Terms of service.

Lease.  You (“Lessee”) herby agree to lease from Container Logic SRP LLC (“Lessor”) all kegs identified as part of this Lease and any future added kegs (each a “Keg” and collectively, the “Kegs”).  These terms of service (this “Agreement”) will govern all rentals of Kegs from Lessor unless agreed in writing otherwise.  The term of a Keg lease commences upon the date of delivery of a Keg and continues on successive 28 day periods (each a “Period”) unless either party gives the other at least thirty (30) days advance written notice of the intent to terminate this agreement. 

Delivery, Use and Return.  Lessor shall deliver the Kegs to Lessee’s place of business using Lessor’s standard methods for packaging and shipping such Kegs. Lessee may elect to arrange shipping and in doing so assumes all responsibility and liability for any associated costs and damages. Lessee shall inspect the Kegs within 24 hours of receipt and Lessee will be deemed to have accepted the Kegs.  Lessee shall allow Lessor to enter Lessee’s premises at all reasonable times to locate and inspect the state and condition of the Kegs. Lessee shall at its expense keep and maintain the Kegs in a good state of repair, normal wear and tear excepted, and shall use the Kegs only for its intended purpose and follow Lessor’s oral instructions regarding the use, cleaning, commissioning, operation, storage and maintenance of the Kegs. Lessee shall at all times comply with all applicable laws, regulations and ordinances applicable to Lessee’s leasing, operation and/or use of the Kegs. Lessee shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to conduct its business relating to the leasing, operation or use of the Kegs.  Lessee shall, at its risk and expense, no later than the expiration of the Term (a) inspect, completely empty, thoroughly clean and sterilize and properly pack the Kegs; and (b) return the Kegs, freight prepaid, to Lessor’s facility in Indianapolis, Indiana or such other location as may be designed by Lessor, by delivering the Kegs on board such carrier as Lessor may specify. Lessee shall cause the Kegs returned for any reason under this Agreement to (a) be free and clear of all liens (other than liens of Lessor) and rights of third parties; (b) be clean and completely empty and in the same condition as when delivered to Lessee, ordinary wear and tear excepted; (c) have all Lessee’s insignia or markings and all related residue removed and the areas where such markings were removed cleaned; and (d) be in compliance with applicable law. A fee of $100.00 will be assessed and collected per unreturned Keg.

Rent and Charges. Lessee agrees to pay Lessor the monthly rental rate, delivery and return shipping charges and all other charges, including any applicable taxes, for the use of the Kegs. Lessee shall pay rent (and any applicable taxes) at the monthly rate specified in advance of the Period on the first of each month (with the first month’s rent prorated, if necessary) in US dollars by automated clearing house (ACH) direct debit transfer to Lessor’s bank account or by credit card (including any and all associated fees) designated by and pursuant to Lessor’s instructions. There will be no return of any rent payment in the event a Keg is returned to Lessor prior to the end of a Period. Lessee shall pay interest on all late payments at the lesser of (i) the rate of 1.5% per month and (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to any down payment required by Lessor (if any), Lessor may require a security deposit to be deposited with Lessor as security for full performance of all the terms and conditions of this Agreement. Lessor may, but shall not be required to, apply or any portion of any such security deposit to any obligation of Lessee hereunder. Any security deposit may be commingled by Lessor with other funds (unless otherwise required by law) and shall not bear interest. If Lessor applies a security deposit to Lessee’s obligations hereunder, Lessee shall immediately restore the same. Upon Lessee’s full performance of all terms and conditions of this Agreement, Lessor shall, at the request of Lessee, promptly return any remaining security deposit to Lessee.

Default. Lessee’s failure to make payments timely or comply with any term and condition herein will constitute default. Upon Lessee’s default or if, Lessee becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, in addition to all other cumulative rights and remedies available to Lessor at law or in equity, (a) Lessor has the right to accelerate all payments due hereunder, (b) repossess any Kegs, (c) take any action permitted by law, (d) Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees and (e) Lessor, and its representatives, at Lessee’s risk, cost, and expense may at any time enter Lessee’s premises where any of the Kegs may be stored or used and recover the Kegs. If by the expiration of the Term, Lessee does not return any Units to Lessor in the condition and on the terms and conditions of this Agreement, Lessee shall continue to comply with all the terms and conditions of this Agreement, including the obligation to pay the prorated daily rent for each day from the expiration of the term until the date on which Lessee returns such Kegs to Lessor in the manner required hereunder.

