THIS RENTAL AGREEMENT CONTAINS RELEASES, WARRANTY LIMITATIONS, ASSUMPTION OF RISK PROVISIONS, AND INDEMNITY PROVISIONS, ALL OF WHICH LIMIT YOUR LEGAL RIGHTS AND REMEDIES. YOU SHOULD READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS BINDING EFFECTS.
THIS EQUIPMENT RENTAL AGREEMENT (this “Agreement”) dated on the date that you subscribed to any of our subscriptions (referred here as the “effective date”),
BETWEEN SUNU INC. (the “Lessor” and or “Sunu”), AND [USER] (the “Lessee”), having as address the one registered when signing in to the Sunu platform (the Lessor and Lessee are collectively referred as the “Parties”).
IN CONSIDERATION OF Your use of any of the Sunu Services (defined below), You (“Subscriber”, “You”, “Your” or “Lessee”) agree to all terms and conditions in this Rental Agreement. In order to rent an Equipment, You must also agree to the terms of the Liability Waiver, Release, Indemnification, and Voluntary Assumption of the Risk (“Release”). The Sunu “Services” are composed of several elements, including (1) Access to an online Dashboard, (2) automated credit card payment processing system, (3) the Equipment to be rented, including the Sunu Band and or Sunu Nek (collectively or individually, "Equipment" or "Wearable devices"), (3) Sunu mobile application (“Mobile Application”) and Sunu websites, sunu.com, snek.sunu.com and sband.sunu.com (collectively, the “Website”) (the Mobile Application and the Website, collectively, the “Platform”), and (4) all related equipment, personnel, and information.
It is hereby acknowledged, the Lessor leases the Equipment to the Lessee, and the Lessee leases the Equipment from the Lessor on the following terms:
The Lessor agrees to lease the Equipment to the Lessee, and the Lessee to lease the Equipment from the Lessor in accordance with the terms set out in this Agreement.
Long-Term Subscription. You may subscribe to a one-year subscription ("Annual Subscription"), or as described below a short-term subscription. When You subscribe, You agree to be charged the annual fee plus any usage or surcharge fees as described in this Agreement that You incur. The Annual Subscription fee and usage and surcharge fee amounts are listed on the Platform and are subject to applicable sales taxes and other local government charges, which may be charged and collected by Sunu. Your subscription becomes valid and active upon purchase.
All Annual Subscriptions will be enrolled in the Auto-Renew feature by default unless You opt out of the Auto-Renew feature by deselecting the "Auto-Renew Subscription" option found on the profile page within the member dashboard area of the Website.
The annual subscription, exclusive of sales tax, will be paid in one installment each year for the amount agreed at the dashboard at the moment when you subscribed, in advance, beginning on the Effective Date and will be paid on the first day of each succeeding month throughout the Term (the “Rent”).
Short-Term Subscriptions. When You purchase a short-term subscription to the Service, You agree to be charged the monthly subscription fee (“monthly subscription”) plus any usage fees as described in Section 2 that You incur, and You agree that Sunu may place a security deposit hold on Your credit or debit card. The short-term subscription fee amounts are listed on the Platform and are subject to applicable sales taxes and other local government charges, which may be charged and collected by Sunu. The costs for a short-term subscription and any usage fees will be charged at the end of the subscription period. The amount of the security deposit could remain on Your credit or debit card account for an amount of time to be determined by Your bank's policies regarding holds. Sunu may place additional security deposit holds on Your credit or debit card for each additional short-term subscription and You will be charged all applicable fees for the use of the Sunu Equipment with the short-term subscriptions purchased with Your credit or debit card. Your subscription becomes valid and active upon purchase.
The monthly subscription, exclusive of sales tax, will be paid in one installment each month for the amount agreed at the dashboard at the moment when you subscribed, in advance, beginning on the Effective Date and will be paid on the first day of each succeeding month throughout the Term (the “Rent”).
