The following rental agreement (the “Agreement”) between you (“you” or “Renter”) and Zest Marketplace, LLC (“Zest”) describes the terms and conditions (the “Terms”) governing your rental of accessories from Zest. By renting an accessory or accessories (the “Accessories”) from Zest, you acknowledge that you have read, understood, and agreed to be bound by these Terms.
I. RENTAL OF ACCESSORIES
A. General Conditions
1. 18 YEARS OR OLDER. Accessories may be rented for use by individuals under 18 years of age, but Zest rents only to adults, who may rent the Accessories with a payment card or other approved payment method. By clicking “I agree to these Terms”, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting the Accessories as described in these Terms.
2. RENTAL LIMITS. You acknowledge and agree that Zest may place limits on the rental of Accessories, including but not limited to restricting orders placed under a single customer account, payment card, or billing or shipping address. Zest reserves the right to limit, cancel or prohibit any rentals of Accessories for any reason and at any time, including without limitation availability concerns or rental history of a customer.
3. GEOGRAPHIC LIMITS. At this time, Zest will only deliver Accessories to valid shipping addresses in North Carolina or South Carolina. Accessories may be used in other states. B. Ordering, Fees, Delivery, and Returns
1. RENTAL PERIOD. Accessories may be rented for 4-day or 8-day periods on Zest’s website zestmarketplace.com (the “Site”). To inquire regarding renting for a longer period, please contact Zest directly. The rental period begins running on the delivery date you designate when renting your Accessory (the “Designated Delivery Date”). Zest may deliver your Accessory before the Designated Delivery Date, but your rental period will not begin to run until the Designated Delivery Date.
2. RENTAL FEE. The “Rental Fee” for the Accessory will be the total of the rental fee and delivery charges listed on the Site for your rental of the Accessory. When you place your rental order for an Accessory, you hereby authorize Zest to charge your payment card for the Rental Fee plus applicable sales tax. Zest will charge your payment card the amount of the Rental Fee immediately upon your rental order. A reservation of an Accessory on the Site is an order for the rental of that Accessory, regardless of how far in advance the Accessory is reserved. In addition, at the time of your rental order for an Accessory, you hereby authorize Zest to charge your payment card for an amount equal to the Replacement Value (as defined below) plus applicable sales taxes; provided that Zest will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Zest, shall be paid by you to Zest in connection with your rental order. The Replacement Value of each Accessory as defined and determined by Zest below is not subject to dispute by you and by agreeing to rent such Accessory you hereby agree to such Replacement Value.
3. METHOD OF PAYMENT. Zest accepts payment from the following credit cards: AMEX, Visa, MasterCard, and Discover, and through PayPal and Apple Pay. Zest’s Site is hosted by Shopify Inc. (“Shopify”) an online e-commerce platform. All payments made on the Site will be processed through Shopify’s platform.
4. CANCELLATION POLICY. You may cancel your rental order subject to the following cancellation fees and policies: (a) If you cancel fourteen (14) or more days in advance of the Designated Delivery Date, there is no cancellation fee and you will receive a full refund issued to the payment card you used for the order. (b) If you cancel less than fourteen (14) days but more than seven (7) days in advance of the Designated Delivery Date, you will not receive any refund, but you will receive a full credit to your Zest account for the Rental Fee associated with the cancelled order. This credit can be applied to any future Zest rental. (c) If you cancel seven (7) or fewer days in advance of the Designated Delivery Date and you Accessory has not already been shipped by Zest, you will receive a credit to your Zest account for the Rental Fee associated with the cancelled order, minus a cancellation fee of $10.00. (d) Zest typically ships your Accessory two (2) business days prior to the Designated Delivery Date and any cancellation after the Accessory will not result in any refund or credit.
5. DELIVERY. Your Accessories may be ordered and couriered to you on the following day for certain orders placed by 2 p.m. for delivery in Charlotte, North Carolina, subject to an additional delivery charge specified on the Site for expedited deliveries. Otherwise, all deliveries will be through Zest’s shipping partners, which may change from time to time at Zest’s discretion. The shipping method used will be at the discretion of Zest. At this time, Zest will only deliver to valid shipping addresses in North Carolina or South Carolina.
6. RECEIPT OF THE ACCESSORIES. Upon delivery, you bear responsibility for the Accessories. You acknowledge that a Secure Shipping Address is highly recommended. A “Secure Shipping Address” means a location where an individual can physically receive Accessories. In the event that an un-secure shipping address is provided, Zest does not bear liability for Accessories left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Zest will not be liable. You will be liable for all such delays and additional delivery fees.
