Rental Agreement
Thank you for your interest in Vivant Dolls (the terms "Vivant," “we”, “us” and “our” also refer to Vivant Dolls).
This lease agreement (the “Lease”) is entered into by and between Vivant Dolls and you and sets forth the terms and conditions under which you may rent any Item (as that term is defined below) from us. Together with our Terms of Service and our Privacy Policy, each of which is incorporated herein by reference as though set forth in full, this Lease governs your use of our website (the “Site”) and your rental of any Item. By visiting this Site, clicking the “CHECKOUT” button in your shopping cart and/or requesting the delivery of any Item (whether through this Site or otherwise) you agree to be bound by the terms and conditions of this Lease and you acknowledge that you have read and understood each of these terms and conditions. Any irreconcilable conflict between this Lease and the Terms of Service and/or the Privacy Policy is unintentional and, with respect to the lease of any Item by you, the terms of this Lease shall control. It is your responsibility to read this Lease, the Terms of Service and the Privacy Policy before using this Site and/or renting any Item. Vivant may at any time and in its sole discretion modify and amend this Lease without notice.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows:
1. Leased Item(s).Vivant Dolls hereby leases to you, and you hereby lease from Vivant Dolls, the product(s) set forth on the checkout page of your order (the “Item” or “Items”).
2. Rental Period. You may request a specific rental period by making a reservation either through the calendaring system on our Site or directly with us in writing (the “Reservation”) and we will use commercially reasonable efforts to deliver the Item at the start of that Reservation, although we do not guarantee it. The rental period shall commence when the Item is first delivered into your possession and shall expire at the end of your allotted time period, as set forth in the checkout page of your order or as otherwise memorialized between us (the “Rental Period”). By way of example only, if you scheduled a 2-hour rental commencing at 8 pm and the Item was first delivered into your possession at 9 pm, then the Rental Period would commence at 9 pm and expire at 11 pm. Overnight or longer rentals shall expire at noon (12pm) on the final day. We may terminate this Lease immediately upon notice to you if you materially breach, or we have reason to believe that you have materially breached, any term of this Lease and/or the terms of Service, in which case the Rental Period shall terminate immediately upon such notice.
3. Rent. Your rental fee is the total amount set forth on the checkout page of your order or as otherwise agreed by us in writing, plus any delivery fee (the “Rent”). We may require you to pay, or you may choose to pay, all or any portion of the Rent in advance upon booking. Any amount(s) not paid in advance upon booking shall be due and payable immediately upon delivery of the Item.
4. Security Deposit. In addition to Rent, Vivant may require a security deposit in an amount set forth on the checkout page of your order (the “Security Deposit”). If the Security Deposit is made by credit card, you agree that an authorization hold may and will be placed on the credit card in the full amount of the Security Deposit. You acknowledge and understand that these funds will not be available for your use unless and until released in accordance with the terms of this Lease and the terms of your financial institution.
5. Disclaimer of Warranties. You acknowledge and agree that you have selected and will use any and all Items using your own knowledge and judgment and you further acknowledge and agree that while Vivant Dolls or its representatives may have provided assistance or recommendations to you at your request, we assume no responsibility for any Item as being fit for any particular purpose and we disclaim all warranties, whether express or implied. All items are provided “as is” and “as available,” without any representations, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title and/or non-infringement and any warranty arising out of prior course of dealing and/or usage of trade. In particular, but without limitation, we make no representation and extend no warranty concerning whether any Item is fit for any particular purpose.
