In consideration of and as inducement to renting AquaDoula Spa or La Bassine Professional Pool or La Bassine Eco Water Birth Pool or Oasis Elite Eco Water Birth Pool or any other pool or spa, I represent and expressly agree:
I SHALL RELEASE, WAIVE DISCHARGE AND COVENANT NOT TO SUE Esther Healey, Awakenings Birth Services, its agent and employees, its venue or facility providers, its instructors, its students, its residents, and its residents guests (all hereinafter collectively called “Awakenings”) from all liability for any and all loss or damage, and any claim or demands therefore on account of injury to the person or participants, or property, or resulting in death of the named participant or other participants.
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UNIVERSAL TERMS AND CONDITIONS. These are universal terms and conditions intended to apply to whatever use this form may be put, except to the extent they are inconsistent with the printed and written materials on the reverse side of this form. On these terms and conditions the word “Equipment” shall mean AquaDoula Spa, La Bassine Professional Pool, La Bassine Eco Water Birth Pool, Oasis Elite Eco Water Birth Pool, any other pool or spa, heaters, pumps, other accessory equipment, property, material, supplies, etc, as the context may require.
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RENTAL TERMS. Awakenings hereby rents the Equipment to Lessee for the period commencing on the agreed date of acquisition and ending upon its return to Awakenings, subject to charge for the applicable rental period. Unless otherwise specified, rental is for a minimum period specified in the Rental Agreement. For all purposes under this Agreement, title, to the Equipment, if any, shall at all times remain in Awakenings. Lessee shall pay Awakenings the rental amount as determined by the schedule of rental fees provided. No allowance will be made for Sundays, holidays, time in transit, or for any period of time the Equipment may not be in actual use while in Lessee’s possession. Rental fees shall become due and payable as provided in the Rental Agreement. Rental rates are for normal and reasonable use of Equipment.
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DISCLAIMER OF WARRANTIES; INSPECTION OF EQUIPMENT. Awakenings MAKES NO WARRANTIES, EXPRESS OR IMPLIED, SPECIFICALLY INCLUDING THE WARRANTIES OF MERCHANT- ABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AND NON-INTERFERENCE. Prior to execution of this Agreement, Lessee has examined the Equipment as fully as desired, or had the opportunity to make such examination and refused to do so, or examined Awakenings brochures(s), description and technical specifications and is satisfied therewith and waives the examination of the Equipment, and acknowledges that the Equipment conforms to the description set forth on the reverse hereof. Lessee acknowledges that Awakenings has made no promises, representations, warranties, or assurances to Lessee that are not specifically set forth herein, as inducements to enter into this Agreement.
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RECEIPT, USE, MAINTENANCE, AND FAILURE OF EQUIPMENT. By acquiring equipment, Lessee acknowledges that it has received the equipment and all devices and material used to connect the Equipment in good working order. Lessee shall not abuse, harm or improperly operate the Equipment, and shall possess and operate it in conformance with all applicable laws and regulations, and in accordance with the manufacturer’s specifications and recommendations. In the event of any failure of the Equipment, of any nature whatsoever, Lessee shall immediately notify Awakenings and is responsible, at its expense, for the return of the Equipment to Awakenings. Without Awakenings’ written authorization, Lessee shall not incur any expense for Awakenings account for the repair of failed Equipment.
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RETURN OF EQUIPMENT. Upon expiration of the rental period or upon termination of this Agreement, Lessee shall accommodate the return of all the Equipment to Awakenings, in the condition and repair as when delivered to Lessee, subject only to reasonable wear and tear. Lessee shall be liable for all damages and/or cleaning charges to or loss of the Equipment. If Awakenings has agreed to deliver the Equipment to Lessee or pick up the Equipment from Lessee, Lessee shall be responsible for all loss or damage to the Equipment from time of delivery to Lessee through the period of pick up by Awakenings.
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DAMAGED EQUIPMENT; REASONABLE WEAR AND TEAR. If the Equipment is returned in a damaged or excessively worn condition, Lessee shall pay Awakenings the reasonable cost of repair and pay rental on the Equipment at one-half the regular rental rate until repairs have been completed. Awakenings shall be under no obligation to commence repair work until Lessee has paid therefore. Reasonable wear and tear shall mean only the normal deterioration of the Equipment caused by an ordinary and reasonable use basis. The following shall not be deemed reasonable wear and tear: damage resulting from an overturning or improper use or operation of the Equipment including overloading or exceeding the capacity of the Equipment; damage in the nature of bending, tearing, staining of the Equipment or any part thereof, and wear resulting from excess use.
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LIABILITY FOR DAMAGES TO PERSON AND PROPERTY; INDEMNIFICATION. Awakenings shall not be responsible for any loss, damage, or injury to persons and/or entities including, but not limited to, Lessee, Lessees customers, guests or invitees, Lessee’s employees, or Lessee’s property, including incidental, special or consequential damages, in any way connected with the operation of, used of, defect in, failure of the Equipment, or maternal complications including, but not limited to, infant injury, morbidity or mortality, or injury to any individual(s) using the Equipment. Awakenings and Lessee acknowledge that no third party is intended to be a beneficiary under this Agreement. Lessee shall indemnify, defend and hold Awakenings harmless from and against any claims of the third parties for loss, injury or damage to their person and property arising out of Lessee’s possession, use, maintenance, or return of the equipment, including legal costs incurred in defense of such claims. Lessee shall furnish Awakenings with a complete report of any accident involving the equipment, including names and addresses of all personal and witnesses involved.
