CARTER’S HOME GYMS LLC
240 Lincoln Place
Westbury, NY 11590
FITNESS EQUIPMENT MEMBERSHIP AGREEMENT
(the “Membership Agreement”)
Name of Member: ________________________________________________________ __
Phone: ________________________________ Email: _______________________________
Credit Card #: ___________________________Exp. Date: ____________
Date of Delivery: ________________________
Term: Commences on ____________, 202___ (the “Commencement Date”) and continues on a
month-to-month basis (the “Term”) for a minimum of three (3) months or until terminated as set forth in the Membership Rental Agreement terms and conditions.
Equipment Rented (the “Equipment”):
- An initial fee of $_________ (sales tax included) shall be due upon delivery of the Equipment to Member (the “Initiation Fee”). Delivery costs are included.
- Each additional monthly fee shall be $_________ (sales tax included) (the “Monthly Fee”).
- A pick up fee of $________ (sales tax included) shall be due upon pickup of the Equipment from the Member (the “Pick Up Fee”). If membership agreement reaches 12 months of rental, the pickup fee will be waived.
- Monthly Fee will be charged upon 30 day termination or cancellation of the Membership Agreement. Once Membership Agreement is terminated, no further addendums or swap-outs of equipment will be applied to the account.
- The Membership Rental Agreement terms and conditions attached hereto are incorporated herein.
- The above-listed Equipment received and accepted by Member.
Carter’s Home Gyms LLC
By: Marc Dern
MEMBERSHIP AGREEMENT TERMS AND CONDITIONS
This Membership Rental Agreement (“Rental Agreement” or “MRA”) is dated as of _____________, 202__ by and between CARTER’S HOME GYMS, LLC, having an office at 240 Lincoln Place, Westbury, NY 11590 (“Lessor”), and ___________________________, residing at __________________(“Lessee”).
In consideration of the mutual agreements set forth below and the payment of rent as provided for herein, and intending to be legally bound, the parties agree as follows:
- RENTAL AGREEMENT. This Rental Agreement establishes the general terms and conditions under which Lessor may from time to time lease equipment and other property to Lessee. The terms of this Rental Agreement together with the Membership Agreement that it is attached to shall be deemed to form the entire agreement between the parties (the “Agreement”). “Equipment” shall mean all items of equipment and other property described in the Membership Agreement.
- TERMS AND RENT PAYMENTS. This Agreement shall become effective when it is signed and accepted by Lessor and shall remain in effect for a minimum of three (3) months and until thirty (30) days after the termination of the Agreement by either Party. Lessee shall pay to Lessor rent (“Rent Payments” or “Monthly Fee”) for each item of Equipment in the amount and at the times specified in the Membership Agreement for such Equipment with a minimum of three (3) months. The Initiation Fee is due on the date Lessor accepts the Lease or any later date designated by Lessor. All subsequent Monthly Fees shall be due from the date Lessee accepts the Equipment. Monthly Fees will be due for successive months until the termination of this Rental agreement. All Payments will be made to Lessor by credit or debit card, or ACH, as set forth on the Membership Agreement or any other place Lessor indicates in writing.
The term of this Agreement shall commence on the Commencement Date of this Agreement and shall terminate when termination notice is provided (“Term”). Unless provided otherwise in the Membership Agreement, if, as of the expiration of the Term, the parties have not agreed to an extension of this Agreement nor to a superseding agreement, then the Term shall automatically renew for successive one
- month periods (each, an “Extension Term”), unless terminated by either Party upon notice to the other not less than thirty (30) days prior to the expiration of the initial Term or the then-current Extension Term Notwithstanding the foregoing, the terms and conditions of this MRA are an integral part of each Membership Agreement and shall continue to apply to and govern any Equipment rented pursuant to such Membership Agreement so long as that particular Membership Agreement remains in effect. Lessor shall have the right (reserving all other remedies and rights whatsoever) to cancel the Equipment Rental, with advance notice, unless specifically provided for herein, for Lessee’s violation of this
- DELIVERY AND ACCEPTANCE. Lessee agrees to accept the Equipment when it is delivered and to sign the Equipment Acceptance supplied by Lessor. Lessee shall be obligated to schedule the return of Equipment to the Lessor when Lessee desires to terminate the Agreement.