Title and Risk of Loss. The parties intend that this Agreement constitutes a true lease under the Uniform Commercial Code (“UCC”) and not a disguised security interest. Lessor is entitled to all deductions, depreciation, credits, and other tax benefits that are provided to an owner of the Kegs. Lessee acquires no ownership, title, property, right, equity or interest in the Kegs other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement. Lessee shall not pledge, mortgage, sell, license, sublease, assign or otherwise encumber this Agreement and/or any of the Kegs in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Kegs from any cause whatsoever (“Loss”) until the Kegs have been returned to Lessor in accordance with this Agreement. Lessee shall notify Lessor in writing within 5 days of any such Loss. Lessee authorizes Lessor to file precautionary UCC financing statements and other similar filings and recordings with respect to the Kegs. Lessee agrees not to file any corrective or termination statements or partial releases with respect to any UCCs or other similar filings or recordings filed by Lessor in connection with the Kegs except (i) if Lessor fails to file a corrective or termination statement or release on request from Lessee after the expiration or earlier termination of this Agreement or (ii) with Lessor’s consent.  Out of an abundance of caution, and in no way an admission or acknowledgement by either the Lessor or Lessee that this Agreement is a financing agreement, Lessee grants, as a precaution, a security interest to Lessor in the Kegs to secure any and all amounts due under this Agreement.

Warranties and Liability. Subject to the terms, conditions and limitations set forth in this Section and all other terms and conditions of this Agreement, Lessor shall replace the Kegs with identical or similar Kegs if any Keg’s welds or stainless steel materials fail. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Kegs. Unless otherwise agreed by Lessor, Lessee shall return all non-conforming Kegs at its expense and risk of loss to Lessor to the destination specified by Lessor.  EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, LESSOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE KEGS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. The Lessor shall not be liable for a breach of the warranty (i) unless Lessor is given a reasonable opportunity after receiving the notice to examine such Kegs and Lessee (if requested to do so by Lessor) returns such Kegs to Lessor’s place of business at Lessor’s cost for the examination to take place there; (ii) unless Lessor reasonably verifies Lessee’s claim that the Kegs are defective; (iii) if the defect arises because Lessee failed to follow any of the Instructions; (ii) Kegs have been subjected to abuse, misuse, neglect, negligence, accident, improper connection, improper storage, improper cleaning, abnormal physical stress or abnormal environmental conditions; or (iv) if Lessee alters, paints, sands or repairs such Kegs without the prior written consent of Lessor.  Any delay or failure of Lessor to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused by an event beyond Lessor’s control (which events may include, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage). THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE LESSEE’S SOLE AND EXCLUSIVE REMEDY AND LESSOR'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT. IN NO EVENT SHALL LESSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE RENT PAID TO LESSOR FOR THE CONTAINERS LEASED HEREUNDER.

Insurance. During the Term of this Agreement, Lessee shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, comprehensive general liability insurance in a sum no less than $1,000,000 with financially sound and reputable insurers. During the Term of this Agreement, Lessee shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, insurance against physical loss and damage to the Kegs in an amount no less than the full replacement value of the Kegs with financially sound and reputable insurers. Upon Lessor’s request, Lessee shall provide Lessor with certificates of insurance from Lessee’s insurers evidencing the insurance coverage specified in this Section. The certificates of insurance shall name Lessor as an additional insured. Lessee shall provide Lessor with 30 days’ advance written notice in the event of a cancellation or material change in any such insurance policies.

Indemnification. Lessee shall indemnify, defend and hold harmless Lessor and its officers, directors, managers, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers arising out of or occurring in connection with Lessee’s leasing, use and/or operation of the Kegs.

Choice of Law and Forum. This Agreement is governed by, and construed in accordance with, the laws of the State of Indiana, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State Indiana. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the federal and state courts sitting in Indianapolis, Indiana, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Miscellaneous. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Lessee shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Lessor. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Subject to the limitations and other provisions of this Agreement, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Without limiting the generality of the foregoing, the terms of this Agreement expressly exclude any of Lessee’s general terms and conditions contained in any purchase order or other document issued by Lessee.