Broadway Media Distribution, Inc. reserves the right, at our discretion, to change, modify, add, or remove portions of the this agreement, of any of its products at any time, to the extent allowed by applicable law. Please check these terms periodically for changes. Your continued use of this website and any products following the posting of changes to these terms will mean you accept those changes. Any rights not expressly granted herein are reserved to Broadway Media Distribution, Inc. This agreement was last updated on February 1, 2020.
The following Rental and Purchase Agreement (this “Agreement”) made and entered into as of the "date purchase" or "date of rental", which for the avoidance of doubt occurs upon (i) submission of order documentation or (ii) payment for any order ("Acceptance Date"), is a binding agreement by and Broadway Media Distribution, Inc. (“BMD”) a California corporation, having its principal place of business at 7575 N Del Mar Ave Ste 107 Fresno, CA 93711 and the "Customer" as listed on the order documentation (“Order Form”) in connection with the terms and conditions hereunder.
This Agreement regarding Customer’s purchase, access and use of projectors, screens, hardware, software and/or accessories, including but not limited to other hardware related items ("Products") and Customer assumes the responsibility to read and understand these terms and conditions and must accept this Agreement and make manifest such acceptance.
WITH THE ACTION OF (i) ACCEPTING THIS AGREEMENT; (ii) ACCESSING OR USING THE PRODUCTS OR ACCEPTING RECEIPT THEREFOR; CUSTOMER ACKNOWLEDGES TO HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREES TO BE BOUND BY THIS TERMS AND CONDITIONS OF THIS AGREEMENT.
Unless terminated as prescribed elsewhere hereunder, this Agreement will become effective on the date it is signed by all parties (the “Effective Date”), as specified on the the "agreement acceptance" section of the Order Form and will continue in effect (i) through the Date of Delivery, (ii) until all warranties and provisions as listed hereunder provided by BMD are completed; (iii) the payment by Customer to BMD for any money due and owing has occurred; or (iv) the Term has expired, whichever occurs last.
I. THE RESPONSIBLE PARTY. For the avoidance of doubt, certain items on the Order Form shall apply to this agreement (i) the “Customer” shall mean the jointly responsible above referenced Customer; (ii) the “contact person” shall be the Authorized Signatory, a duly authorized representative of the Customer.
- RENTAL ITEMS: All Products listed in this Agreement and/or on the Order Form, listed as "Rental Options” are the Rental Items. If selected by the Customer, the Rental Items require full payment of all associated Rental Fees and costs associated and the return of Rented Items as required upon completion of the Rental Term. Further, The Customer agrees to keep and maintain the Rented Items during the terms of the rental at their own cost and expense, and shall keep the Rental Items in a good state of repair.
- PURCHASE ITEMS: All Products listed in this Agreement and/or on the Order Form, listed as "Order Items' are the Purchase Items, and if selected by the Customer, the Products require full payment of all associated fees and costs associated.
III. RENTAL TERMS AND CONDITIONS
- RENTAL PERIOD: Rentals are weekly, Monday to Monday. Customer's Rental Period begins on the first Monday (the “First Date”). The "Start Date" as described on the Order Form shall be the "First Date", and the "Last Date" shall be calculated by the "Total Rental Weeks" from the First Date, resulting in a Monday following the First Date. The dates between First Date and Last Date shall be the Rental Period otherwise acknowledged as the “Rental Term” of this Agreement. For the avoidance of doubt, the First Date shall begin at 5:00 PM of the Customer's time zone or of earlier possession if the Products are delivered at an earlier date. The Rental Items must be delivered to the shipping courier by 12:00 PM PST Monday at the end of Customer's rental dates (the “Return Due Date”). The Products must be returned in their original shipment container, parcel or box(es) to avoid any late fees. If the Products arrive to the Customer more than 24-hours after the expected date of delivery, the total amount due shall be adjusted pro-rata accordingly.
- RENTAL GUARANTEE: All rentals are subject to credit approval and must be secured with a valid credit card.
- LATE RETURNS: If the Rental Items are not scanned by the shipping courier by the Return Due Date of 12:00 PST on the Last Date, late charges are billed to the Customer on a weekly basis for the regular weekly rental cost plus a 10% interest fee for the full period of time until the safe and complete return of the Products. No exceptions.
