Terms of service.
These terms of service (this “Agreement”) is entered into between You (“Lessee”) and Container Logic SRP, LLC (“Lessor”). Lessor is in the business of selling and leasing stainless steel containers utilized in the fermentation, brewing, food and beverage industries and Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee the Containers. In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Lease of Containers. Lessor shall lease to Lessee and Lessee shall lease from Lessor the containers and/or associated equipment, parts, components or accessories set forth on the Rental Order (collectively, the “Containers”) in the quantities and at the Rent (as defined in Section 8) and upon the terms and conditions set forth in this Agreement. THIS IS A NON-CANCELABLE NET LEASE. LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS UNDER THIS AGREEMENT IS ABSOLUTE AND UNCONDITIONAL AND IS NOT SUBJECT TO ANY ABATEMENT, COUNTERCLAIM, DEFENSE, DEFERMENT, INTERRUPTION, RECOUPMENT, REDUCTION, OR SETOFF FOR ANY REASON WHATSOEVER.
2. Delivery. Lessor shall deliver the Containers to Lessee’s place of business identified on the Rental Order within a reasonable period of time after the date of this Agreement using Lessor’s standard methods for packaging and shipping such Containers. Lessee shall inspect the Containers within 24 hours of receipt and Lessee will be deemed to have accepted the Containers unless it notifies Lessor in writing of any (a) nonconformities of the Containers to the make(s) or model number(s) set forth on the Rental Order or (b) Containers that were delivered to Lessee in damaged condition (collectively, “Nonconforming Containers”) within 24 hours of Lessee’s receipt and furnishes such written evidence or other documentation as reasonably required by Lessor. If Lessee timely notifies Lessor of any Nonconforming Containers, Lessor shall replace such Nonconforming Containers with conforming Containers. Unless otherwise agreed by Lessor, Lessee shall ship, at its expense and risk of loss, the Nonconforming Containers to Lessor’s facility located in Indianapolis, Indiana or such other location as may be designated by Lessor. If Lessor replaces any Nonconforming Containers, Lessor shall, after receiving Lessee’s shipment of Nonconforming Containers, ship to Lessee, at, unless otherwise agreed by Lessor, Lessee’s expense and risk of loss, the replaced Containers to Lessee. Lessee acknowledges and agrees that the remedies set forth in this Section 2 are Lessee’s exclusive remedies for the delivery of Nonconforming Containers.
3. Operation and Maintenance. Lessee shall allow Lessor to enter Lessee’s premises at all reasonable times to locate and inspect the state and condition of the Containers. Lessee shall at its expense keep and maintain the Containers in a good state of repair, normal wear and tear excepted, and shall use the Containers only for its intended purpose and follow Lessor's oral and written instructions regarding the installation, use, cleaning, commissioning, operation, storage and maintenance of the Containers as well as the instructions and requirements set forth in the operational manual(the “Manual”) for the Containers which Lessee hereby acknowledges having received (collectively, the “Instructions”). Lessee shall at all times comply with all applicable laws, regulations and ordinances applicable to Lessee's leasing, operation and/or use of the Containers. Lessee shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to conduct its business relation to the leasing, operation or use of the Container's
4. Term and Termination. The initial term of this Agreement commences on the date the Containers are received and accepted by Lessee and continues until the date noted on the Rental Order, unless and until earlier terminated by Lessor, as provided under this Agreement (the "Initial Term"). If by and upon the expiration of the Initial Term, Lessee does not exercise the Purchase Option as outlined in Section 5 and all Rent pursuant to Section 8 has been collected with no outstanding balance, this Agreement shall cease, and Lessor shall transfer ownership of Container(s) to Lessee. In addition to any remedies that may be provided in this Agreement, Lessor may terminate this Agreement with immediate effect upon notice to Lessee, if Lessee (a) 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 and/or (b) is in default in any of the terms and conditions of this Agreement, including, without limitation, failing to timely pay Rent. If Lessee is in default of any of the terms and conditions of this Agreement and/or Lessor otherwise terminates this Agreement as permitted hereunder, Lessor, and its agents, at Lessee’s risk, cost, and expense may at any time enter Lessee’s premises where any of the Container may be stored or used and recover the Containers.
5. Purchase Option. During the Term, provided Lessee is not in default under this Agreement, Lessee may elect to purchase some or all of the Containers in accordance with this Section 5. Lessee shall provide Lessor with irrevocable written notice of its election to purchase some or all of the Containers prior to the end of the Term. If Lessee selects this option, Lessee shall purchase the Containers specified in Lessee’s irrevocable written election notice at the purchase price(s) set forth on the Sales Order (collectively, the “Purchase Price”). Lessee shall pay Lessor, at the time it provides its irrevocable written election to purchase any Containers, (i) the Purchase Price; and (ii) any other amounts then due under this Agreement (including the costs or expenses of Lessor, if any, in connection with such purchase) in US dollars by wire transfer pursuant to Lessor’s instructions. Upon payment in full of all such amounts, Lessor shall transfer the Containers purchased by Lessee to Lessee, AS-IS, WHERE- IS, WITHOUT RECOURSE, REPRESENTATION, OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. In the event that Lessee does not elect to purchase all of the Containers in accordance with this Section 5, then the terms and conditions of this Agreement shall continue to apply to the remainder of the Containers leased by Lessee hereunder provided that the Rent for the remaining Containers leased by Lessee hereunder shall be adjusted by Lessor. THE PURCHASE PRICE IS EXCLUSIVE OF ALL SALES, USE AND EXCISE TAXES, AND ANY OTHER SIMILAR TAXES, DUTIES AND CHARGES OF ANY KIND IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON ANY AMOUNTS PAYABLE BY LESSEE AND LESSEE SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES, COSTS AND TAXES
6. Return of Containers. Except for Containers (if any) purchased by Lessee in accordance with Section 5, Lessee shall, at its risk and expense, no later than the expiration of the Term (a) deinstall, inspect, completely empty, thoroughly clean and sterilize and properly pack the Containers; and (b) return the Containers, freight prepaid, to Lessor’s facility in Indianapolis, Indiana, or such other location as may be designated by Lessor, by delivering the Containers on board such carrier as Lessor may specify. A return handling fee of $250.00 per container will be added to the final invoice. Lessee shall cause the Containers 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. Lessor reserves the right to charge additional fees for any containers returned not meeting the conditions set forth in this Section 6.