Credit/Debit Card Matters. You must input a valid credit or debit card number and expiration date before You will be registered to use the Services, and You must maintain a valid credit or debit card throughout the duration of Your Annual Subscription. Participating card networks are shown on the Platform. You represent and warrant to Sunu that You are authorized to use the credit or debit card. You authorize Sunu to charge Your credit or debit card for all fees incurred by You, subject to applicable sales taxes and other local government charges. If You dispute any charge on Your credit or debit card account, then You must contact Sunu within 10 days of Your receipt of Your statement containing the disputed charge. You agree to immediately inform Sunu of all changes relating to Your credit or debit card and update Your member profile on the Platform. If the credit or debit card connected to Your Annual Subscription becomes invalid at any time and You do not replace it on Your member profile with a valid credit or debit card, Sunu may suspend Your Annual Subscription
The Lessee will pay a one-time set-up fee as described in your dashboard at the moment you accept to start a subscription (the “Set-tup Fee”) before taking possession of the Equipment. The Lessor will refund the Set-up fee to the Lessee only when the Lessee has decided to return the Equipment in the same condition as the Lessee received it, with no additional damages, scratches, alterations or modifications, within the first 15 natural days of the effective date of this Agreement and according to the stated in section 31 of this Agreement. After the first 15 natural days of the effective date of this Agreement, the Lessor will have no obligation to refund the set-up fee.
At the moment of signing this agreement, the Lessee will provide the Lessor with credit card information and hereby authorizes the Lessor to make automatic charges to the provided credit card equivalent to the rent every month that rent payment is due.
At the signing of this Agreement, the residual value of the equipment (the “Residual Value”) is agreed to be $99.00 U.S. dollars. However, if and when the Lessee desires to purchase the Equipment, the Lessee and the Lessor may negotiate a different residual value at that time. This negotiated value will be the “Residual Value” for any such purchase.
The Lessee has the option to purchase the Equipment at the end of the Term by paying the following amounts:
After the Lessee has paid all of the costs and fees associated with purchasing the Equipment, the Lessor will return the following amounts, or the remaining portions of these amounts, to the Lessee:
The Lessor will, at the Lessor’s own expense and risk, deliver the Equipment to the Lessee at the Lessees address described in this Agreement.
The Lessee will use the Equipment in a good and careful manner and will comply with all of the manufacturer’s requirements and recommendations respecting the Equipment and with any applicable law, whether local, state or federal respecting the use of the Equipment, including but not limited to, environmental and copyright law.
The Lessee will use the Equipment for the purpose for which it was designed and not for any other purpose.
Unless the Lessee obtains the prior written consent of the Lessor, the Lessee will not alter, modify or attach anything to the Equipment unless the alteration, modification or attachment is easily removable without damaging the functional capabilities or economic value of the Equipment.
The Lessee will, at the Lessee’s own expense, keep the Equipment in good repair, appearance and condition, normal and reasonable wear and tear excepted. The Lessee will supply all parts that are necessary to keep the Equipment in such state. From time to time, the Lessee has the option to request to the Lessor to repair and or maintain the Equipment at the Lessee’s own expense, including shipment fees, handling fees, repair materials and labor costs associated with the maintenance or repair of the Equipment.
If the Equipment is not in good repair, appearance and condition when it is returned to the Lessor, the Lessor may make such repairs or may cause such repairs to be made as are necessary to put the Equipment in a state of good repair, appearance and condition, normal and reasonable wear and tear excepted. The Lessor will make the said repairs within reasonable time of taking possession of the Equipment and will give the Lessee written notice of and invoices for the said repairs. Upon receipt of such invoices, the Lessee will immediately reimburse the Lessor for the actual expense of those repairs. The parties hereby agree that the Lessor has the full authorization to at his own discretion and without needing to previously notify the Lessee, charge the Lessee for the repairs using the credit card information provided by the Lessee.
The Lessee may, but is not obligated to, enforce any warranty that the Lessor has against the supplier or manufacturer of the Equipment. The Lessee will enforce such warranty or indemnity in its own name and at its own expense.
The Lessor, in consideration of payment of the monthly fees set forth herein, hereby grants and the Lessee accepts a limited, non-exclusive license, subject to the terms and conditions set forth herein to use the Licensed Software and related “bug” fixes, updates, enhancements, upgrades or re-releases, for the purpose managing the operation of the Equipment and to no other party and for no other purpose. This Agreement, any license and any program to which it applies may not be assigned, sublicensed or otherwise transferred by the Lessee without the prior written consent of the Lessor. Any attempted assignment by the Lessee without such consent shall be void and this Agreement shall be terminated.
