THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
I. Furniture Lease Term: You (“you” or “Lessee”) agree to rent from NICKSON LLC ("NICKSON"), in accordance with the terms and conditions of this Agreement, furnishings and/or appliances (the “Leased Furniture”) for the minimum period of months indicated on your reservation and commencing on the date of delivery ("Lease Term"). Prior to your move-in date, you may be required to sign an acknowledgment or agreement detailing the terms indicated herein.
II. Payment: All monthly charges are payable on the first of each month without further invoice and you hereby authorize NICKSON to process your monthly charges using the credit card information on record. As a courtesy, NICKSON may send you an email reminder indicating when your monthly amount is due. Late payments shall be subject to late payment charge, which is the greater of $25 or 5% of the delinquent payment, where allowed by law. This late payment charge shall be in addition to NICKSON's other remedies in the event of default. In addition to late payment charges, Lessee will be charged compound interest of one and one half percent (1.5%) per month, compounded monthly, on all delinquent payments where allowed by law. A $25 handling fee will be charged for any check returned to NICKSON by your bank. A replacement check or cash must be delivered to NICKSON 24 hours after notice to Lessee of the check return.
III. Cancellation: You shall have the right to cancel your reservation, for any reason and at no charge, up until the 15th of the month prior to your move in date (the “Penalty Free Cancellation Date”; for example, if your move-in date is June 8th, you may cancel any time before May 15). If your reservation is cancelled for any reason by NICKSON prior to your move-in date, NICKSON will not be liable for any damages. You acknowledge that NICKSON may rely on your reservation to make significant expenditures and that the cost of your reservation is a reasonable approximation of the costs NICKSON will incur if your reservation is cancelled after the Penalty-Free Cancellation Date.
IV. Lessee's Responsibility for Maintaining the Leased Furniture: It is the Lessee's responsibility to maintain the furniture, to keep it in good condition, and to return it to NICKSON at the end of the Lease Term or otherwise as required by this Agreement in the same condition as when received by Lessee, normal wear and tear excepted. Lessee must retain NICKSON's identification label, if any, on the furniture. The Leased Furniture shall not be removed from the address to which it is delivered without NICKSON's prior written consent. If you fail to return the Leased Furniture as required, you will be liable to NICKSON for an amount equal to the full replacement cost of the Leased Furniture in addition to all other payments and charges due under this Agreement.
V. Damages: Lessee will bear all risk of damage or loss to the Leased Furniture arising from normal wear and tear, including damage caused by pets, or from damage or loss caused by natural disasters. You may be required to provide NICKSON, prior to delivery, with a certificate of insurance evidencing fire and extended coverage protection for the full replacement value of the Leased Furniture, with NICKSON as a named payee in a loss payable clause.
VI. Security Interests: It is understood that this transaction is a lease and not a conditional sale or financing agreement. Title and ownership to the Leased Furniture remain vested in NICKSON, and Lessee may not grant a security interest of any kind in the Leased Furniture. Lessee shall keep the Leased Furniture free and clear from all levies, attachments, liens, and encumbrances. In the event that any person other than NICKSON attempts to create or assert an interest in the Leased Furniture, Lessee shall give NICKSON immediate notice thereof and shall take such action as NICKSON requires.
VII. Default: In the event of Lessee's default by failing to pay any payment when due or by failing to comply with any other term or condition of this Agreement and Lessee's failure to cure said default within ten (10) days of the default, NICKSON shall have the right to terminate the Lessee's right to possession of the Leased Property and repossess the Leased Property, wherever located, with or without legal process and NICKSON may charge any credit card provided by Lessee for any rent or other charges that are due and payable or become due and payable. Lessee's obligations to NICKSON under this Lease Agreement shall survive any such termination. Lessee agrees to pay all of NICKSON's costs of enforcing the provisions of this Agreement, including reasonable attorney's fees, in addition to all other amounts and damages for which Lessee is responsible under this Agreement. Lessee hereby waives any and all rights he or she may have, and can legally waive, to oppose pre-seizure hearings following default.
