SUPER BIRTHDAY, INC.
Rental Agreement and Terms
1. General: All rentals of the Train are by the hour, with a minimum of one hour required. The Train consists of one (1) “Locomotive” and three (3) “Train Cars”, with a maximum seating capacity of up to 18 persons (children and/or adults).
Super Birthday will provide a “Conductor” for the operation of the Train who will remain with the Train until expiration of the rental period. The Conductor is NOT responsible for ensuring the safety and/or security of the Renter and/or his or her guests at any event and is solely provided for the safe operation and management of the Train during the event.
2. Supervision: Renter is responsible for providing at least one adult, over the age of eighteen (18) to supervise usage of the Train by Renter’s guests and to assume responsibility for the safety of those persons. Super Birthday shall in no way be liable for accidents, injuries or other unforeseen occurrences not directly related to the operation and/or management of the Train.
3. Security Deposit: Renter shall pay a security deposit of $100.00 at the time of reservation, payable by Visa, MasterCard, Discover or cash. The security deposit is non-refundable except as specifically noted in Paragraph 5, Cancellation Policy, below.
4. Payment: Renter shall pay all charges payable under this Agreement, in cash, prior to set-up of the Train on the day of the event. Renter shall pay any additional amounts due immediately as such costs are incurred. Renter shall pay all reasonable costs of collections, court and attorneys’ fees in the event that Renter fails to make timely payment for charges due under this Agreement. Renter shall pay in addition to any other amounts payable hereunder, a service charge of 2.0% per month on all past due accounts.
5. Cancellation Policy: Security deposit will be refunded within fourteen (14) days ofcancellation if: 1) a cancellation request is made in writing at least fourteen (14) days prior to the date and time of the event; or 2) the event for which the Train was reserved is rained out. Renter acknowledges that the security deposit will be forfeited if reservation is cancelledwithin the 14-day period before the reservation event date.
6. Modifications: No modifications or revisions, aside from the cancellation policy outlined above, may be made to the Train reservation within 24 hours prior to the event, except as specifically permitted by Super Birthday. Any changes permitted by Super Birthday to the rental reservation within this time period may subject the Renter to an additional charge.
7. Additional Time: Additional rental time of the Train shall be available at the sole discretion of Super Birthday and as long as the Train has not been previously booked for another event that would prohibit such additional time. Any additional time must be prepaid by the Renter, on a cash-only basis.
8. Site Preparation/Delivery: Renter agrees to have site clean and ready for delivery of the Train and related equipment. Deliveries are made at the convenience of Super Birthday, at street level, no less than 30 minutes prior to the start of any event for which it has been reserved, unless otherwise arranged. Renter agrees to pay an additional charge for any deliveries beyond street level, based on the geographical area and the nature of the desired placement. Any additional charges must be prepaid on a cash-only basis.
Super Birthday reserves the right to refuse service to anyone, at its sole discretion.
9. Use of Equipment/Responsibility: Renter agrees to: 1) use the Train only for the purpose for which it was intended and manufactured; 2) use the Train in a proper and safe manner; 3) comply with all applicable laws and regulations; and 4) return the Train in the same condition and good repair as when received. Renter hereby assumes all risks of loss and those inherent to the operation and use of the Train, regardless of cause. If any items or parts of the Train are lost, stolen, or damaged, Renter will assume all costs of replacement or repair, including all labor costs.
10. Insurance: Renter shall maintain, at Renter’s expense, liability, property and casualty insurance coverage in an amount not less than One Million Dollars ($1,000,000.00) to protect Super Birthday and its equipment against any and all claims, loss, or damage of whatever nature or type.
11. Equipment Failure: Renter agrees to immediately discontinue use of the Train or related equipment should it at any time become unsafe or in a state of disrepair, and will immediately notify Super Birthday of the facts. Super Birthday may, at its discretion: 1) make all equipment operable within a reasonable time; 2) provide a like item, if available; 3) make a like item available at another time; or 4) adjust the rental charges. This provision does not relieve Renter from her/her obligations under the Agreement. In any event, Super Birthday shall not be responsible for injury or damage resulting from failure or defect of the Train or related equipment.
12. Release of Liability: In the event that Renter accepts any type of discount or reduced rate from Super Birthday for any inability on the part of Super Birthday to perform under the Agreement, Renter agrees that said discount will act as a full and final settlement and release of any further or future claims, including, but not limited to, disputes by Renter for credit card charge authorizations previously granted to Super Birthday.
13. Disclaimer of Warranties: Renter acknowledges that the Train is of a size, design and capacity selected by Renter, and that Super Birthday has not made and does not make any representation, warranty, or covenant, express or implied, with respect to the condition, quality, durability or suitability of the Train. Super Birthday shall not be liable to Renter for any loss or damage caused directly or indirectly by the Train, by any inadequacy thereof, or defects therein.
14. Assumption of Risk/Indemnification: Renter assumes all risks inherent to the operation and use of the Train, and shall indemnify, defend and hold harmless Super Birthday, its agents, employees, officers, and assigns from and against, any and all liabilities, obligations, losses, demands, damages, injuries (including, but not limited to, bodily injury, illness and death), claims, penalties, suits, actions, costs and expenses, including attorneys fee, of whatsoever kind and nature, relating to or arising out of the use, condition (including, but not limited to latent and other defects and whether or not discoverable by Renter or Super Birthday), operation, ownership, selection, delivery, renting, or return of the Train, regardless of where, how, and by whom operated, or any failure on the part of Renter to perform or comply with the conditions of the Agreement.
Without limiting the generality of the foregoing, Renter shall, at his or her own cost and expense, defend Super Birthday and its agents, employees, officers, and assigns against all claims, suits or proceedings commenced by anyone in which Super Birthday is named as a party or parties for which Super Birthday is alleged to be liable or responsible as a result of or arising out of use of the Train, or any alleged act or omission by Super Birthday. Furthermore, Renter shall be liable and responsible for all costs, expenses, and attorneys fees incurred in the defense and/or settlement, judgment, or other resolution thereof. In the event any such is commenced naming Super Birthday or its agents, employees, officers, and assigns as a party or parties to a lawsuit, Super Birthday may, in its sole discretion, elect to defend said action on its own behalf and/or on behalf of its agents, employees, officers and assigns, with counsel of its choice, and Renter shall be liable for and reimburse Super Birthday for all costs, expenses, and attorneys fees incurred by Super Birthday in such defense.
The indemnities and assumptions of the liabilities and obligations herein provided for shall continue in full force and effect notwithstanding the expiration or other termination of the Agreement.
15. Reservation: While every effort is made to meet and exceed Renter’s train experience if circumstances prevent Super Birthday from doing so, Super Birthday reserves the right to upgrade the quality of or find substitute equipment. All reservations are subject to verification and approval of the event location and availability from our inventory.
16. Governing Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. Any legal action regarding the interpretation and/or enforcement of this Agreement shall be resolved in the County of Riverside, State of California.
17. Entire Agreement: Notwithstanding the terms and provisions contained herein, this Agreement shall constitute the entire agreement and understanding of the parties hereto and can only be modified in writing by and between Renter and Super Birthday or its authorized agent.
18. Severability: If any provision of this Agreement is held unenforceable, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.