Section I. Default.
(a) Whether “Rental” or “Rent-to-Own”, a Lease is in Default where Lessee has: (1) failed to pay the monthly obligation of the Lease for two (2) consecutive months; or (2) failed to pay the monthly obligation of the Lease for two (2) non-consecutive months. A Lease payment is past due on the Tenth day after the Due Date of each monthly obligation of the Lease. The Due Date shall be the 5th day of each month. A past due balance is subject to a late fee of Five percent (5%) of the past due balance.
(b) In the event of the occurrence of Default as set forth in paragraph (a) of this Section, Lessee hereby authorizes a representative of The Band Attic to physically repossess the Property. Upon collection in such manner, The Band Attic will automatically terminate the Lease. In such an event, Lessee remains responsible for all past due rent obligations prior to and at the time of Termination. For a terminated Lease to be renewed and the Property re-issued, the account MUST be made current.
(c) In the event The Band Attic elects, in its sole discretion, to not repossess the Property in the manner described in paragraph (b) of this Section, Lessee acknowledges that The Band Attic retains the right to terminate any Lease in Default. Upon Notice of Termination, Lessee shall have Ten (10) days to return the Property. In the event the Property is not returned within Ten (10) days, The Band Attic retains the right to: (i) seek damages in Small Claims Court for the Full Retail Value of the Property or entire Agreement, as the case may be and as notated on the Lease, less any previously paid rent amounts; and (ii) exercise of any other remedy available pursuant to the Lease or the laws of the State of North Carolina.
Section II. Termination by Lessee.
(a) Lessee may terminate the Lease at any time with no further obligation owed pursuant to the Lease; provided however, (i) the Property is hand-delivered to The Band Attic at 109A 5th Street, Spencer, NC 28159 during standard business hours; (ii) the Property is in Satisfactory Condition, as evaluated and determined at the sole discretion of representatives of The Band Attic; and (iii) any and all obligations owed by Lessee pursuant to the Lease are current and Lessee’s account is in good standing.
(b) Termination of a Lease, as described in paragraph (a) of this Section, is ONLY completed upon the return of the Property to The Band Attic. The Lease shall not be deemed terminated in any other circumstance, including, without limitation, where the Property is left at the Student's school, or upon verbal notification of termination by Lessee. Termination occurs ONLY at such time The Band Attic regains and resumes physical possession of the Property. The Band Attic WILL NOT be responsible for damage to or theft of the Property in such an event or any similar event. (c) The term “Satisfactory Condition”, shall mean: (i) the Property shall have no or only minor cosmetic issues, such as dents, scratches, scraps, or other cosmetic blemishes, unless otherwise noted on the Lease at the time of the making of the Lease; (ii) the Property shall be in full, complete, and functional mechanical condition with no mechanical dysfunctionality; and (iii) the Property shall be, in all other respects, in such condition that the Property is immediately marketable. The determination that Property is in “Satisfactory Condition” is the sole right of The Band Attic, and is within the sole discretion of The Band Attic.
(d) Any and all previously paid rent amounts in accordance with the Lease are non-refundable.
Section III. Exchange within Lease
(a) Lessee may exchange the Property for a difference type of Property with no additional charge EXCEPT any potential variance in cost in the newly selected Property (e.g. Trumpet is $30.00 per month; Alto Sax is $50.00 per month).
(b) As defined and described in paragraph (c) of Section II, Property to be exchanged must be in Satisfactory Condition.
(c) Any and all rent amounts received prior to an exchange described in this Section SHALL be applied as a credit to the newly selected Property (e.g. Clarinet exchanged for Alto Sax; Trumpet for Trombone; Percussion Kit for Violin).
Section IV. Maintenance Plan
(a) The Band Attic warrants that, unless otherwise disclosed to Lessee and upon the Lease, the Property is marketable and in Satisfactory Condition, as such term is defined and described in paragraph (c) of Section II.
(b) Unless Lessee elects to include a Maintenance Plan as part of the Lease, care and maintenance of the Property SHALL be the sole responsibility of Lessee. Such care and maintenance includes, without limitation, repair, part or material replacement, regular cleaning, and otherwise regular care and maintenance.
(c) Nothing in the foregoing paragraph, or any other portion of these Terms and Conditions, purports to void, negate, or invalidate any manufacturer's warranty available to Lessee and upon the Property. Lessee shall consult with a representative of The Band Attic to determine if such warranty exists or applies.
(d) In the event Lessee elects to include a Maintenance Plan as part of the Lease, such Maintenance Plan DOES NOT cover theft, malicious destruction, or reckless/careless damage to the Property. Repair or full replacement of Property lost, stolen, or subjected to malicious destruction or reckless/careless damage SHALL be the sole responsibility of Lessee. The Band Attic, at its sole election and discretion, shall determine if malicious destruction or reckless/careless damage has occurred, and if The Band Attic makes such a determination, Lessee SHALL be required to complete any repair related to that such damage; provided however, nothing is this paragraph shall be construed as contrary to Chapter 25 of the North Carolina General Statutes or any other provision of North Carolina law.
(e) A Maintenance Plan, as described in this Section and by the Lease, is ONLY valid where repair and maintenance is performed by repair technicians with whom The Band Attic has contracted to perform repair and maintenance pursuant to a Maintenance Plan. Any repair and maintenance performed by any individual or entity other than repair technicians with whom The Band Attic has contracted violates the terms of and voids, invalidates, and otherwise cancels the Maintenance Plan. In such event, The Band Attic will no longer perform repair and maintenance services pursuant to the Maintenance Plan, and Lessee will no longer be charged the indicated monthly Maintenance Plan fee.