- DISCLAIMER OF WARRANTIES. Lessee acknowledges that
Lessor is not the manufacturer of the Equipment, nor the manufacturer’s or vendor’s agent. Nor is the vendor an agent of Lessor. Lessee has selected the
Equipment based upon Lessee’s own judgment. Lessee disclaims any reliance upon any statements or representations made by Lessor and acknowledges that representations made by Vendor, unless specifically contained in this Agreement, shall not be binding upon Lessor. LESSOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER DIRECT OR INDIRECT, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUITABILITY, MATERIALS, DURABILITY, DESIGN, WORKMANSHIP, OPERATION OR CONDITION OF THE EQUIPMENT OR ANY PART THEREOF, ITS MERCHANTABILITY, FITNESS FOR USE FOR THE PARTICULAR PURPOSES AND USES OF LESSEE. Lessor shall not be liable to Lessee for any loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment or for any damages based on strict or absolute tort liability or Lessor’s or vendor’s negligence, or due to the repair, service or adjustment of the Equipment, or by any delay or failure to provide any maintenance, repair, service or adjustment, or by any interruption of service, or for any loss of business however caused.
- TITLE, PERSONAL PROPERTY, LOCATION AND REMOVAL. Lessor owns the Equipment and Lessee has the right to use the Equipment for the full Term provided Lessee complies with the terms and conditions of this Agreement. Lessee will keep and use the Equipment only at the home address as provided on the Membership Agreement. Lessor also has the right, at reasonable times and upon notice, to inspect the Equipment. At the end of term, upon reasonable advance notice, the Lessor may enter the premises where the Equipment is located during normal business hours for the purpose of removal.
- MAINTENANCE. Lessee shall use the Equipment in a careful and lawful manner for personal fitness use only, in compliance with all of the manufacturer’s requirements and recommendations and comply with and conform to all laws, ordinances and regulations related to the possession, use and maintenance of the Equipment. Lessee is required to keep the Equipment in good condition and working order, except for ordinary wear and tear, and further provided that, EXCEPT FOR DAMAGES ARISING FROM LESSEE’S
NEGLIGENCE OR INTENTIONAL MISUSE OF THE EQUIPMENT, LESSOR WILL SERVICE AND REPAIR THE EQUIPMENT, OR, AT
LESSOR’S OPTION, UPON A REPAIR REQUEST BY LESSEE, LESSOR
MAY TERMINATE THE MEMBERSHIP AGREEMENT OR THAT PORTION OF THE AGREEMENT IN RELATION TO THE DAMAGED EQUIPMENT, WITH ANY REMAINING EQUIPMENT RENTAL CHARGES TO BE ADJUSTED BY LESSOR. All replacement parts used or installed and repairs made to the Equipment will become Lessor’s property. Lessee may not, except with Lessor’s prior written consent, make any modifications to the Equipment. Before returning the Equipment, Lessee agrees to remove such modifications and restore the Equipment to its original condition unless otherwise directed by Lessor.
- ASSIGNMENT. LESSEE AGREES NOT TO TRANSFER, SELL, SUBLEASE, ASSIGN, PLEDGE OR ENCUMBER EITHER THE
EQUIPMENT OR ANY OF LESSEE’S RIGHTS UNDER THIS
AGREEMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR COME INTO OR REMAIN IN THE POSSESSION OF ANYONE BUT LESSEE, WITHOUT LESSOR’S PRIOR
WRITTEN CONSENT. No sale, assignment, transfer or sublease, whether authorized herein or in violation of the terms hereof, shall relieve Lessee of its obligations, and Lessee shall remain primarily liable hereunder. Lessee agrees that Lessor may sell, assign or transfer all or any part of this Agreement and if Lessor does, the new owner will have the same rights and benefits that Lessor now has. Any such assignment, sale or transfer of the Agreement or Equipment will relieve
Lessor of Lessor’s obligations to Lessee under the Lease. Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the successors and assigns of the parties hereto and thereto, as the case may be (and, without limiting the foregoing, shall bind all persons who became a “new debtor” to this
Agreement, as defined in Section 9-203(e) of Revised Article 9 of the UCC).