7. Title and Risk of Loss. Except as applicable for any Containers after such time as they have been properly purchased by Lessee in accordance with Section 5 (and only as to such purchased Containers), (a) the parties intend that this Agreement constitutes a true lease under the Uniform Commercial Code (“UCC”) (and not a disguised security interest), (b) Lessor is entitled to all deductions, depreciation, credits, and other tax benefits that are provided to an owner of the Containers, (c) Lessee acquires no ownership, title, property, right, equity or interest in the Containers other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement and (d) Lessee shall not pledge, mortgage, sell, license, sublease, assign or otherwise encumber this Agreement and/or any of the Containers in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Containers from any cause whatsoever (“Loss”) until the Containers have been returned to Lessor in accordance with Section 5. Except as applicable for any Containers after such time as they have been properly purchased by Lessee in accordance with Section 5 (and only as to such purchased Containers), 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 Containers. 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 Containers 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 Containers to secure any and all amounts due under this Agreement.
8. Rent. In consideration of Lessee’s right to possess and use the Containers during the Term, Lessee shall pay the rent at the monthly rate specified in attached the Rental Order (“Rent”) in advance, on the first day of each calendar month, during the Term (with the first month’s rent, prorated, if necessary, due on the date of this Agreement first above written), without any set-off, offset, abatement, or deduction whatsoever in US dollars by automated clearing house (ACH) direct debit transfers to Lessor’s bank account designated by and pursuant to Lessor’s instructions, and Lessee must keep on file with Lessor an active backup credit card which Lessor can use to charge Rent, in the event payment cannot be completed by ACH. Lessee shall pay interest on all late payments at the lesser of the rate of 1.5% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Lessee of any default under this Agreement. If by the expiration of the Term, Lessee does not return the Containers to Lessor in the condition and on the terms and conditions of Section 6 and Lessee shall not have properly exercised its right to purchase the Containers on the terms and conditions of Section 5, 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 Containers to Lessor in the manner required under Section 6 (“Holdover Rent”). Lessee shall not construe anything contained in this Section, including Lessee’s payment of Holdover Rent, as Lessor’s waiver of Lessee’s failure to perform any obligation under this Agreement. ALL RENT IS EXCLUSIVE OF ALL RENTAL, SALES, USE AND EXCISE TAXES, AND ANY OTHER SIMILAR TAXES, DUTIES AND CHARGES OF ANY KIND IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON ANY AMOUNTS PAYABLE BY LESSEE AND LESSEE SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES, COSTS AND TAXES.
9. Security Deposit. In addition to any down payment required by Lessor, 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 all 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.
10. Warranties and Liability. Subject to the terms, conditions and limitations set forth in this Section 10 and all other terms and conditions of this Agreement, during the Term, Lessor shall replace the Containers with identical or similar Containers if any Container’s welds or stainless steel materials fail. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Containers. Unless otherwise agreed by Lessor, Lessee shall return all non-conforming Containers at its expense and risk of loss to Lessor to the destination specified by Lessor. THIS LIMITED WARRANTY DOES NOT APPLY TO WEAR PARTS LIKE GASKETS, VALVES, PLASTIC PARTS AND SO ON. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 10 (WHICH ONLY APPLIES DURING THE TERM) LESSOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE CONTAINERS, 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 Containers and Lessee (if requested to do so by Lessor) returns such Containers 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 Containers are defective; (iii) if the defect arises because Lessee failed to follow any of the Instructions; (ii) Containers have been subjected to abuse, misuse, neglect, negligence, accident, improper installation, improper storage, improper cleaning, abnormal physical stress or abnormal environmental conditions; or (iv) if Lessee alters or repairs such Containers 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 10 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 LESSER OF (1) THE TOTAL RENT PAID TO LESSOR FOR THE CONTAINERS LEASED HEREUNDER AND (2) THE TOTAL PURCHASE PRICE PAID TO LESSOR FOR ANY CONTAINERS PURCHASED BY LESSSEE IN ACCORDANCE WITH SECTION 5 (IF ANY).
11. 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 Containers in an amount no less than the full replacement value of the Containers 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
12. 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, purchase, ownership, use and/or operation of the Containers.
13. Amendments and Waivers. 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.
14. Cumulative Remedies. 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. Notwithstanding the previous sentence, the parties intend that Lessee’s rights under Section 2 and Section 10 are Lessee’s exclusive remedies for the events specified therein.
15. Assignees and Beneficiaries. 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.
16. 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.
17. Entire 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 of the Term and/or Lessee’s purchase of the Containers pursuant to Section 5, shall survive. 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. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.