. INDEMNIFICATION. Client will indemnify, defend and hold harmless Rently, its Affiliates, and its and their respective directors, officers, employees, agents, contractors, subcontractors, representatives, successors and assigns from and against any and all claims, actions, causes of action, litigation, demands, proceedings, subpoenas, damages, fines, penalties, deficiencies, losses, liabilities, costs, settlements, judgements and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) based on, arising out of or related to: (i) Client’s actual or alleged breach of this Agreement or the respective Order Form; (ii) damages based on the use of the Hardware or Services in a manner not contemplated in this Agreement; (iii) Client Data; or (iv) Client’s actual or alleged negligence, fraud or violation of any Law. Client will promptly, and in no event less than ten (10) days before the date on which a response to such claim is due, assume and diligently pursue the defense and settlement of such claim, engaging attorneys with appropriate expertise to handle and defend the same, at Client’s sole cost and expense. Rently may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves a remedy other than the payment of money by Client will be entered into without the consent of Rently. If Client fails to timely assume, or ceases to diligently pursue, such defense, Rently may defend or settle the claim in such manner as it may deem appropriate at the cost of Client, with sacrificing any of its rights or remedies under this section.
13. LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR CLIENT’S BREACH OF SECTION 1(c) (USE RESTRICTIONS) OR CLIENT’S PAYMENT OBLIGATIONS OR FAILURE TO PAY ANY HARDWARE FEES OR SERVICE FEES, IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES, OR ANY THIRD PARTY (INCLUDING AUTHORIZED PROPERTIES) FOR LOST PROFITS, LOSS OF DATA, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE HARDWARE OR SERVICES, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY OR ITS RESPECTIVE AFFILIATES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR CLIENT’S BREACH OF SECTION 1(c) (USE RESTRICTIONS) OR CLIENT’S PAYMENT OBLIGATIONS OR FAILURE TO PAY ANY HARDWARE FEES OR SERVICE FEES, THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED THE SERVICE FEES ACTUALLY PAID BY CLIENT TO RENTLY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE ASSOCIATED WITH THE FIRST CLAIM MADE BY A PARTY UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS PROVISION SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CLIENT UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
14. AUDIT RIGHTS. During the Term of this Agreement and for twelve (12) months thereafter, Rently may audit Client’s use of Services to ensure Client’s compliance with this Agreement upon reasonable prior written notice. Upon such notice, Client will provide a Rently representative with reasonable access to all relevant records during regular business hours.
15. FORCE MAJEURE. Any delay in or failure of performance by Rently under this Agreement shall not be considered a breach of this Agreement, and shall be excused, to the extent caused by any occurrence beyond the reasonable control of Rently.
16. COMPLIANCE WITH EXPORT CONTROLS. Client will not export, re-export, divert, transfer, or disclose, directly or indirectly, or allow the use of, any SaaS Service or Rently documentation, or any direct product thereof in violation of applicable United States export control requirements.
17. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL; INJUNCTIVE RELIEF. This Agreement shall be governed by and interpreted under the laws of the State of California without regard to any provisions of California law which would require the application of the substantive law of another jurisdiction. Each Party hereby irrevocably consents to the exclusive jurisdiction of the federal, state, and local courts serving Los Angeles, California to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such controversy or claim. Except to the extent expressly required by Law, neither the United Nations Convention on Contracts for the International Sale of Goods 1980, nor the Uniform Computer Information Transactions Act, apply to this Agreement and are hereby disclaimed. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. The Parties agree that a breach of Section 1(c), Section 6 or Section 9 would result in irreparable and continuing damage for which there will be no adequate remedy at law, and each Party will be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.
18. AMENDMENTS. Rently may amend this Agreement from time to time by posting an amended version at its website or sending Client notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Client first gives Rently written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Client’s next Renewal Term following the Proposed Amendment Date. Client’s provision of a PO or continued use of the SaaS Service following the effective date of an amendment will confirm Client’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party.
19. MISCELLANEOUS. All references to and mentions of the word “including” or the phrase “e.g.” means “including, without limitation.” Unless context unambiguously requires otherwise, “or” is not exclusive and includes “and.” The terms and conditions of this Agreement shall not be construed in favor of or against either Party by reason of the extent to which either Party or its professional advisors participated in the preparation or drafting of this Agreement. The section and subsection headings used herein are for reference and convenience only and shall not enter into the interpretation thereof. Except for indemnified parties in Section 12, no person or entity other than the Parties hereto, and their respective successors and/or assigns, shall have any right, remedies, obligations or liabilities under the terms of this Agreement. Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and in English to the address set forth in the Order Form, provided by one or more of the following means and deemed to have been duly given (i) if delivered personally, when received; (ii) if delivered by certified or registered mail (postage prepaid and return receipt requested), when received; (iii) if transmitted by facsimile (to those for whom a facsimile number is set forth in the Order Form), on the date of receipt of the transmission confirmed by receipt of a transmittal confirmation; or (iv) if delivered by courier service, on the third business day following the date of deposit with such courier service. Either Party may change its address by giving notice as provided herein. All provisions of this Agreement and the Order Form shall be binding upon, inure to the benefit of, and be enforceable by and against, the respective successors and permitted assigns of Rently and Client. Client may not assign, pledge, delegate or otherwise transfer (whether by operation of law, acquisition or sale of stock or assets, merger, consolidation, transfer of control or otherwise) this Agreement or any rights or obligations under this Agreement without the prior written consent of Rently, such consent to be exercised in the sole discretion of Rently, and any purported assignment, pledge, delegation or transfer in violation of this Section 19 is null and void. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. If a court of competent jurisdiction holds any provision, or part of any provision, of this Agreement to be illegal or invalid, the provision, or the affected part of such provision, shall be null and void and deemed automatically severed from this Agreement. Any such holding shall not affect the legality or validity of the remaining provisions or remaining parts or unaffected provisions of this Agreement. The relationship between the Parties is that of independent contractors only, and nothing in this Agreement shall be interpreted or construed to create a partnership, joint venture, employer-employee, or agency relationship, or any other relationship between the Parties, other than that of independent contractors. Neither Party shall have the power to obligate the other Party in any manner whatsoever unless expressly provided in this Agreement. In the event of any direct conflict between the terms of the Order Form and the terms of this Agreement, the terms of the Order Form will control. This Agreement may be executed in counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. This Agreement, and the Order Form, together with the PO Terms constitutes the entire agreement between the Parties regarding this matter, and they supersede all prior discussions or agreements related to the same. In the event of any direct conflict between the terms of the Order Form and the terms of this Agreement, the terms of the Order Form will control.