(f) Unless explicitly excluded by this Section, The Band Attic will provide care and maintenance at no additional charge to Lessee where Lessee has elected to use a Maintenance Plan and the account of Lessee is in good standing with no fees, payments, and charges outstanding, due, and owing.
Section V. Collections and Fees
(a) In the event Lessee defaults upon, terminates, or otherwise fails to fulfill Lessee’s obligations pursuant to the Lease, The Band Attic reserves the right to refer, sale, or assign any amount past due and owing to a collections agency, and such collections agency may set its collections fees according to its customary and usual practice.
(b) In addition to late fees and collections fees, for each month a past due balance is owed and outstanding, such balance will accrue interest at the interest rate of Eighteen percent (18%) per annum, or One and One-Half percent (1.5%) per month, on all past due balances owed and outstanding at such time as each monthly balance is Fifteen (15) days past due until such time as all past due balances, fees, and interest are paid in full.
(c) Should The Band Attic seek legal recovery for past due amounts, Lessee will be responsible for expenses, costs, and fees, including attorneys’ fees, to the fullest extent allowable by law. Section VI. Miscellaneous
(a) The Band Attic reserves the right to change or modify the terms of this Lease. Lessee may not change or otherwise amend or modify the terms of this Lease without the express, written consent of The Band Attic.
(b) All Leases completed ON or BEFORE August 20th, 2017, will have a September payment due on September 5th. All contracts completed AFTER August 20th, 2017, WILL NOT have a September payment.
(c) Unless otherwise provided by express, written agreement, The Band Attic prohibits the subletting of the Property.
(d) Except as otherwise provided herein, this Lease shall be binding upon, and inure to the benefit of, the parties, their successors, and assigns.
(e) When the context in which words are used in this Lease indicates that such is the intent, words in the singular number shall include the plural and vice versa. The masculine gender shall include the feminine. The Section headings or titles shall not define, limit, extend, or interpret the scope of this Lease or any particular Section. This Lease shall be governed and construed in accordance with the laws of the State of North Carolina without giving effect to the conflicts of laws provisions thereof.
(f) If any provision, sentence, phrase, or word of this Lease or the application thereof to any person or circumstance shall be held invalid, the remainder of this Lease, or the application of such provision, sentence, phrase, or word to persons or circumstances, other than those as to which it is held invalid, shall not be affected thereby.
(g) The failure of any party to seek redress for violation of, or to insist upon, the strict performance of any covenant or condition of this Lease shall not prevent a subsequent act, that would have originally constituted a violation, from having effect of an original violation.
(h) The parties intend that this Lease, together with all other documents that both are referenced in this Lease and refer to this Lease, represent the final expression of the parties’ intent and agreement between the parties relating to the subject matter of this Lease, contain all the terms the parties agreed to relating to the subject matter, and replace all previous discussions, understandings, and agreements relating to the subject matter.
(i) Any civil action brought against The Band Attic relating to or deriving from this Lease or the subject matter of this Lease shall be brought in the courts of the County of Rowan in the State of North Carolina.
Section VII. Definitions
(a) “Default” shall mean the manner in which the Lessee has violated the terms and conditions of the Lease as defined, described, and set forth in Section 1 of these Terms and Conditions. (b) “Full Retail Value” shall mean: (i) the “Retail Value” of Property as stated on the face of the Lease if the Property is subject to a “Rental Lease Agreement”; or (ii) the “Full Value of Agreement” as stated on the face of the Lease if the Property is subject to a “Consumer Credit Sale and Rent-to-Own Lease Agreement”.
(c) “Lease” shall mean either: (i) a lease contract as defined, described, and set forth on a contract titled “Rental Lease Agreement”, in which the Lessee owes and shall pay a monthly rental amount month-to-month indefinitely unless and until such time as the Lease is terminated by either the Lessee or The Band Attic in accordance with these Terms and Conditions AND the Property is returned to The Band Attic; or (ii) a lease contract as defined, described, and set forth on a contract titled “Consumer Credit Sale and Rent-to-Own Lease Agreement”, in which the Lessee owes and shall pay a monthly rental amount unless and until such time as: (1) the Lease is fully paid and satisfied such that the Lessee owns the Property with no further obligation to The Band Attic, or (2) the Lease is terminated by either the Lessee or The Band Attic in accordance with these Terms and Conditions AND the Property is returned to The Band Attic.
(d) “Lessee” shall mean the individual or individuals agreeing to possess the Property and, in exchange, remit monthly rental payments to The Band Attic, regardless of whether the individual or individuals will become the owner or owners of the Property as some future time.
(e) “Notice of Termination” shall mean: (i) express written or electronic notification to the Lessee that The Band Attic has elected to terminate the Lease due to Default; or (ii) physical return of the Property to The Band Attic by the Lessee as stated and described in paragraph (a) of Section II.
(f) “Property” shall mean the musical instrument, equipment, or other property of The Band Attic which is or is to become the subject of the Lease. (g) “Rental” shall mean a “Rental Lease Agreement” contract.
(h) “Rent-to-Own” shall mean a “Consumer Credit Sale and Rent-to-Own Lease Agreement” contract.
(i) “Termination” shall mean the cancellation of a Lease such that neither party to the Lease owes any FURTHER obligation to other as defined, described, and set forth in Section II of these Terms and Conditions.
(j) “The Band Attic” shall mean The Band Attic, its successors, or assigns.