- RETURN AND RENEWAL OF EQUPMENT. So long as no default or event of default shall have occurred and be continuing and the Lessee shall have given Lessor written notice to Lessor at least thirty (30) days prior to the expiration of the initial Term or any Extension Term, Lessee shall advise
Lessor of Lessee’s intention to (i) renew the Agreement on a month to month basis at the same Monthly Fee and due on the same date as during the initial Term; or
- return the Equipment to Lessor at the end of the initial Term or any Extension Term. If Lessee fails to so notify Lessor, or having notified Lessor, Lessee fails to return the Equipment as provided herein, the Agreement shall automatically renew for an additional term of one (1) month, and Lessee agrees to continue to make Monthly Fee payments at the same rate as set forth in the Membership Agreement, subject to the right of either party to terminate any renewal upon thirty (30) days written notice, in which case Lessee will immediately arrange for pick-up of the Equipment by Lessor as stated in this paragraph. Provided Lessee has given such timely notice to return the Equipment, Lessee shall schedule the return and pick up of the Equipment
- LOSS OR DAMAGE. Lessee assumes and shall bear the entire risk of loss or destruction of, or damage to the Equipment from any cause whatsoever, whether or not insured, reasonable wear and tear excepted. Lessee represents and agrees that the Equipment will be covered against loss or peril under Lessee’s policy of homeowner’s insurance. No such loss or damage relieves Lessee from any obligation under the Agreement. Lessee agrees to promptly notify Lessor in writing of any loss or destruction or damage to the Equipment and if such damages are caused by Lessee’s negligence or intentional misuse, Lessee will, at Lessor’s option, be responsible for the costs to (a) repair the Equipment to good condition and working order or (b) replace the Equipment with like Equipment in good repair, condition and working order, acceptable to Lessor and transfer clear title to such replacement Equipment to Lessor, such Equipment shall be subject to the terms of this Agreement and be deemed the Equipment. Lessee agrees that such costs may be charged against any credit or debit card or ACH on file.
- INDEMNITY. Lessee assumes liability for and agrees to indemnify, defend (if requested by Lessor) and hold harmless Lessor and its employees and agents from and against any and all liabilities, losses, damages, penalties, claims, suits and repossession or return of the Equipment, actions, costs and expenses, including court costs and Lessor’s attorneys fees, of whatever kind imposed or incurred by or asserted against Lessor (collectively, “Claims”), whether based on a theory of strict liability or otherwise, caused by or related to (a) the manufacture, selection, purchase, installation, ownership, use, lease, possession, delivery, operation, storage, repair, disposition or return of the Equipment, if due in whole or in part to the action or inaction of Lessee and not wholly caused by Lessor’s negligence or intentional misconduct, or (b) any defects in the Equipment. Lessee agrees to reimburse Lessor for and to defend Lessor against any Claims. This indemnity will continue even after the termination or expiration of the Agreement and repossession or return of the Equipment.
- DEFAULT. An “Event of Default” shall be deemed to exist if any of the following occurs: (a) Lessee fails to pay any Lease Payment or other sum due hereunder within ten (10) days of when due; (b) Lessee fails to observe or perform any other term, covenant or condition of this Agreement, any Lease or any other agreement with Lessor and such failure continues for ten (10) days from the occurrence of such failure; (c) Lessee or any guarantor or surety, if any, dies, or becomes insolvent or unable to pay its debts when due; (d) a writ of attachment or execution is levied upon the Equipment unless released, satisfied or stayed within fifteen (15) days of such levy; (e) the filing by or against Lessee of a petition under the Bankruptcy Code or under any insolvency law provided for relief of debtors unless with respect to a petition filed against Lessee, it is dismissed within forty-five (45) days; (f) the voluntary or involuntary making of an assignment for the benefit of creditors, the appointment of a receiver or trustee for Lessee or for
Lessee’s assets, the commencement of any formal or informal proceeding for dissolution, liquidation, settlement of claims against or winding up of the affairs of Lessee; (g) any representation, warranty or signature herein or made by Lessee or any surety or guarantor of Lessee’s obligations, if any, in any document delivered to
Lessor in connection with this Agreement shall be false or misleading in any material respect when made; (h) Lessee engages in any criminal conduct that subjects the Equipment to seizure and/or confiscation by governmental authorities; or (i) without the prior written consent of Lessor, Lessee attempts to remove, sell, transfer, encumber, part with possession, or sublet any item of Equipment .