6. Use; Assumption of Risk; Limitation of Liability; Release of Claims. You acknowledge and agree that whether, how and to what extent you use any Item rented from Vivant is entirely your own decision. You understand and appreciate all of the risks associated with your use or possession of any Item(s), including the risks of injury, illness, and damage. YOU AGREE TO AND HEREBY DO ASSUME ALL RISK ASSOCIATED WITH THE USE OR POSSESSION OF ANY ITEM(S) RENTED FROM VIVANT. You agree to use any Item(s) in a careful, safe and appropriate manner in compliance with any and all national, state, municipal and other laws, regulations and/or codes in any way relating to the possession, use or maintenance of any Item. You shall make no alterations, modifications, repairs or changes of any kind to any Item. We shall not be held responsible with respect to any damages arising from or related to your possession, transport or use of any Item, which you hereby acknowledge, represent and agree is voluntary, informed and in all instances completely and exclusively at your own risk. In no event, to the maximum extent permitted by law, shall Vivant Dolls, our owners, members, directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers, licensors, insurers or agents be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your possession or use of any Item, even if we were advised of their possibility. In no event, to the maximum extent permitted by law, shall the total liability of Vivant Dolls, our owners, members, directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers, licensors, insurers and/or agents (collectively, the "Released Parties") exceed the Rent actually paid by you hereunder. Without limiting the generality of the foregoing, you do hereby waive, release, and forever discharge each of the Released Parties from any and all responsibilities, claims or liability for injuries or damages resulting from your possession or use of any Item, including those caused by the negligent act or omission of any of the Released Parties or others acting on their behalf. You hereby waive and release any claim that the foregoing exclusions, limitations of liability and/or release deprive you of an adequate remedy or cause this Lease to fail of its essential purpose. [jre was here] You acknowledge that these exclusions, limitations of liability and release are fundamental elements but for which Vivant Dolls would not enter into this Lease or lease any Item to you.
7. Used Item; Duty to Timely Report Defects. You acknowledge that an Item may be used, may be cosmetically or otherwise flawed and that we are not obligated to provide you with a new Item. Should you discover that an Item, as received, is not in working condition or is damaged in any way, you agree to notify us immediately but in no event later than thirty (30) minutes following the start of the Rental Period. If you timely notify us and/or we determine in our reasonable business judgment that the Item is not in working condition and/or was damaged prior to the start of the Rental Period, then, at our option, we will either replace the Item with a functioning equivalent at a later date and time or issue you a credit or full refund of any Rent paid and cancel the Reservation. If you fail to timely notify us, you will be deemed conclusively and without appeal to have acknowledged that each Item was received in good working condition without material defects and to have waived any and all claims for a full or partial refund of any Rent paid or any defenses to any other amounts due and owing from you in accordance with the terms of this Lease based on alleged defects.
8. Substitution of Item(s). If the specific Item(s) you have requested to rent is/are not available for any reason, we reserve the right to substitute an alternative Item(s) of comparable quality, with or without notice to you, and such substitution shall not constitute a breach of this Lease.
9. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to rent. Vivant reserves the right at any time after receipt of your order to accept or decline your order, to substitute an Item(s) in your order and/or to supply less than the quantity ordered of any Item(s) for any reason.
10. Late Delivery. We will use commercially reasonable efforts to deliver the Item(s) at the scheduled start of the Reservation, but we do not guarantee it. In the event that a delivery will be late, we will use commercially reasonable efforts to notify you. You may not cancel or purport to cancel a Reservation unless and until we are more than four (4) hours late.
11. Cancelation By You - Cancelation Fee. If, for any reason whatsoever, you cancel a Reservation or fail to appear for a Reservation or make yourself unavailable to accept delivery, as the case may be, then you will be charged a cancelation fee as follows (the “Cancelation Fee”):
a. If notice of cancelation is given at any time more than twenty-four (24) hours before the scheduled start of your Reservation, a Cancelation Fee equal to the greater of any delivery fee or twenty five percent (25%) of the applicable Rent; or
b. If notice of cancelation is given at any time less than twenty-four (24) hours but more than eight (8) hours before the scheduled start of your Reservation, a Cancelation Fee equal to the greater of any delivery fee or fifty percent (50%) of the applicable Rent; or
c. If notice of cancelation is given at any time less than eight (8) hours before the scheduled start of your Reservation, or in the case that you fail to appear or make yourself unavailable to accept delivery (such as a "no call/no show" for a scheduled appointment), a Cancelation Fee equal to one hundred percent (100%) of the applicable Rent.
