Terms and Conditions
My Deposit Back Today [“Program 2”]
THIS MASTER SERVICES AGREEMENT (this “Agreement”) is entered into upon the date of the purchase of products on the RentandDeposit.com website (the “Effective Date”), by and between Tenants Today, LLC, a Colorado limited liability company (“Company”), and the purchaser of the product, (“Landlord”). Company, Tenant, and Landlord may be individually referred to as a “Party” and collectively referred to as the “Parties” to this Agreement.
WHEREAS, Company is in the business of purchasing assignments of security deposits made by tenants under residential leases in consideration of providing short term financing to such tenants (the “Services”);
WHEREAS, Landlord is the owner in interest of real property commonly known and numbered as defined in the purchase order (the “Property”);
WHEREAS, Tenant is in lawful possession of the Property under and pursuant to that certain lease agreement by and between Landlord and Tenant (the “Lease”);
WHEREAS, Tenant desires to engage the Services and assign the security deposit given to Landlord under the Lease to Company (the “Security Deposit”), and Company desires to provide the Services and accept the assignment, subject to the terms and conditions contained in this Agreement; and
WHEREAS, Landlord agrees to the assignment of the Security Deposit in consideration of Company’s assumption of performance with regard to the Security Deposit.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
DEFINITIONS AND CONSTRUCTION
Section 1.01 Incorporation of Recitals. The foregoing recitals are specifically incorporated in their entirety and made a part of this Agreement.
Section 1.02 Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
“Assignment” means the agreement by and among Company, Landlord, and Tenant whereby Tenant shall assign the Security Deposit to Company in connection with the Services, substantially in the form attached hereto as Exhibit A.
“Claim” or “Claims” means Landlord’s right, title, and interest in and to monetary damages owed to Landlord which cannot be recovered by the Security Deposit.
“Rent” means the payment charged to Tenant by Landlord under the Lease for possession of the Unit.
“Rental Term” means the term of a rental period as provided on the Lease and includes any renewals or extensions thereto.
“Unit” means the numbered dwelling unit within the Property to which the Lease is subject.
Section 1.03 Rules of Construction. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words “include,” “includes,” and “including,” shall be deemed to be followed by the phrase, “without limitation.” The words “herein,” “hereof,” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof. The headings used in this Agreement are for convenience of reference only, and are not used to modify, define, or interpret any of its parts. No provision of this Agreement shall be construed for or against any of the Parties solely as a result of the fact that such Party was responsible for the drafting of such provision. The Parties further represent and state that each Party and/or its counsel has been given a full and fair opportunity to review the Agreement before execution.
Section 2.01 Engagement of Services. At any time during the Rental Term, Tenant may engage Company by applying for the Services through www.SecurityNow.today (the “SecurityNow Portal”). If Tenant qualifies for the Services, as determined in the sole discretion of Company, Company shall request Landlord approval through the SecurityNow Portal. Upon Company’s written receipt of Landlord’s approval, Company, Tenant, and Landlord shall execute the Assignment.
Section 2.02 Landlord Consideration. In consideration of the Assignment, Landlord shall be entitled to keep ten percent (10%) of the Security Deposit at the expiration of the Rental Term (the “Landlord Consideration”), and Company shall assume Tenant’s obligations to Landlord with respect the Security Deposit at the expiration of the Rental Term. Notwithstanding anything to the contrary herein, neither Tenant nor Landlord shall be relieved of any other obligations, liabilities, or duties under the Lease or under applicable law.