- REMEDIES. Lessor has the following remedies if an Event of Default should occur: (a) Lessor may cancel or terminate the Agreement; (b) upon written notice to Lessee, declare the entire balance of any unpaid Monthly Fees immediately due and payable, and any other payments then accrued; (c) charge Lessee interest on all monies due Lessor at the rate of eighteen percent (18%) per annum from the date of default until paid, but in no event more than the maximum rate permitted by law; (d) charge Lessee a return-check or non-sufficient funds charge (“NSF Charge) to reimburse Lessor for the time and expense incurred with respect to a check that is returned for any reason including non-sufficient or uncollected funds, such NSF Charge is stipulated and liquidated at Twenty Five Dollars ($25.00); (e) require that Lessee return the Equipment to Lessor, or to assemble the goods and make them available to the Lessor at a place to be designated by the Lessor which is reasonably convenient to both parties, and in the event Lessee fails to return or make the Equipment available, Lessor may peaceably enter upon the premises with or without legal process where the Equipment is located and repossess the Equipment; and/or (f) apply any security deposit to any amounts owing from Lessee to Lessor. Such return or repossession of the
Equipment will not constitute a termination of the Agreement unless Lessor expressly notifies Lessee in writing. In the event the Equipment is returned or repossessed by Lessor and unless Lessor has terminated the applicable Lease, Lessor will sell or re -lease the Equipment to any persons with any terms Lessor determines, at one or more public or private sales, with or without notice to Lessee, and apply the net proceeds deducting the costs and expenses of such sales or re-lease, to Lessee’s obligations with Lessee remaining liable for any deficiency and with any excess being retained by Lessor. Lessee agrees that if notice of sale is required by law to be given, seven (7) days notice shall constitute reasonable notice.
Lessee is also required to pay (i) all costs and expenses incurred by Lessor in connection with the enforcement of any remedies, including all expenses incurred in connection with the return or other recovery of any Equipment or other collateral, sale, re-lease or other disposition (including without limitation costs of transportation, possession, storage, and refurbishing), and all other pre-judgment and post-judgment enforcement related to actions taken by Lessor, and/or any actions taken by Lessor in any bankruptcy case involving Lessee, this Equipment or other collateral, and (ii) reasonable attorneys’ fees (including consultation, drafting documents, sending notices or instituting, prosecuting or defending litigation or arbitration).
Whenever any Monthly Fee installment is not made within ten (10) days of when due, Lessee agrees to pay Lessor, within one month of the original due date, a late charge of five percent (5.0%) for each delayed payment, as compensation for Lessor’s internal operating expenses arising as a result of each delayed payment, but only to the extent permitted by law. This amount is payable in addition to all amounts payable by Lessee as a result of the exercise of any other remedies.
Lessee agrees that any delay or failure to enforce Lessor’s rights under this Agreement does not prevent Lessor from enforcing any rights at a later time. No right or remedy referred to herein is intended to be exclusive, but each shall be cumulative and shall be in addition to any other remedy referred to above or otherwise available at law or in equity, and may be exercised concurrently or separately from time to time. With respect to any exercise by Lessor of its right to recover and/or dispose of any Equipment or other collateral securing Lessee’s obligations under any Lease, Lessee acknowledges and agrees that: (i) Lessor shall have no obligation, subject to the requirements of commercial reasonableness, to clean up or otherwise prepare the Equipment or any other collateral for disposition; and (ii) Lessor may comply with any applicable state or federal law required in connection with the disposition of the Equipment and any actions taken in connection therewith shall not be deemed to have adversely effected the commercial reasonableness of any disposition of such Equipment and/or other collateral.