To be valid, a notice of cancellation must be made in writing to us at the email address or phone number (via text) displayed on our Site. Any notice of cancellation made after 11pm will be deemed given as of 9am the following day. You acknowledge and agree that the Cancelation Fee constitutes liquidated damages, is not a penalty and is fair and reasonably tailored to compensate us for the damages caused by your cancelation, including but not limited to compensation for our time and expense spent communicating with you and/or preparing your order, the loss or potential loss of rental income incurred by reserving a specific date and time for you to the exclusion of others, our time spent responding to your cancelation, our increasing inability to mitigate damages based on progressively shorter notice of cancelation, the fees that we will incur from our payment processor as a result of your cancelation and any associated refund(s) and/or damage to our credit score, our business relationship with our credit card processors or goodwill. If you have made payment prior to your Reservation, the amount of the payment less the Cancelation Fee will be refunded to you within fifteen (15) business days. You hereby agree not to dispute any Cancelation Fee with your bank or credit card provider (such as seeking a so-called "chargeback") and you further acknowledge and agree that if you do dispute any Cancelation Fee you shall be liable to us for an additional one thousand dollars ($1,000) plus our costs of collection (including reasonable attorney fees), as compensation for costs incurred by us in responding to your dispute, loss of goodwill with our lender(s) and damage to our reputation and credit score, which you agree is liquidated damages and is not a penalty.
12. Cancellation by Vivant and/or Failure to Deliver. We may cancel your reservation at any time and for any reason, or fail to deliver the Item(s) for any reason, and you agree that our sole liability to you shall be to refund any amounts previously paid to us. Whether we cancel your reservation or fail to deliver, we shall have no other or further liability to you of any kind or nature.
13. No Attempted Repairs by You. You agree not to attempt to repair or materially alter any Item under any circumstances regardless of fault and to notify us immediately of any damage.
14. Loss and Damage to Items. YOU ASSUME AND SHALL BEAR THE ENTIRE RISK OF LOSS AND/OR DAMAGE TO ANY ITEM FROM ANY CAUSE OR SOURCE WHATSOEVER, FROM SUCH TIME THAT YOU TAKE POSSESSION AND CONTROL OF THE ITEM UNTIL SUCH TIME AS VIVANT DOLLS HAS INSPECTED THE ITEM FOR DAMAGE AT ITS FACILITY (THE "RETURN INSPECTION"). Without limiting the generality of the foregoing, you assume the entire risk of loss and/or damage caused in any way and by anyone during or in connection with both (i) your possession, use, transportation or handling of any Item and (ii) the possession, use, transportation or handling of any Item by a Vivant representative to or from a remote location to the location at which the Return Inspection takes place. By way of example only, should you return an Item to a Vivant representative at your home, you shall continue to bear the entire risk of loss and/or damage to such Item at all times until such time as the Return Inspection actually takes place at Vivant's inspection facility. You agree that this is a fair and reasonable allocation of risk and is a material inducement to Vivant Dolls renting the Item to you. For avoidance of doubt, the physical acceptance of an Item upon its return by you at any time prior to a Return Inspection shall not represent any determination as to the condition of the returned Item or foreclose us from asserting any damages; instead we reserve the right to inspect the Item at our facility within a reasonable time after the return of the Item and to then and only then make a determination as to whether such returned Item was damaged, which determination you agree is final and binding. In the event of loss or damage that, in our reasonable business judgment, cannot be repaired or can only be repaired for fifty percent (50%) or more of the replacement cost of the Item, the damages shall be equal to the replacement cost of the Item. In the event of damages that can be repaired for less than fifty percent (50%) of the replacement cost of the item, the damages shall be equal to the actual cost of repair; provided, however that we may, in our reasonable business judgment, estimate the damages in advance (and if the actual cost is less, then the difference will be refunded to you following repair). The cost of repair includes (i) labor at the greater of $75 per hour or the then-prevailing rate for a local repair professional with experience repairing silicone and TPE material, (ii) the cost of materials and (iii) transportation costs. The replacement cost will be manufacturer’s list price for a new Item or comparable Item at the time of the loss or damage plus an additional thirty-five percent (35%) for shipping, restocking and lost profits (which you agree is a fair and reasonable estimate of the economic loss suffered by Vivant Dolls and is liquidated damages and not a penalty). Without prejudice to our other rights and remedies, you hereby authorize us to recoup, offset and deduct any and all such amount(s), including any estimated damages (collectively, the “Preliminary Damages”), from your Security Deposit or, if a Security Deposit was not taken or is insufficient, you hereby authorize us to charge such amount(s) to your credit card on file. No loss or damage to any Item shall excuse your payment obligations or any other obligations you owe to us under this Lease. Without limiting the generality of the foregoing, you agree not to (i) stand or attempt to stand the doll on any surface, (ii) place the doll on any surface other than a clean bed or the carrying case that came with the doll (and never under any circumstances on a floor or carpet), and (iii) dress the doll in any clothing other than the clothing with which it was delivered to you.