- RENTAL USE: It is the Customer's responsibility to learn how to use, transport, set up, strike the Product(s) at their Performance Venue/Facility. BMD makes available the appropriate stands, mounts or hanging devices for an additional fee. The responsibilities within the Agreement and/or the Product(s) may not be assigned, transferred, pledged, hypothecated, sublet or lent to anyone without prior written consent of BMD.
- ALTERATIONS: Customer shall not make any alterations, additions or improvements to the Rental Items without written consent.
- REPLACEMENT: The Customer shall pay full compensation for replacement and/or repair of any Rental Item which is not returned because it is lost or stolen or any products which are damaged and in need of repair to put it into the same condition it was in at the time of rental, normal wear and tear excepted. The invoice for replacement or repair is conclusive as to the amount Customer shall pay for repair or replacement. Rental Items must be returned in the same condition it was obtained in. Customer shall indemnify and hold harmless BMD from and against all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses which arise out of, relate to or result from any act or omission related to the Products as included in the Agreement. For the avoidance of doubt, any replacement fee and/or repair fee does not constitute ownership of the damaged materials, and BMD shall have no obligation to provide the damaged products to the Customer upon request or payment.
- RETURN OF PRODUCTS: Customer agrees to return all Rental Items in the same condition as received, reasonable wear and tear excepted. If the Rental Items are not returned in good condition, prorated Rental Fees continue on a daily basis as determined within this Agreement. BMD or its agents' acceptance of the return of the Rental Items is not a waiver by BMD of any claims that it may have against the Customer, including claims for latent damage to the Rental Items. If repairs or replacements are required, Customer agrees to pay all labor, material and shipping charges. Customer shall pay BMD Full Replacement Value as those amounts are set by BMD at a later date, and for the avoidance of doubt, such payment of additional Full Replacement Value fees shall not constitute ownership of the damaged materials.
- Rented Items and their components returned dirty (muddy, etc.), unwrapped, snarled or with tape residue will be subject to a cleaning fee, minimum $25.00 per item. Cleaning fees will be billed to the Customer and paid with the credit card supplied in this Agreement.
- OPERATORS: Unless otherwise mutually agreed in writing, Customer shall supply and pay all operators of the Products during the Rental Period. All operators shall be competent, hold all licenses and/or permits required by law and be employees of Customer during the Rental Period. Customer shall pay all salary or wages and all other applicable costs and shall provide and pay for all worker’s compensation insurance and pay all payroll taxes required by law and applying to such operators and employees.
- LOCATION: Customer shall not remove the Products from the Shipping Location or Performance Venue as listed on the Order Form without the prior written consent of BMD
- NO DAMAGES, ASSUMPTION OF RISK: Customer acknowledges there is a risk of losses, injuries or damages arising from or related to the use or transportation of the Products and assumes all risk of such losses, injuries or damages. Customer for itself and its customers releases BMD and its agents from any and all responsibility or liability for such losses, injuries or damages which Customer or its customers may experience arising from or related to the failure, use, maintenance, storage or transport of the Products.
- CERTIFICATE OF INSURANCE. Prior to the release of rental Equipment and/or Services, Clients must provide BMD with a Certificate of Insurance.
a. Certificate Of Insurance with BMD as Loss Payee. Customer shall have liability insurance no less than $1,000,000 to ensure the full retail value compensation to BMD for any damages or loss of the Rental Items and include the appropriate coverage amount sufficient to cover all liability claims for injuries to others that the Rental Items may cause and shall include the proper insurance to cover any loss incurred as a result of the Rental Items and/or this agreement with BMD. The Customer agrees to hold harmless BMD against any claims related; and BMD reserves the right to obtain a copy of the insurance certificate with BMD included as an "also-insured" party. For the avoidance of doubt, BMD will inspect the Rental Items and any damages or missing materials will be billed to the Customer at full MSRP retail value.
(i) Commercial General Liability: Commercial General Liability insurance covering broad form contractual liability, personal injury liability, advertising injury, completed operation and product liability, with a limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. General Liability coverage may increase depending on the services provided and the usage of the rental equipment.
(ii) Property Coverage Insurance: Property Coverage Insurance covering miscellaneous equipment that is sufficient to cover the full replacement cost of the Equipment. Please include the limits and the deductible of the insurance. Property coverage may come in the following forms: All Risk Policy, Entertainment Package, Inland Marine Coverage, Hired In Equipment, Business Personal Property of Others, Third Party Property, Rented Production Equipment or Rented/Leased Equipment.
(iii) Loss Payee: BMD must be listed as LOSS PAYEE in a certificate issued by Customer's insurance company. If Customer does not have insurance, BMD requires the full replacement value of the rented equipment to be placed on file as a security deposit.