VIII. Assignment: This Agreement may not be assigned or transferred by you without NICKSON’s prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
IX. Warranties: NICKSON will deliver the Leased Property in good condition. NICKSON makes no other warranties, express or implied, and specifically disclaims any warranty of fitness for a particular purpose or merchantability.
X. Indemnification: You hereby agree to indemnify, defend, and hold harmless NICKSON, its affiliates, and each such party's directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the NICKSON platform, any merchandise and/or any professional service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to those of NICKSON or third-party professionals), and (v) your information and content that you submit or transmit through the NICKSON platform. NICKSON reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of NICKSON.
XI. Multi-Use Provision: This agreement is intended for use in several jurisdictions. You agree that if any of its provisions shall be held invalid or unenforceable under the laws of the state or jurisdiction in which you reside the remaining provisions shall be enforced as if without the inclusion of the invalid term.
XII. Entire Agreement: These terms and conditions constitute the entire agreement and understanding between the parties.
XIII. LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NICKSON BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE NICKSON PLATFORM, ANY NICKSON CONTENT, ANY INFORMATION AVAILABLE ON THE SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH NICKSON OR ITS EMPLOYEES, CONSULTANTS OR REPRESENTATIVES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NICKSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NICKSON’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNTS PAID BY YOU TO NICKSON DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) AND/OR OMISSION(S) GIVING RISE TO SUCH DAMAGE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
XIV. NOTICE TO BUILDING OWNER AND MANAGER: You hereby make the following statement – I grant NICKSON permission to enter my apartment or office for purposes of delivering, inspecting and picking up the Leased Property. I authorize and request my family members, agents, employees, servants, landlord and building management to fully cooperate with NICKSON in making the Leased Property available for inspection or pickup in my absence. I agree to hold such persons harmless for any action resulting from such entry.
XV. Mutual Arbitration Agreement:
A. Informal Negotiations: To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and NICKSON, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and NICKSON may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to NICKSON. NICKSON's address for such notices is: [email protected] and/or by mail to 3303 Blackburn St., Attn: NICKSON LLC Legal Department, Dallas, TX 75204.
B. Arbitration: If a Dispute is not resolved through Informal Negotiations, you and NICKSON agree to resolve any and all Disputes (except those Disputes expressly excluded below) through confidential, final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, NICKSON will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below.
C. Excluded Disputes: You and NICKSON agree that the following Disputes are excluded from this Arbitration Agreement: (i) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (ii) individual claims in small claims court; (iii) any claim that an applicable federal statute expressly states cannot be arbitrated; and (iv) any claim for injunctive relief.
D. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION: You and NICKSON agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
E. Rules/Standards Governing Arbitration Proceeding: A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where NICKSON service was provided (or was supposed to have been provided), unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award. Except as otherwise required by law and you agree to keep confidential and not disclose to third parties (other than your attorneys, accountants and financial advisors who need to know such information and who agree to be bound by the confidentiality terms hereunder) the existence of the arbitration, any information or documents obtained in connection with the arbitration process, and the resolution of any dispute (including the quantum of any award arising therefrom); provided, however, that, to the extent that any arbitral award needs to be submitted to a court by you for entering judgment thereon in accordance with the provisions hereunder, you may submit the quantum of such award to the court but shall not include any information relating to the matters that were arbitrated.
XVI. Severability: You and NICKSON agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect.
XVII. Changes to this Agreement: We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must notify NICKSON, terminate, and immediately stop using, the NICKSON platform. Your continued use of the NICKSON platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
XVIII. Governing Law; Jurisdiction: Except for the process described in the Arbitration Agreement section hereunder, which is governed by the Federal Arbitration Act, this Agreement is governed and interpreted pursuant to the laws of the State of New York, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of New York, New York. Each party knowingly waives any rights it may have to a trial by jury for any dispute arising out of or related to this Lease or the Leased Furniture.