7. RETURN PACKAGING. With delivery of an Accessory, Zest will provide you with a pre-paid, pre-addressed box or mailing envelope, as well as instructions for your use in returning the Accessories to Zest (“Return Packaging”).
8. USE OF THE ACCESSORIES. You agree to treat the Accessories with great care, as if they were borrowed from your close friend. You are responsible for loss, destruction or damage to the Accessories due to theft, mysterious disappearance, fire, breakage, loss of material components, stains, or any other cause, other than normal wear and tear. Normal wear and tear encompasses, missing beads, or other minor damage in each case which do not change the appearance of the Accessory. If you return an Accessory that is damaged beyond normal wear and tear, then you agree that Zest shall charge you, and you shall pay, for the price of repairing or replacing the Accessory, as determined in Zest’s discretion, up to the Replacement Value of the Accessory. Zest shall determine in its sole discretion whether any damage to any Accessory is considered normal wear and tear or beyond normal wear and tear and such determination shall be binding and conclusive on you. Additionally, you agree that you shall not use the Accessories for any use other than your own personal use as such Accessory is intended for.
9. RETURN OF THE ACCESSORIES; EXTENSIONS. You agree to return the Accessories to Zest in the Return Packaging on or before the return date for the Accessories that is identified in the online invoice for your order (the “Return Date”). You must return the Accessory by delivering the Accessory in the Return Packaging to a UPS store or such other delivery service that the Return Packaging has been provided for, in each case located in the United States by 12 p.m. on or before the date that the Accessory is due. You may extend your order for an Accessory on the Site or by phone to Zest; provided that any extensions are subject to other orders for that Accessory and to pre-payment of the additional Rental Fee applicable to that Accessory for the period of time of the extension.
10. LATE FEES. If you return an Accessory late or not at all, a late fee of ten dollars ($10.00) will be charged for the first day that that such Accessory is late, twenty dollars ($20.00) for the second day that it is late and twenty-five dollars ($25.00) for each day thereafter that it is late and such charges will be charged to the payment card you used to pay the Rental Fee or to any other payment card included in your account information that you have provided to Zest for every day that you are late returning an Accessory, and you agree to pay such late fees, up to an amount not to exceed the Replacement Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each Accessory that is not returned when due. If you have not returned an Accessory within twenty (20) days after the Return Date for the Accessory, Zest will charge your payment card the maximum late fee set forth in this Section 10, less any late fees that you have already paid, plus applicable sales tax. Zest’s charging you the maximum late fee does not extinguish your obligation to return the Accessory, nor does it affect Zest’s right to pursue return of the Accessory.
11. PAYMENT OF REPLACEMENT VALUE. With respect to each Accessory, Zest will not charge you for more than an amount equal the (a) the greater of ten times the Rental Fee (for a four day rental) for such Accessory and the approximate cost to Zest to buy new and replace such Accessory as determined in Zest’s sole discretion (such greater amount, the “Replacement Value”) plus (b) the Rental Fee, in the aggregate, for any charges arising under this Section I(B), excluding collection costs. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section I(B).
12. LOST RETURN PACKAGING. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the Return Date, and providing Zest with a tracking number.
13. COLLECTIONS. If you do not pay the amounts you owe to Zest when due, then Zest may institute collection procedures. You agree to pay Zest’s costs of collection, including without limitation its reasonable attorneys' fees.
14. TITLE. You agree that at all times the Accessories shall remain the property of Zest and you do not have any right and title to the Accessories except for the temporary rental of thereof under the terms and conditions of this Agreement.
II. LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties The following are the limited warranties Zest provides in connection with Accessory rentals: CORRECT ACCESSORIES. Zest will deliver the Accessories you ordered on or before the Designated Delivery Date for which you ordered them, except in the rare event that an Accessory is damaged beyond repair or is otherwise unavailable. In such event, Zest will use reasonable efforts to notify you that the Accessory is unavailable. If Zest is able to reach you, you will be entitled to choose any available rental Accessory to replace the unavailable Accessory. If Zest is unable to reach you, you acknowledge and agree that Zest may send you a replacement Accessory of the same or greater value. Accessories may appear different in color and style than as displayed on the Site. CLEAN AND READY TO WEAR. The Accessories will be cleaned and delivered ready to wear. Zest inspects each Accessory with the utmost care, but use of the Accessory is at your own risk and Zest shall not be held liable for any health-related complaints associated with any Accessory. Zest’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Accessories conforming to the warranties or a refund of the Rental Fee (excluding delivery charges), as determined by Zest. The limited warranties set out in this Section for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by Zest in connection with its service or the Accessories. The limited warranties shall not apply to any matters arising from your violation of these Terms. Your sole and exclusive remedy and Zest’s sole and exclusive liability for a breach by Zest of the limited warranties set out in this Section shall be, at Zest’s option, Zest’s use of its commercially reasonable efforts to replace the non-conforming Accessory in a timely manner or a refund of your Rental Fee, as applicable (excluding delivery charges).
B. Disclaimer of Warranties EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION II(A), THE SERVICES AND ACCESSORIES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, ZEST DOES NOT WARRANT THAT DEFECTS WILL BE CORRECTED OR THE ACCESSORIES WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO TRANSACTIONS IN JURISDICTIONS WHERE IT IS PROHIBITED BY LAW. C. Limitation of Liability UNDER NO CIRCUMSTANCES SHALL ZEST BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE, OR OTHER DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE ACCESSORIES, EVEN IF ZEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER THIS SECTION OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO TRANSACTIONS IN JURISDICTIONS WHERE IT IS PROHIBITED BY LAW. BY AGREEING TO THIS AGREEMENT, YOU (A) ACKNOWLEDGE AND UNDERSTAND THAT ZEST’S SITE IS OR MAY BE HOSTED BY THIRD PARTIES AND THIRD PARTIES MAY BE USED FOR PROCESSING PAYMENTS TO ZEST (INCLUDING WITHOUT LIMITATION SHOPIFY) AND (B) AGREE THAT ZEST SHALL NOT BE LIABLE FOR ANY ACTION, BREACH OF FAILURE OF ANY THIRD PARTY IN CONNECTION WITH SUCH PAYMENT PROCESSING AND/OR SECURING YOUR PAYMENT AND OTHER INFORMATION. SPECIFICALLY, ZEST SHALL NOT BE LIABLE FOR ANY DATA BREACH THAT OCCURS AS A RESULT OF SUCH THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, SHOPIFY). III. DISPUTE RESOLUTION, ARBITRATION, AND CLASS ACTION WAIVER This Section III includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First Both you and Zest agree that in the event of any dispute between us, you and Zest will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes All disputes between you and Zest will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to a small claims court that has jurisdiction over the parties. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of Zest or you, shall be resolved by mandatory and binding arbitration submitted to the American Arbitration Association (the “AAA”) in accordance with its Consumer Arbitration Rules at the request of either Zest or you pursuant to the following conditions: (a) Place of Arbitration Hearings. Unless Zest and you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a AAA facility in Charlotte, NC or at another facility in Charlotte, NC agreed to by Zest and you. (b) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under AAA’s Consumer Arbitration Rules. Subject to the applicable AAA procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator shall have no power or authority to amend or disregard any provision of this section or any other provision of the Agreement. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties. (c) Findings and Conclusions. The arbitrator shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction. (d) Costs and Fees. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration. (e) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or Zest may bring suit in court to enjoin infringement or other misuse of intellectual property rights. (f) Other. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
C. Class Action Waiver The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim, or other proceedings by or between you and Zest shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
A. Governing Law and Venue. This Agreement is governed and interpreted pursuant to the laws of the State of North Carolina, notwithstanding any principles of conflicts of law. Any disputes in connection with this Agreement that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in Mecklenburg County, North Carolina, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
B. Entire Agreement. This Agreement is the entire agreement between you and Zest relating to the subject matter herein and shall not be modified except by Zest in accordance with its terms, or as otherwise agreed in writing by you and Zest. No employee, agent or other representative of Zest has any authority to bind Zest with respect to any statement, representation, warranty or other expression not specifically set forth in this Agreement.
C. Severability and Waiver. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
D. Assignment. You may not assign or transfer this Agreement or any of your rights or obligations under this Agreement. Zest may assign this Agreement at any time without notice to you.
E. Force Majeure. Zest will not be liable for, or be considered to be in breach of this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Zest’s reasonable control.
F. Contact Information. Please send any questions or comments, or report violations of this Agreement, to Zest at firstname.lastname@example.org. □ I agree to these Terms.