(iv) Certificate of Insurance Required Language: Broadway Media Distribution, Inc. dba Broadway Media is an additional insured on a primary and noncontributory basis with respect to general liability. Waiver of Subrogation is granted in favor of Broadway Media Distribution, Inc. dba Broadway Media with respect to general liability, and workers’ compensation. Broadway Media Distribution, Inc. dba Broadway Media is loss payee as it relates to rented/leased equipment. Certificate Holder Box must read as follows: Broadway Media Distribution, Inc, 7575 N. Del Mar Ave. Ste 107 Fresno, CA 93711.
IV. ADVANCE RESERVATION
- Customer shall place their order for Rental Items at least 4 weeks prior to the First Date. Completion of this Agreement and the payment terms referenced is required on all Rental Items to ensure availability for all customers. Any orders placed less than 4 weeks ahead of the First Date are subject to an additional Rush Order fee, increased shipping charges and risk of inventory availability changes.
- Customer shall place their order for Purchase Items at least 2 weeks prior to estimated delivery date. BMD makes no guarantee for the performance of delivery prior to purchase. If the Products are "out of stock" or unavailable for shipment within 2 weeks of purchase, the sole remedy Recipient shall have is a refund of the actual fees paid to BMD. Any orders placed less than 2 weeks prior to estimated delivery date are subject to an additional Rush Order fee and increased shipping charges.
- BMD accepts payment by check or credit/debit.
- Rental and Purchase Fees are due before shipment. All Rental Orders require a credit or debit card on file for any incidental or late charges. If the rental or purchase pricing changes prior to the date of shipment due to market retail pricing or industry inventory availability, which are beyond the control of BMD, Customer shall be alerted in advance of shipment and shall be granted the right to cancel their order without cancellation fees.
- BMD accepts Purchase Orders as a promise to pay from Government Agencies and Schools within the United States. Purchase Orders are acceptable as a promise to pay the total fees. Invoice payment terms for Purchase Orders is 2/5 NET 15. Payment for invoices is due within 15-days of issue, and Customer can receive a 2% discount on payment received within 5-days. A 1.5% monthly late fee will be accrued on overdue balances, up-to the maximum allowed by law.
- The Customer will be billed $100.00 for all NSF checks in addition to processing fees applicable.
VI. TAXES. The Customer shall pay any taxes related to the purchase, sale, rental, or disposition of the Products. The Customer shall furnish the Company with any tax exemption from taxes as required in the sole judgment of the Company or its counsel. The Company may, without advance notice, charge the Customer sales tax unless the Customer has on file with the Company a valid Exemption Certificate.
VII. ACCEPTANCE. The Customer acknowledges that they will fully inspect the Products within twenty-four (24) hours of delivery and accept the Products in good condition and functioning properly. If the Rental Items are not available due to conditions outside the commercial control of BMD, an alternative “second-best” Product from the listed inventory options shall be delivered and the total amount due shall be adjusted accordingly.
VIII. CANCELLATION. No returns, exchanges or reimbursements permitted. Orders cancelled one business day after the Agreement is executed shall be subject to a cancellation charge of $250.00. Cancellation later than one business day after Agreement execution is subject up to 100% charge, and no refunds shall be given under any circumstances. Cancellations of Rental Items due to acts of God (illness, death, weather, etc) will be charged only actual costs incurred if the rental is rescheduled within six (6) months.
IX: SHIPPING AND DELIVERY
- All Rental Orders require a round-trip shipping charge, as detailed on the order invoice or quotation, no less than $400 unless approved by BMD in advance of the rental reservation or deposit payment. If the order is submitted less than 4-weeks from the First Date, additional shipping and processing charges shall be due, no less than $195 whereas BMD will alert Customer of those additional charges by the date of shipment, which may be up-to 24-hours prior to the First Date.
- BMD provides ground shipping for Purchase Items at the fees listed on the order form, quotation or invoice, and estimates shipping within 2-weeks from the Payment Date or Order Date whichever is later. Customer may pay an additional fee as listed on the Order Form for expedited shipping, and can expect shipping within 1-week from Payment Date.
- Re-delivery due to Customer not being present for delivery or pickup is subject to additional delivery charges of total shipment charges, restocking fee of 10% of the total purchase price and all additional shipment charges for redelivery per the shipping service. The costs associated with the return of Products is the sole responsibility of the Customer.