- ENTIRE AGREEMENT; SEVERABILITY; WAIVERS. This Agreement, together with the Membership Agreement, contains the entire agreement and understanding of the parties hereto. No agreements or understandings are binding on the parties unless set forth in writing and signed by the parties. Any provision of this Agreement which for any reason may be held unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective without invalidating the remaining provisions of this Agreement.
- CHOICE OF LAW. This Agreement was made in the State of New York; and is to be performed in the State of New York by reason of the Monthly Fees Lessee is required to pay Lessor in the State of New York. This Agreement shall in all respects be interpreted and all transactions subject to this Agreement and all rights and liabilities of the parties under this Agreement and all Leases shall be determined and governed as to their validity, interpretation, enforcement and effect by the laws of the State of New York except for local filing requirements. Lessee consents to and agree that personal jurisdiction over Lessee and subject matter jurisdiction over the Equipment shall be with the Courts of the State of New York, venued in Nassau County, or the United States District Court for the
Eastern District of New York solely at Lessor’s option with respect to any provision of this Agreement. LESSEE ALSO WAIVES LESSEE’S RIGHT TO A
TRIAL BY JURY.
- REPRESENTATIONS AND WARRANTIES. Lessee warrants and represents to Lessor that (a) the Equipment will be used solely for personal fitness
use, (b) Lessee’s full and accurate legal name is as first provided above, and
(c) Lessee has the power and capacity to enter into this Agreement, all documents
related to the rental of the Equipment and any other documents required to be delivered in connection herewith.
- UCC FILINGS. Lessee authorizes Lessor to file a financing statement with respect to the Equipment with or without Lessee’s signature where permitted by the UCC and grant Lessor the right to sign such financing statement on Lessee’s behalf. The filing of a financing statement is not to be construed as evidence that any security interest was intended to be created, but only to give public notice of
Lessor’s ownership of the Equipment. If the Agreement is deemed at any time to be one intended as security then Lessee grants Lessor a first priority security interest in the Equipment together with all additions, accessories, attachments and accessions thereto and security deposits relating thereto, and any and all substitutions, replacements or exchanges for such item of Equipment, in each such case in which Lessee shall from time to time acquire an interest, and any and all proceeds (including insurance proceeds) of the Equipment and other collateral in and against which a security interest is granted hereunder. Lessee will promptly execute, or otherwise authenticate, and deliver to Lessor such further documents, instruments, assurances and other records, and take such further action as Lessor from time to time may reasonably request in order to carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created in favor of Lessor under the Documents (including without limitation (i) lien searches and (ii) such UCC financing statements, fixture filings and waivers as reasonably may be required by Lessor in connection with any change in circumstances relating to Lessee, the Equipment or otherwise); provided, however, Lessee hereby authorizes Lessor to file any and all of the same without Lessee’s authentication, to the extent permitted by applicable law.
- NOTICE. All notices must be in writing and will be deemed to have been given when delivered in person or if sent by certified mail, postage pre-paid return receipt requested, or by reliable nationally recognized overnight courier, addressed to the recipient at its address above or at any other address subsequently provided in writing.
- UCC – ARTICLE 2A PROVISIONS. Lessee agrees that this Agreement is a “finance lease” as that term is defined in Article 2A of the Uniform Commercial Code (“UCC”). Lessee acknowledges that Lessor has given Lessee the name of the supplier or manufacturer of the Equipment for each Lease. Lessor hereby notifies Lessee that Lessee may have rights under the contract with the Supplier and Lessee may contact the Supplier for a description of any rights or warranties that Lessee may have under this supply contact. Lessee also waives any and all rights and remedies granted Lessee under Sections 2A-508 through 2A-522 of the UCC.
THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY LESSOR.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date first set forth above.
CARTER’S HOME GYMS, LLC
Name: Marc Dern