15. Surrender. Immediately upon the expiration or earlier termination of the Rental Period, you shall surrender possession and return to us each Item in as good repair, condition and working order as when first delivered to you. Should you fail to do so, in addition to our other rights and remedies hereunder, we shall have the right to charge you additional rent for the full duration of any additional time period(s) during which the Item has not been surrendered and returned to us, at the then-prevailing rental rate (the “Additional Rent”), up to and including the full replacement cost of the Item, and such period until the Return Inspection has taken place shall be considered an extension of the Rental Period. You are responsible for removing any accessories, products or other personal property of any kind from an Item prior to returning such Item to us and we shall have no liability to you if you fail to do so. You shall ensure that each Item is returned to us clean and, should any returned Item be deemed dirty in our sole and exclusive judgment, we reserve the right to charge you a “Cleaning Fee” the amount of which will be determined in our reasonable business judgment. Should an Item smell like smoke upon its return by you, the Cleaning Fee shall be a minimum of $50.
16. Indemnity. You shall defend, indemnify and hold harmless Vivant Dolls (and its parents, subsidiaries, affiliates, owners, managers, officers, directors, partners, employees, insurers and agents) from and against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including its attorney's fees and costs, arising out of, connected with, or resulting from your breach of any obligation hereunder and/or your use or possession of any Item.
17. Authorization to Charge Your Credit Card. Your Security Deposit will be refunded or released only if and to the extent, each Item is timely returned in an undamaged condition, as determined solely by us in our reasonable business judgment following our acceptance and inspection of each Item as set forth above. If an Item is not timely returned, is lost and/or is returned damaged, you hereby authorize us to recoup, offset and deduct our damages from the Security Deposit or, if a Security Deposit was not taken or is insufficient, to charge to your credit card on file an amount equal to our damages, in addition to and without prejudice to our other rights and remedies at law and in equity. Without limiting the generality of the foregoing, you hereby expressly authorize us to deduct from your Security Deposit and/or charge to your credit card on file any applicable Cancelation Fee, Cleaning Fee, Additional Rent and/or Preliminary Damages as determined by us in accordance with the terms of this Lease. You acknowledge and agree that (i) such charges are a fair and reasonable estimate of the damages suffered by Vivant Dolls, (ii) such charges are not a penalty, and (iii) you will not contest such charges with your credit card provider, payment processor or otherwise. You acknowledge and agree that we may share this express written authorization, and any other pertinent terms and conditions of this Lease and/or our business transaction with you, with your credit card provider and/or our payment processor for the purpose of demonstrating our ability to make these charges to your credit card and your waiver of your right to contest those charges. Any Security Deposit (or any portion thereof) shall not be remitted to you or otherwise released unless and until we have had a reasonable opportunity to inspect and test each Item following its return or to take any authorized deductions from the Security Deposit in accordance herewith, as the case may be.