Section 2.03 Tenant Payment. Upon execution of the Assignment, Landlord shall release sixty percent (60%) of the Security Deposit in immediately available funds to Tenant (the “Tenant Payment”). Landlord shall pay Company ten percent (10%) of the Security Deposit, which shall be held in reserve by Company and shall be returned to Tenant at the expiration or earlier termination of the Rental Term, provided that there is no damage to the Unit and, with the exception of the Landlord Consideration, no amount of the Security Deposit is subject to lawful withholding by Landlord (the “Reserve Reimbursement”). Company may withhold half of the Reserve Reimbursement should Tenant fail to submit images of the Unit on the date Tenant vacates the Unit or for the failure of any other request made by Company in connection with Tenant’s move out, even if there is no damage to the Unit and Landlord does not withhold any amount under the Security Deposit. Tenant acknowledges that the Assignment shall not constitute a waiver of any rights or remedies available to Tenant under applicable law. Tenant freely and voluntarily enters into this Agreement with the understanding that the Tenant Payment and the Reserve Reimbursement are the only reimbursements Tenant will be eligible to receive in connection with the Security Deposit under the Lease.
Section 2.04 Company Payment. In consideration of the Assignment, Landlord shall pay Company twenty percent (20%) of the Security Deposit (the “Service Fee”) upon the execution of the Assignment. Landlord shall be in material breach of this Agreement for the withholding of any amount of the Service Fee in excess of five (5) business days following the expiration or earlier termination of the Rental Term unless Company and Landlord agree in writing to an extension for the payment of the Service Fee. For the avoidance of doubt, nothing in this Agreement or in the Assignment shall be deemed to release Tenant from any Claim Landlord may have against Tenant or be deemed to waive any other rights or remedies available to Landlord under applicable law.
Section 2.05 Tenant Obligations. Upon the expiration of the Rental Term, should Landlord have the right to lawfully withhold any amount of the Security Deposit in excess of the Landlord Consideration pursuant to applicable law, Tenant shall immediately pay Company the balance of any such costs; provided, however, that Landlord must provide adequate documentation supporting any such withholding in compliance with applicable law.
Section 2.06 Company Performance Limited to Security Deposit. Unless otherwise provided herein, Company shall be liable to Landlord for any damages caused by the Tenant and covered by the Security Deposit under applicable law, up to the amount of the Security Deposit. For the avoidance of doubt, nothing in this Agreement or in the Assignment shall be deemed to release Tenant from any Claim Landlord may have against Tenant or be deemed a waiver of any other rights or remedies available to Landlord under applicable law.
REPRESENTATIONS AND WARRANTIES
Section 3.01 Tenant Representations and Warranties. Tenant makes the following representations and warranties to Company: (i) Tenant is not subject to any existing or threatened claims, lawsuits, or threats of legal action from Landlord; (ii) Tenant is not in default under the Lease and will remain in full compliance with the Lease during the Rental Term; (iii) Tenant’s interest in the Lease is not subject to any defense, right of rescission, discount, allowance, set-off, offset, or counterclaim; (iv) no other person has any rights, interest, or claims in or to the Lease or the Unit; (v) Landlord is not in default under the Lease; and (vi) Tenant is not aware of any action or omission on behalf of Landlord that would give rise to a cause of action against Landlord.
Section 3.02 Landlord Representations and Warranties. Landlord makes the following representations and warranties to Company: (i) Landlord is not subject to any existing or threatened claims, lawsuits, or threats of legal action from Tenant; (ii) Landlord is not in default under the Lease and will remain in full compliance with the Lease during the Rental Term; (iii) Landlord has not breached any warranty, express or implied, in providing the Unit to the Tenant including, but not limited to, any implied warranties of habitability provided under applicable law; (iv) no error, misrepresentation, negligence, fraud, or violation of law has occurred with respect to the Lease, including by any act or omission by any person; (v) no provision or any part of the Lease violates any law, rule, regulation or order, including, but not limited to, any applicable usury laws; (vi) Landlord holds good and valid title to the Unit free and clear of any liens or encumbrances and no other person has any rights, interest, or claims in or to the Unit; (vii) Tenant is not in default under the Lease; and (viii) Landlord is not aware of any Damage to the Unit or any event that would give rise to a claim against the Security Deposit.