Except as expressly stated herein, the Lessee agrees to not: (i) use Lessor's Licensed Software, other than within the scope of the license granted by the Lessor under this section; (ii) in any way alter, change, modify, adapt, translate, or make derivative works of any software, Equipment or other products and services delivered hereunder; (iii) sublicense the Lessor’s Licensed Software; or (iv) integrate, cross-reference or otherwise use any data contained in the Lessor’s Licensed Software with data obtained from any third party.
The Lessee acknowledges that by entering into this Agreement, it is not acquiring any right, title or interest in the source code relating to the Licensed Software except for the right to use it as provided in this Agreement. The source code relating to the Licensed Software is a trade secret of the Lessor and is not generally known to the public or to other persons and the Lessee agrees to not disclose to any third person or entity said information.
The Lessor has sole and exclusive ownership of all rights, title and interest in and to the Licensed Software, all copies thereof, and all modifications and enhancements thereto subject only to the right and license expressly granted to the Lessee herein. This Agreement does not provide the Lessee with title or ownership of the Licensed Software, but only a right to use the Licensed Software as provided herein.
The Equipment will be in good working order and good condition upon delivery.
The Equipment is of merchantable quality and is fit for the purposes it is ordinarily used.
To the extent permitted by law, the Lessee will be responsible for risk of loss, damage or destruction of the Equipment from and every cause.
If the Equipment is lost or damaged, the Lessee will continue paying Rent, will provide the Lessor with prompt written notice of such loss or damage and will, if the Equipment is repairable, send the Equipment to the Lessor to be put in a state of good repair, appearance and condition at the Lessee own expense. The Lessor will send the Lessee a new or temporary equipment, which may include extra costs to the Lessee, at the Lessors sole discretion.
In the event of Total Loss of the Equipment, the Lessee will provide the Lessor with prompt written notice of such loss and will pay to the Lessor all unpaid Rent for the Term plus the Casualty Value of the Equipment, at which point ownership of the Equipment passes to the Lessee.
The Equipment is the property of the Lessor and will remain the property of the Lessor except for the causes described in this Agreement.
The Lessee will not encumber the Equipment or allow the Equipment to be encumbered or pledge the Equipment as security in any manner.
The Lessor warrants that the Lessor has the right to lease the Equipment according to the terms in this Agreement.
The Lessor warrants that as long as no Event of Default has occurred, the Lessor will not disturb the Lessee’s quiet and peaceful possession of the Equipment or the Lessee’s unrestricted use of the Equipment for the purpose for which the Equipment was designed.
At the end of the Term or upon earlier termination of this Agreement, the Lessee will return the Equipment at the Lessee’s cost, expense and risk to the Lessor by delivering the Equipment to the address that the Lessor designates and notifies in writing to the Lessee at the time. If the Lessee fails to return the Equipment to the Lessor at the end of the Term or any earlier termination of this Agreement, the Lessee will pay to the Lessor any unpaid Rent for the Term plus the Casualty Value of the Equipment plus 10% of the Casualty Value, at which point ownership of the Equipment will pass to the Lessee. The parties agree that once the ownership of the Equipment passes to the Lessee, the Lessor has no obligation to continue providing any service to the Lessee, including but not limited to Software Services.
Before the first use of the Equipment, You agree that You will watch, read and follow the training tutorials for the correct operation of the Equipment that Sunu makes available on Sunu’s website and on the Sunu mobile application. You hereby acknowledge and agree that any claim or refund about the operation of the Equipment, the Rent or any subscription will only be applicable when and if you watched, read and followed the proper training of use of the Equipment by following the instructions provided at the Sunu website and or the Sunu mobile application. You hereby agree to resign of any claim if you started using the Equipment before taking the training mentioned in this section of the Agreement.
The Lessee will, during the whole of the Term and for as long as the Lessee has possession of the Equipment, take out, maintain and pay for insurance against loss of and damage of the Equipment for the full replacement value of the Equipment and will name the Lessor as the loss payee.
