Terms of Rental Agreement
This Rental Agreement (the “Agreement”) is entered into as of the date of this transaction by and between The Living Christmas Co. LLC, a California limited liability company (“Lessor”), and Client (“Lessee”). The Agreement shall include and be subject to the following terms and conditions:
1. The Plan. Specifications of the tree being leased,pricing and term are detailed on the Order Summary and made part of this Agreement. Horticultural service is not included in this Agreement.
2. Changes. In the event actual size of items delivered under this Agreement differs from the Order Summary, the lease charge shall be adjusted accordingly by the Lessor.
3. Time of Delivery. Lessor shall use its reasonable best efforts to deliver the tree at the agreed upon time of delivery. Notwithstanding the foregoing, Lessor shall not be liable for any loss, cost or expense suffered by Lessee by reason of any delay in delivery. For purposes of this Agreement, Lessee shall be deemed to have taken “delivery” of the tree from the time the tree is set aside from Lessor’s general inventory for Lessee’s use. Lessee shall be deemed to have
“returned” the tree only at such time as Lessor shall have picked-up the tree.
4. Delivery. Delivery of the tree by Lessor shall be conditioned upon free access being available to Lessor’s agent’s vehicles to the address of delivery. If delivery of the tree is not possible in the opinion of Lessor, then Lessor reserves the right to cancel the order without penalty. The tree shall be unloaded onto the driveway. Lessee does not hold Lessor, or its agents, responsible for damage to driveway as a result of delivery of the tree. If Lessor’s agent assists Lessee with placement of the tree in any location other than the driveway, such assistance is provided as a courtesy. Lessor is not responsible for any damage to Lessee’s property or to the tree resulting from moving the tree from the driveway to any other location.
5. Use of Property. Lessee shall use the tree in accordance with Lessor’s recommended use and shall neither abuse or misuse the tree nor use or store the tree in any manner or at any location which will subject it to abnormal or hazardous conditions or risk. Lessee shall take all necessary precautions during the use of the tree to protect the tree from injury or damage. Lessee agrees to water tree as necessary to maintain optimal health; to maintain the tree in an optimal
environment; and, to decorate the tree with care.
6. Loss of Tree. Lessee is responsible for the care of the tree during the term of the Agreement. Lessee shall inspect the tree immediately on delivery and shall notify Lessor at that time if Lessee determines that the tree is damaged at that time. From delivery of the tree to the Lessee until its return to Lessor, Lessee shall bear any and all risk of loss and/or damage to the tree. If the tree is damaged, Lessee shall be liable for the purchase price of the tree, which is as follows:
4-5 feet -$79.00
5-6 feet – $129.00
6-7 feet- $169.00
Such damage includes, but is not limited to, loss of the tree due to one or more of the following reasons:
b. Accidental or malicious damage to tree, its roots or its container;
c. Exposure to heat, including, but not limited to, heat damage from lights or exposure to a heating duct or fireplace;
e. tinsel or flock;
f. Fire, theft, or mysterious disappearance
g. Use of cleaning liquids, paints, chemicals, or other gas-producing agents that introduce toxins into the surrounding air in sufficient quantities to be harmful to the tree or its roots.
7. Indemnification. Lessee agrees to defend, indemnify and hold Lessor harmless against any claim, liability loss, costs, damages, expenses, or demands arising directly or indirectly out of, or in connection with, the use of the tree rented from Lessor by Lessee, its agents, servants, contractors, representatives, guests, invitees, or customers. Lessor is not responsible for any damage to Lessee’s property or person resulting from Lessee’s use of the tree.
8. Payment Obligation. Lessor accepts credit cards as forms of payment. Lessor may obtain a pre-approval from the credit card company for an amount up to the amount of the order. Billing to your credit card occurs at the time of rental. Lessor is not responsible for pricing, typographical, or other errors in any offer by Lessor and reserves the right to cancel any orders resulting from such errors.
9. Security Deposit. Lessor may require Lessee to maintain a security deposit in an amount equal to the purchase price of the tree. Said security deposit shall be final. Lessee and/or charge card holder waive all rights to dispute charges with credit/charge card company and agree to resolve disputes as if the charges were made as cash payments. In the event that thecredit/charge company fails to honor Lessor’s charges for any reason, or if the credit charge or credit available shall be insufficient to cover the claims of the Lessor under this Agreement, Lessee shall remain absolutely liable for the full amount of claims. Security deposits will be released only after inspection of tree for damage or loss.
10. Title and Ownership. This Agreement constitutes a lease, not a sale, of a tree. No part of the rental payments made under this Agreement shall be deemed payment towards the purchase of the Tree. Lessee specifically acknowledges the Lessor’s superior title and ownership of the tree and must keep the tree free of all liens, levies and encumbrances.
11. Surrender. Upon the expiration of this Agreement, Lessee shall return the tree to Lessor in the same condition as at the delivery to Lessee, ordinary growth excepted.
12. Photos. Lessee may submit photos of the tree to Lessor. Once submitted, all photos become the property of Lessor and may be displayed or used by Lessor for any purpose. Lessor will not be able to return photos once submitted
13. Miscellaneous Provisions.
a. Lessor hall have the right to inspect the tree or observe its use at all reasonable times and upon notice to the Lessee
b. If any provision in this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will in no way be affected or impaired,and if possible, any invalid, illegal, or unenforceable provision will be limited or interpreted to the minimum extent necessary to cure its defect.
c.If Lessee fails to return the tree by the return date specified, Lessee is liable for the purchase price of the tree.
d. This Agreement shall be binding upon the parties, their successors andassigns.
e. This Agreement shall be governed by the laws of the state Californian
f. Should a legal dispute arise as a result this Agreement, the services rendered, or monetary payment obligations, both parties agree to first attempt settlement by mediation conducted by mediation rules of the American Arbitration Association.