18. Bankruptcy. Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against you, or if you are adjudged insolvent, or if you make any assignment for the benefit of creditors, or if a writ of attachment or execution is levied on the Item and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which you are a party with authority to take possession or control of the Item, then Vivant Dolls shall have and may exercise the option to, without notice, immediately terminate this Lease and take possession of any Items. This Lease shall not be treated as your asset.
19. Ownership. Each Item is, and shall at all times be and remain, the sole and exclusive property of Vivant Dolls. You shall have no right, title or interest therein or thereto except as expressly set forth in this Lease.
20. Delivery. Any delivery and/or return for outcall rentals must be arranged separately at your cost and expense, on terms acceptable to us.
21. Exclusive Possession; Non-Assignability of Lease. You shall not sublease, loan or relinquish possession of any Item to any third party, nor assign or purport to assign this Lease to any third party, and each Item shall at all times remain under your immediate, sole and exclusive control.
22. No Photos or Video. As an express condition to entering our physical store location or any other facility operated by us, you agree that you will not take any photos or videos whatsoever inside of our physical store location or any other facility operated by us, without our prior written agreement. As an express condition of any rental, you agree that you will not take any photos or videos whatsoever of the doll or any accessories or components associated with the doll, without our prior written agreement. You agree that if you breach any term of this provision, you shall pay to Vivant Dolls immediately upon demand the sum of $5,000. You agree that this amount is a fair and reasonable estimate of the damages caused to Vivant Dolls by your breach of this provision, including but not limited to invasion of privacy and theft of intellectual property, and does not constitute a penalty nor will you take any action to challenge this provision or the amount of liquidated damages set forth herein.
23. Force Majeure. With the exception of any payment obligations that you owe to us, neither party shall be liable for failing to perform its obligations hereunder, where delayed or hindered by war, riots, embargoes, pandemics, strikes, acts of a party’s vendors or suppliers, accidents, acts of God, pervasive internet failures or any other event beyond such party’s reasonable control.
24. Notices. Any notice to you under this Lease shall be sufficient if delivered to you through the contact information submitted through the Site upon checkout (including via your email; via certified mail at your address, and via text to your phone number). You may give notice to Vivant Dolls only in writing at the number and/or email address displayed from time to time on the Site.
25. Chargebacks. You hereby agree not to dispute with your credit card company, at any time or for any reason, any fees or charges incurred by you under this Lease including, without limitation, any Rent, any Cancellation Fee and/or any other amounts charged to you, whether in whole or in part (as the case may be, a "Chargeback). If at any time and for any reason you seek a Chargeback, you will pay immediately to Vivant Dolls upon demand an amount equal to (x) the Chargeback amount plus (y) an additional one thousand dollars ($1,000) (collectively, the "Damage Amount") as liquidated damages, consisting of, among other things, compensation for our time responding to your dispute, the fees that we will incur from our payment processor as a result of your dispute, damage to our credit rating and increased credit card processing fees and costs, and/or damage to goodwill. You expressly acknowledge and agree that (i) the Damage Amount is fair and reasonable and is not a penalty, (ii) you will pay the Damage Amount within one (1) business day following demand from us, which demand may be provided by email, text or phone at the contact information set forth in your order and (iii) should you not make timely payment, we are authorized to charge the Damage Amount to your credit card, debit card or other payment source on file.
26. Governing Law and Dispute Resolution. This Lease shall be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of law provisions. We agree that the state and federal courts located in Los Angeles, California shall have sole and exclusive jurisdiction over any dispute between us relating to the terms of this Lease. All of Vivant Doll's remedies are cumulative and may be exercised concurrently or separately. You shall pay and be liable for all reasonable attorney fees and costs and/or costs of collection incurred by Vivant Dolls, in the protection of its rights and remedies under this Lease, including but not limited to any action taken by Vivant Dolls to collect any amounts due under this Lease.
27. Age. By entering into this agreement you are representing and warranting to us that you are at least eighteen (18) years of age. If you are under eighteen (18) years of age, you may not rent any Item and this Lease shall be null and void.
Please contact us at vivantdoll@gmail.com with any questions regarding this Lease, which is a binding legal agreement between us.