Terms and conditions of the Lessee’s indemnification shall extend to any claims made by Lessee’s employees, and Lessee hereby waives any immunity provided for under state workers’ compensation laws. It is agreed that the indemnity provisions set forth herein shall be interpreted to provide the broadest indemnity permitted by law, however it shall not be interpreted to indemnify Awakenings against its sole negligence. In the event Awakenings is adjudged partially at fault for any loss to which the Lessee’s indemnity obligation applies, the indemnification shall be enforced only to the extent of the Lessee’s negligence, it being the intent that Lessee’s indemnification be limited by Awakenings fault, if any.
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CONSEQUENTIAL DAMAGES. Awakenings shall not be liable for any incidental or consequential damaged under any circumstances whatsoever, including without limitation, any failure of Awakenings to comply with the provisions of this Agreement.
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ASSIGNMENT, SUBLETTING, AND LOCATION. Except with Awakenings’ prior written consent, Lessee shall not assign or sublet any right or delegate any duties under this Agreement. No item of leased Equipment shall be removed from the location where Lessee represented it was intended to be used, or removed from the state of Awakenings’ premises, except with the prior written consent of Awakenings.
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EVENTS OF DEFAULT; REMEDIES. Time is of the essence under this Agreement, and Lessee will be in default if any of the following occurs (“Event of Default”): (a) Lessee fails to pay, as and when due, any installment of renter any other payment required hereunder; (b) Lessee fails to perform any other covenant or agreement to be performed by it under this Agreement or any other agreement Lessee as with Awakenings; (c) at any time Awakenings believes in good faith that the prospect of Lessee’s payment or performance in accordance with the provisions of the Agreement is impaired by (1) Lessee’s failure to adequately protect the Equipment from loss or dam- age, (2) if the Equipment is in danger of being seized or damaged due to strikes or other conditions, or (3) payment or performance is otherwise impaired. Upon any Even of Default, Awakenings shall have an immediate right to pursue the remedies set forth in this Agreement or allowed by law.
In the event of Lessee’s default under the terms of this Agreement, or in the event of any other default recognized under law, Awakenings without notice to Lessee and with not opportunity for Lessee to cure the default, may (i) accelerate all performance of Lessee, (ii) cancel this Agreement, (iii) retake the Equipment, (iv) peruse any and all other remedies available under law. Awakenings repossession of the Equipment shall not act as a release of the Lessee from liability for other damages. Lessee’s sole remedy for any failure of or defect in the Equipment shall be the termination of the rental charges at the time of failure, provided Awakenings is notified within 24 hours of the time of failure.
If the Equipment is not returned at the termination of the rental period or for any reason it becomes necessary for Awakenings to retake the Equipment to protect it from loss or damage, or if the Equipment is in danger of being seized or damaged because of strikes or any other condition, Awakenings and it agent may go upon Lessee’s property and retake the Equipment, without proper notice and legal process, and Lessee waives all right to a prior judicial hearing. Awakenings and its agent may take all action reasonably necessary to retake the Equipment and Lessee waives for itself, it agents and employees, all claims for damages and losses, physical and pecuniary, caused by retaking by Awakenings. Lessee agrees to pay all costs and expenses incurred by Awakenings in retaking by Awakenings. Lessee agrees to pay all costs and expenses incurred by Awakenings in retaking the Equipment.
Lessee agrees and authorizes Lessee agrees to pay all costs and expenses incurred by Awakenings in retaking to make additional charges with Lessee’s ”signature on file” to Lessee’s account set forth on the face of the Rental Agreement for, including by not limited to, additional rental days, damage or missing Equipment, retake fees and costs, and default fees and expenses including reasonable attorney’s fees and costs.
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COMPLIANCE WITH LAW AND SAFETY REGULATIONS. As Awakenings has no control over the use of the Equipment by Lessee, Lessee agrees, at its sole expense, to comply with the most current version of all CODES OF SAFE PRACTICES, all laws and regulations, including the Occupational Safety and Health Administration ACT of 1970 (OSHA) and all other federal, state and locals laws, regulations and ordinances, which may affect the Equipment while it is in the possession of Lessee. Lessee shall indemnify and hold Awakenings harmless from any liability or expense, including attorney’s fees, resulting from any actual asserted violation of such laws, regulations and ordinances. The indemnity of Lessee provided under Section 11 shall incorporate all indemnity provision of Section 7 hereof.
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OTHER. This Agreement shall be governed and construed in accordance with the laws of the State of California, other that it conflict of laws and rules. Expect for claims for indemnity, as provided in Section 7 above, venue for any suit, action, or proceeding brought under or arising out of this Agreement shall be in Alameda County, California.
This Agreement sets forth the entire understanding of the parties with regard to the subject matter hereof, and superseded any and all prior understanding and agreements, whether written or oral, between the parties with respect to said subject matter. This Agreement may be amended, modified or rescinded only by a written instrument signed by both parties, and shall not be modified or altered by any course of performance by either Awakenings or Lessee, or by usage of the trade.