- Delayed Shipments; Failure to Ship: The Company shall not be liable for damages incurred by the Customer for failure to ship or delay in shipment of any order or part of any order.
- Refusal of Delivery; Returns: The Customer shall not refuse delivery of any shipment from the Company without written authorization. The Customer shall not return Products to the Company without a written Return Authorization Number issued by the Company.
X. CREDIT TERMS. In consideration for the credit that the Company is extending to the Customer for the purchase or rental of the Products, the Customer agrees to the following terms:
- Credit Card Guarantee: Customer's credit card details will be kept on file in the event of loss, damage, or late return. For the purpose of clarity, Customer is responsible for all damages and outstanding balances, which will be billed to the credit card on file, and in Customer's default of the foregoing, all amounts due can be collected civilly.
- Security Interest: To secure payment of all sums now or hereafter owed by the Customer to the Company, the Customer hereby grants to the Company a purchase money security interest in, (i) all the Products now or at any time in the future sold by the Company to the Customer and; (ii)
all proceeds from the sale of the Products by the Customer (the Products and proceeds being referred to together as the “Collateral”). The Customer shall keep the Collateral adequately insured for its fair market value against loss or damage by fire and other perils commonly covered by an Extended Coverage endorsement. If the Customer defaults in the payment of any invoice when due, the Company may exercise all rights and remedies of a secured party under the Uniform Commercial Code and, in addition without limiting its other rights, may enter the premises where the Collateral is located and repossess the Collateral. The Customer, if in default, agrees to execute and deliver to the Company any Uniform Commercial Code financing statements and other documents that the Company may request to perfect or continue its security interest in the Collateral. The Company may file Financing Statements in any jurisdiction where the Collateral is located. If permitted by law, such Financing Statements may be filed without the Customer’s signature or this Agreement may be filed as a financing statement. The Customer shall pay all filing fees and all costs and expenses, including attorney’s fees and disbursements, incurred by the Company in exercising its remedies under the Uniform Commercial Code.
- Attorneys Fees and Costs of Collection: The Customer shall pay all reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in the collection of any sums owed by the Customer to the Company that are not paid when due unless the Customer prevails in a Court of Law. If the Customer fails to pay any invoice to the Company when due, the Company, upon written notice to the Customer, may declare all sums owed by the Customer to the Company to be immediately due and payable, notwithstanding any contrary credit terms contained in any invoice.
- Interest: All sums owed by the Customer to the Company that are not paid when due, including judgements rendered by any court of law, shall accrue interest at the rate of 1.5% per month until paid.
- Upon Customer's default or breach of any provision hereof, or upon the happening of any event expressed in the following paragraph; hereof, BMD shall have, in addition to all legal remedies available to him, the right to take possession of any or all items of Product(s), without demand or notice, wherever the same may be located, without any court order or other process of law and Customer hereby waives any and all damages occasioned by said taking. Further, neither this Agreement nor the Rented Items are assignable or transferable by operation of law, if any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Customer, or if the Customer is adjudged insolvent, or makes any assignment for the benefit of his creditors, of if a writ of attachment or execution is levied on any item or items of the Product(s) and is not released or satisfied within ten (10) days thereafter or if a receiver is appointed in any proceeding or action to which the Customer is a party with authority to take possession or control of any items of the Product(s), BMD shall have and may exercise any one or more of the remedies set forth hereof. This Agreement shall, at the option of the BMD, without notice, immediately terminate and shall not be treated as an asset of Customer after the exercise of said option.
- Upon Customer's default or breach of any provision hereof, or upon the happening of any event expressed in the following paragraph; hereof, BMD shall have, in addition to all legal remedies available to him, the right to take possession of any or all items of Product(s), without demand or notice, wherever the same may be located, without any court order or other process of law and Customer hereby waives any and all damages occasioned by said taking. Further, neither this Agreement nor the Rented Items are assignable or transferable by operation of law, if any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Customer, or if the Customer is adjudged insolvent, or makes any assignment for the benefit of his creditors, of if a writ of attachment or execution is levied on any item or items of the Product(s) and is not released or satisfied within ten (10) days thereafter or if a receiver is appointed in any proceeding or action to which the Customer is a party with authority to take possession or control of any items of the Product(s), BMD shall have and may exercise any one or more of the remedies set forth hereof. This Agreement shall, at the option of the BMD, without notice, immediately terminate and shall not be treated as an asset of Customer after the exercise of said option
- Default: The following constitute “Events of Default” on the part of the Customer;
a. Failure to pay any invoice when due.