Section 3.03 General Representations and Warranties. Each Party makes the following representations and warranties to each other Party on a continuing basis: (i) its execution, delivery, and performance of this Agreement have been duly authorized by all necessary action and do not contravene any applicable law or the provisions of any agreement to which it is bound; (ii) the individual executing this Agreement is duly authorized to do so; (iii) this Agreement constitutes the valid and binding agreement of the Party enforceable in accordance with its terms; and (iv) any information and documents furnished by it to the other Party for purposes of or in connection with this Agreement is true and correct and the information provided is complete enough so as not to be misleading.
Section 4.01 Tenant Covenants. Tenant covenants that it will not: (i) break or otherwise violate any term or provision of the Lease; (ii) Tenant will immediately reimburse Company for any amounts withheld from the Security Deposit at the expiration of the Rental Term; (iii) Tenant will not violate any federal, state, or local law, rule, order, or ordinance with respect to the Unit during the Rental Term; (iv) Tenant will not cause any damage to the Unit beyond normal wear and tear; and (v) Tenant will not assign, sublet, or otherwise encumber its interest in the Unit without the prior written consent of the Company, which consent Company may withhold in its sole and absolute discretion.
Section 4.02 Landlord Covenants. Landlord covenants that it will not: (i) break or otherwise violate any term or provision of the Lease; (ii) assign its interest in the Property without providing Company at least thirty (30) days’ prior written notice, and, in the event of an assignment, adequate assurances that the assignee will be subject to the terms of this Agreement and the Assignment; (iii) within three (3) days of Company’s request provide itemized documentation of any amounts withheld under the Lease and the reasons for any such withholdings; (iv) Landlord will not violate any federal, state, or local law, rule, order, or ordinance with respect to the Unit during the Rental Term; and (v) Landlord will not breach any warranty, express or implied, in providing the Unit to the Tenant including, but not limited to, any implied warranties of habitability provided under applicable law.
DEFAULT; EFFECT OF DEFAULT
Section 5.01 Default by Tenant. Upon breach by Tenant of any of the of the representations, warranties, covenants, or agreements contained in this Agreement or the Lease (“Tenant Default”), this Agreement and the Assignment shall terminate and Company shall be fully, finally, and forever released and discharged under this Agreement and the Assignment. Company shall repay the Security Deposit to Landlord, and Tenant shall immediately reimburse the Tenant Payment to Company. If any action is instituted by Company to collect or enforce any provisions of this Agreement in connection with a Tenant Default, Tenant shall be responsible for reasonable attorney’s fees and costs. Further, Company will expend a significant amount of money and resources in connection with the provision of the Services, and the loss and damages Company would suffer as a result of a Tenant Default are difficult to ascertain. Therefore, upon a Tenant Default, Tenant shall pay liquidated damages. Tenant understands that the liquidated damages are not a penalty and that the liquidated damages are reasonable and proportionate to Company’s presumable loss and damages.
Section 5.02 Default by Landlord. Upon breach by Landlord of any of the representations, warranties, covenants, or agreements contained in this Agreement (“Landlord Default”), this Agreement and the Assignment shall immediately terminate and Company shall be fully, finally, and forever released and discharged under this Agreement and the Assignment. Landlord shall be responsible for returning the full amount of the Security Deposit to Tenant at the expiration or earlier termination of the Rental Term. If any action is instituted by Company to collect or enforce any provisions of this Agreement in connection with a Landlord Default, Landlord shall be responsible for reasonable attorney’s fees and costs.
Section 6.01 Indemnification by Landlord. Landlord shall defend, indemnify, and hold harmless Company and its affiliates, and all of their respective officers, directors, agents, and employees (collectively, the “Company Indemnitees”) from and against any claims, suits, proceedings, causes of action, losses, liabilities, obligations, damages, fines, judgments, awards, costs and expenses of any nature (including reasonable attorneys’ fees) (collectively, “Third-Party Claims”) incurred by or asserted against Company Indemnitees in any way relating to any act or omission or misconduct of Landlord under this Agreement.