The insurance will be in the joint name of the Lessor and the Lessee so that both the Lessor and the Lessee will be protected from liability and will provide primary and non-contributing coverage for the Lessor. The insurance policy will have a provision that it will not be modified or cancelled unless the insurer provides the Lessor with thirty (30) days written notice stating when such modification or cancellation will be effective.
Upon written demand by the Lessor, the Lessee will provide the Lessor with an original policy or certificate evidencing such insurance.
The Lessee appoints the Lessor as the Lessee’s attorney-in-fact (“Attorney”) with the power to maintain the above insurance and to secure payments arising out of any insurance policy required by this Agreement. The Attorney has the power to do all acts that are necessary or desirable to secure such payments.
If the Lessee fails to maintain and pay for such insurance, the Lessor may, but is not obligated to, obtain such insurance, but if the Lessor does obtain such insurance, the Lessee will pay the Lessor the cost of such insurance upon notification form the Lessor of the amount.
The Lessee will report and pay all taxes, fees and charges associated with the Equipment, with the use of the Equipment, and with revenues and profits arising out of the use of the Equipment, including, but not limited to, sales taxes, property taxes, and license and registration fees. The Lessee will pay any and all penalties and interest for failure to pay any tax, fee or charge on or before the date on which payment is due. The Lessee will pay any and all penalties and interest for failure to report required information to any taxing authority with jurisdiction over the Lessee or the Equipment. If the Lessee fails to do any of the foregoing, the Lessor may, but is not obligated to, do so at the Lessee’s expense, including management fees incurred by the Lessor related to this clause.
Notwithstanding any other provision of this Agreement, the Lessee will not be required to pay any taxes, fee or charge if the Lessee is contesting the validity of same in the manner prescribed by the legislation governing the imposition of same, or in the absence of a prescribed form, in a reasonable manner. However, the Lessee will indemnify and reimburse the Lessor for damages and expenses incurred by the Lessor arising from or related to the Lessee’s failure to pay any tax, fee or charge, regardless of whether the Lessee is contesting the validity of the same or not.
If the Lessee fails to pay any and all taxes, fees, and charges mentioned in this Agreement and the Lessor, on behalf of the Lessee, pays the same, the Lessee will reimburse the Lessor for the cost upon notification from the Lessor of the amount.
Sunu makes every effort to provide the Services for 365 days per year; however, Sunu does not guarantee that the Services will be available at all times, as force majeure events or other circumstances might prevent Sunu from providing the Services from time to time. Access to the Services also is conditioned on the availability of Equipment. Sunu does not represent or warrant the availability of any Services or the availability of any Equipment. You may use the Platform to check the inventory of Equipment. You agree that Sunu, as applicable, may require You to return an Equipment at any time.
The Lessee will indemnify and hold harmless the Lessor against any and all claims, lawsuits, suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees and costs, arising out of or related to the Lessee’s use of the Equipment.
The occurrence of any one or more of the following events will constitute an event of default (“Event of Default”) under this agreement:
On the occurrence of an Event of Default, the Lessor will be entitled to pursue any one or more of the following remedies (the “Remedies”):
The Lessee will not assign this agreement, the Lessee’s interest in this agreement or the Lessee’s interest in the Equipment without the prior written consent of the Lessor.
If the Lessee assigns this Agreement, the Lessee’s interest in this Agreement or the Lessee’s interest in the Equipment without the prior written consent of the Lessor, the Lessor will have recourse to the Remedies and will be entitled to all damages caused by the transfer to the extent that the damages could not reasonably be prevented by the Lessor.
The Lessor has the right at its own discretion to assign this Agreement, the Lessor’s interest in this Agreement and or the Lessor’s interest in the Equipment at any time and without need to consent from the Lessee. The Lessor will notify in writing to the Lessee of any assignation of the Lessor to any third party. The Lessor has the right at his own discretion to assign and or transfer the Lessor’s right to collect rent or any other financial obligation of the Lessee.
If the Lessor assigns this Agreement, the Lessor’s interest in this Agreement or the Lessor’s interest in the Equipment, the Lessor has the obligation to notify in writing to the Lessee about such action.
Upon written demand by the Lessor, the Lessee will execute and deliver to the Lessor documents required by the Lessor to protect the Lessor’s interest in the Equipment including, but not limited to the documents necessary to file a UCC financing statement.