b. Breach of any term or condition of this Agreement that continues uncured for more than 10 days after notice of default from the Company.
c. The return of any check issued by the Customer for insufficient funds.
d. The commencement of a case naming the Customer as debtor under the United States Bankruptcy Code or any federal, state, or local law of like import, or the appointment of a receiver or custodian of Debtor or of a substantial portion of Debtor’ assets.
e. Termination for Cause: Upon the occurrence of an Event of Default, the Company may terminate this Agreement upon three days written notice to the Customer.
f. Termination without Cause: Either party to this Agreement may terminate this Agreement at any time upon 30 days written notice to the other. Upon notice of termination, the Company may cancel all outstanding orders from the Customer.
g. Payment in Full due on Termination: Upon giving notice of termination of this Agreement for any reason, all unpaid invoices issued to the Customer, at the option of the Company, shall become immediately due and payable in full, notwithstanding any contrary terms contained in the invoice.
XII. WARRANTY. Though BMD uses its best commercial efforts to ensure that the Products are delivered as advertised, they cannot guarantee the performance of the Products beyond reasonable expectation. Notably, the image output size and brightness may differ insubstantially from the advertised marketing information, and therefore the Customer is recommended to use an independent source to verify information provided herein. BMD makes no warranty of any kind regarding the Products, except that BMD shall replace the Product(s) with identical or similar Product if it fails to operate in accordance with the manufacturer’s specifications and operation instructions. Further, Customer acknowledges and agrees that BMD makes no warranty, express or implied, regarding the equipment, including without limitation any warranty or merchantability or fitness for any purpose. BMD's obligation to Customer shall be limited to the repair or replacement of Products which is defective when delivered to Customer, and Customer agrees that this shall be its sole and exclusive remedy against BMD. Any personal injury incurred during the use or while in possession of our equipment is not the responsibility of BMD. BMD is not responsible for malfunctioning or non-functional Product(s), and will do everything within its commercially reasonable power to provide a replacement item, but not all cases are possible, and if the Products are non-functional, Customer must contact BMD prior to Acceptance describing the issues to qualify for any consideration of a refund or partial refund.
- Limitation of Liability: The Company shall have no liability to the Customer or the Customer’s customer for special, incidental, or consequential damages. The Company shall have no liability to the Customer for loss of prospective profits or damages because of expenditures, investments, or commitments made in reliance upon or in connection with this Agreement.
XIII. INDEMNIFICATION. Upon acceptance by the Customer of the Products, Customer agrees to inspect the Products per paragraph 7. All defects or malfunctions must be reported to BMD within that time frame as listed herein above. To the fullest extent allowed by law, the Customer shall indemnify, defend, save and hold harmless, protect and exonerate BMD and its Board Members, officers, employees, agents, representatives and associates from and against any and all claims, demands, liabilities, actions, suits, proceedings, costs, damages, penalties, losses, and expenses of every kind and nature whatsoever, including without limitation court costs, investigative fees and expenses, attorneys’ fees and disbursements, and claims for damages arising out of, caused, or incurred in connection with the breach by the Customer of any provision of or by this Agreement, the Products, any of the rules or policies established by the manufacturer of the Products, or the Customer and/or its partners, principals, agents, employees or subcontractors.
XIV. ASSIGNMENT. The responsibilities of this Agreement and/or the Product(s) may not be assigned, transferred, pledged, hypothecated, sublet or lent by Customer to anyone without prior written consent of BMD.
XV. APPLICABLE LAW. This Agreement shall be governed and construed according to California law without regard to conflict of laws rules. Any lawsuit brought under this agreement shall be brought only in Fresno County, California or the nearest State or Federal Court. The Customer agrees that a violation of this covenant will bar recovery by the Customer in any other court. The Customer hereby waives trial by jury in any action or proceeding brought in connection with this Agreement.
XVI. NOTICES. All notices, demands, and requests under this Agreement shall be in writing and shall be sent to the Company or Customer at its address listed on the first page of this Agreement or at any other address that it may specify in a notice given according to this Paragraph. Notices may be sent by Certified Mail or by Express Mail or overnight courier.
XVII. COUNTERPARTS. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.
XVIII. ENTIRE AGREEMENT. This Agreement in conjunction with the Order Form constitutes the entire agreement of the parties with respect to the subject matter and may not be amended or modified except in writing after both parties sign.