Section 6.02 Indemnification by Tenant. Tenant shall defend, indemnify, and hold harmless the Company Indemnitees from and against Third-Party Claims incurred by or asserted against Company Indemnitees in any way relating to any act or omission or misconduct of Tenant under this Agreement.
Section 7.01 Amendment of the Lease. To the extent set forth in this Agreement, but only to the extent necessary, Landlord and Tenant agree to hereby amend and modify the terms and conditions of the Lease.
Section 7.02 Notices. Any notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been given when received when given personally, by facsimile, or by electronic mail, upon acceptance or refusal for delivery after being placed in the United States mail, registered or certified, return receipt requested, postage prepaid, to the Parties’ respective addresses as set forth below:
Tenants Today, LLC
8400 East Prentice Avenue, Suite 1500
Greenwood Village, Colorado 80111
With a Courtesy Copy to:
Goodspeed & Merrill
Attn: Jay Hermele
7800 East Union Avenue, Suite 600
Denver, Colorado 80237
Section 7.03 Entire Agreement. This Agreement and the Assignment contain the entire agreement between the Parties with respect to the subject matter set forth herein and therein. All previous understandings, agreements, and communications prior to the Effective Date, whether express or implied, oral or written, relating to the subject matter of this Agreement are fully and completely extinguished and superseded by this Agreement.
Section 7.04 Waiver. The failure or delay by a Party in exercising any right, power, or privilege under this Agreement shall not be deemed a waiver of such right, power, or privilege, nor shall any single or partial exercise thereof preclude any other further exercise of any right, power, or privilege under this Agreement. No waiver of any term of this Agreement shall be binding unless made by means of a written instrument signed by a duly authorized representative of the Party against whom enforcement of such waiver is sought. Any such waiver shall not constitute a future waiver of the same term or condition.
Section 7.05 Assignment. This Agreement is personal in nature, and, as such, neither Party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party.
Section 7.06 No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the Parties. Neither Party shall take any action which could reasonably lead a third-party to assume that it has the authority to bind the other Party or make commitments on the other Party’s behalf.
Section 7.07 Severability. In the event that any provision of this Agreement should be held to be void, voidable, or unenforceable, such provisions shall be modified to the minimum extent necessary to make such provisions enforceable, and the remaining portions shall remain in full force and effect to the extent that the benefits conferred on the Parties by this Agreement remain substantially unimpaired.
Section 7.08 Applicable Law. The substantive laws of the state of Colorado, without regard to conflicts of law provisions or principles, govern all matters arising out of, or relating to, this Agreement.
Section 7.09 Venue and Jurisdiction. Any disputes between the Parties arising from this Agreement shall be brought exclusively in binding arbitration in Denver, Colorado or within the state courts located in Denver County, Colorado, and the Parties agree to submit to the personal jurisdiction of such courts. THE
PARTIES HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY SUCH ACTION. The prevailing Party in any action or arbitration arising from this Agreement shall be entitled to recover its court costs, expenses, and reasonable attorneys’ fees.
Section 7.10 Force Majeure. Delay in performance or non-performance of any obligation contained in this Agreement caused by Force Majeure (as defined herein) shall not be deemed a default of such obligations during such time that the non-performing Party is prevented from performing such obligations. The term “Force Majeure” shall mean, without limitation, the following: acts of God, including weather emergencies; strikes or lockouts; acts of terrorism; epidemics or pandemics; or other similar or comparable cause or event not reasonably within the control of the non-performing Party. The Party affected by Force Majeure shall promptly notify the other Party, explaining in detail the full particulars and expected duration thereof, and shall use its best efforts to remedy the interruption or delay. In the event that the Force Majeure extends for more than 60 days, either Party may terminate this Agreement upon written notice thereof to the other Party.
Section 7.11 Miscellaneous.
(a) Except as otherwise provided herein, no amendment or variation of this Agreement shall be effective or binding upon the Parties unless it is set forth in writing and has been signed by an authorized representative of each of the Parties.
(b) Time shall be of the essence of this Agreement.