The term of this Rental Agreement begins when You first access the Services, and ends 10 years after Your last use of the Services; provided, however, that Your personal financial responsibility under Section 4 of this Rental Agreement, titled Credit and Debit Card Matters, expires one year after the later of (i) Your last use of the Services, or (ii) the expiration of Your subscription. At any time and from time to time, and without Your consent, Sunu may unilaterally terminate Your right to use any of the Services, in Sunu’s sole discretion and without any notice or cause. For the avoidance of doubt, the terms of this Rental Agreement apply to any renewal of Your Annual Subscription and to any short-term subscriptions You purchase subsequent to Your initial subscription.
You may terminate Your use of the Services at any time; provided, however, that (i) no refund will be provided by Sunu, (ii) the term of this Rental Agreement continues in accordance with this Section, and (iii) You may still be charged any applicable additional fees arising under this Rental Agreement. This Rental Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how the Rental Agreement is terminated.
If You have opted out of the auto-renewal feature, then starting thirty (30) days before and no later than one (1) year after the expiration of Your Annual Subscription, You may renew the Annual Subscription on the Platform, under the “Member Login” heading. If the Annual Subscription is not renewed within this period of time, then You may be required to (i) take certain actions to reactivate Your old account, or (ii) create an entirely new account for a new Annual Subscription. The Annual Subscription, and the personal identification number and system key related thereto, are non-transferable and may be terminated if You breach this Rental Agreement, as decided by Sunu in its sole discretion.
Service of all notices under this Agreement will be delivered personally or sent by registered mail or courier or sent electronically to the following addresses:
|Lessor: Sunu Inc.|
|340 Elm Street, 2nd and 3rd Floor, Somerville, MA 02144, United States of America|
|Lessee: email provided when logging in to the Lessee dashboard.|
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. Words in upper caps mean and include the lowercase and vice versa
It is the intention of the Parties to this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of Delaware (the “State”), without regard to the jurisdiction in which any action or special proceeding may be instituted.
This Rental Agreement and the Release contain the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Rental Agreement and the Release supersede all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Your consent, Sunu may unilaterally amend, modify, or change this Rental Agreement, in its sole discretion and without any notice or cause, and by continuing to use any Services after any amendment, modification, or change, You have agreed to be bound by all such amendments, modifications, and changes. You must carefully review this Rental Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Notwithstanding any provision in this Rental Agreement that may be to the contrary, the pricing set forth on the Platform supersedes all pricing set forth in this Rental Agreement.
If there is a conflict between any provision of this Agreement and the applicable legislation of the State of Delaware (the “Act”), the Act will prevail and such provisions of the Agreement will be amended or deleted as necessary in order to comply with the Act. Further, any provisions that are required by the Act are incorporated in this Agreement.
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions will nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement and the remaining provisions had been executed by both Parties subsequent to the expungement of the invalid provision.
This Agreement may be executed in counterparts. This Agreement may be executed electronically and the electronic copy and electronic signatures will have the same validity and it would have a written physical signature. Facsimile signatures are binding and are considered to be original signatures.
Time is of essence in this Agreement.
This Agreement will extend to and be binding upon and inure to the benefit of the respective heirs, executors, administrators, successors and assigns, as the case may be, of each Party to this Agreement.
Neither Party will be liable in damages or have the right to terminate this Agreement for any delay or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions, wars, insurrections, natural disasters, such as earthquakes, hurricanes, floods or pandemics and or any other cause beyond the reasonable control of the Party whose performance is affected.
NOTICE TO THE LESSEE: This is a lease. You are not buying the Equipment. Do not sign this Agreement before you read it. You are entitled to a completed copy of this Agreement when you sign it.
I certify that I am the person renting a Bicycle, I am 18 years of age or older, and I have read and agreed to all of the terms and conditions set forth in this Rental Agreement.
I certify that I am the Parent or Legal Guardian of the Subscriber, who is 16 years of age or older, and I have read and agreed to the terms and conditions set forth in this Rental Agreement on behalf of myself and the Subscriber, and I authorize the use of the Services by such minor Subscriber.
May 18th, 2021