(c) Each Party shall perform such further acts, execute such further documents, and give such further assurances as may be reasonably required to give effect to this Agreement.
(d) No provision of this Agreement shall be construed for or against any of the Parties solely as a result of the fact that such Party was responsible for the drafting of such provision. The Parties further represent and state that each Party and/or its counsel has been given a full and fair opportunity to review the Agreement before execution.
(e) The captions and headings used in this Agreement are for convenience of reference only, and are not used to modify, define, or interpret any of its parts.
(f) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures may be transmitted by any electronic means.
THIS ASSIGNMENT AGREEMENT (this “Assignment”) is entered into upon the date of the purchase of products on the RentandDeposit.com website (the “Effective Date”), by and between Tenants Today, LLC, a Colorado limited liability company (“Company”), purchaser of the product (“Tenant”), and owner of the tenant’s property, (“Landlord”) in connection with that certain Master Services Agreement to which it is attached (the “Agreement”). Capitalized terms used but not otherwise defined in this Assignment shall have the respective meanings given them in the Agreement.
A. Landlord is holding the Security Deposit in trust for Tenant, and Tenant desires to assign its interest in the Security Deposit to Company in exchange for Landlord’s advancement of the funds.
B. Company desires to accept the assignment and assume Tenant’s duty to perform under the Lease with respect to the Security Deposit at the expiration of the Rental Term in exchange for the immediate payment of the Service Fee.
C. The Parties desire to set forth their respective rights, responsibilities, and obligations related to the Security Deposit and the Lease.
1. Assignment. Tenant hereby transfers, assigns, and conveys all of its interest in and to the Security Deposit to Company and its successors and assigns in consideration of the Company’s agreement to perform under the Lease with respect to the Security Deposit. Nothing herein shall be deemed to waive any right Tenant has in the Security Deposit under C.R.S. § 38-12-101, et seq. or any other rights or remedies available to it under applicable law.
2. Company Obligations. By accepting the Assignment, Company hereby agrees to perform under the Lease on the part of the Tenant required to be performed with respect to the Security Deposit, from and after the Effective Date, but not prior thereto, including, but not limited to, the recovery of damages to the Property beyond normal wear and tear at the end of the Rental Term, as such term is defined in C.R.S. § 38-12-102(1). In no event shall Company be responsible for any damages in excess of the Security Deposit. Landlord agrees to indemnify, save, and hold harmless Company from and against any and all loss, liability, claims, or causes of action (choate or inchoate) existing in favor of or asserted by Tenant or any third party arising out of or relating to the Lease occurring prior to the Effective Date.
3. No Release of Tenant. Notwithstanding the execution and delivery of this Assignment or the Agreement, Tenant shall remain fully liable for the performance of all of the terms, covenants, and conditions under the Lease. Tenant covenants and agrees to indemnify, save, and hold harmless Company from and against any and all loss, liability, claims or causes of action now or hereafter existing in favor of or asserted by Landlord or any third party arising out of or relating to the Lease.
4. Further Assurances. The Parties hereby covenant and agree to execute and deliver, or cause to be executed and delivered, and to do or make, or cause to be done or made, any and all instruments, papers, deeds, acts or things, supplemental, confirmatory or otherwise, as may be reasonably required for the purpose of effecting this Assignment.
5. Duration. This Assignment shall become null and void upon a Default by Tenant or Default by Landlord, as provided in the Agreement.
6. Governing Law. This Assignment shall be governed by Colorado law, without regard to principles of conflicts of laws. Any action for breach of this Agreement shall be brought in a court of competent jurisdiction in Denver County, Colorado, and the Parties waive all right to a jury trial in any such action.
7. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the Parties, their respective successors, and assigns.
8. Counterparts; Facsimile Signatures. This Assignment may be executed in any number of counterparts, all of which will be taken to be one and the same instrument, for the same effect as if all Parties had signed the same signature page. Receipt of an executed signature page to this Assignment by facsimile or other electronic transmission will constitute effective delivery thereof.