TERMS AND CONDITIONS OF RENTAL CONTRACT
For good and valuable consideration, you and Chilkoot Equipment Ltd., a Canadian limited company, d/b/a
“MacPherson Rentals,” and d/b/a “Bobcat of Whitehorse,” (also referred to herein as “CEL,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” means the first page(s), quote, reservation or “face” of this Contract identifying among other things, the parties hereto, the Site and the Item(s) provided hereunder; “Contract” means P.1 together with these Terms and Conditions of Rental Contract; “Rented Item(s)” or “Item(s)” means the item(s) rented to you, as identified on P.1 (including any “Instructions” described in Section [or “§”] 4); “Site” means the delivery or use address for the Item(s), as set forth on P.1; and “Customer,” “Lessee,” “you” and “your” mean the Customer, Renter or Lessee identified on P.1.
2. You agree to rent from CEL the Rented Item(s) for the period(s) set forth on P.1 (the “Term”). In exchange, you agree to pay us our stated rental rate(s) (the “Rent”), together with all other charges accruing hereunder,
without proration, reduction, or setoff, and remain liable for all loss of and damage to such Item(s), for the entire
Term and until all Item(s) is/are returned to and accepted by CEL in the return condition required under §
5. All rental rates are for normal use of the Rented Item(s) on (a) a single-event basis for special events items; and (b) a single-shift basis for all other Items, not exceeding 8 hours per 24-hour period for which Rent is charged hereunder (each, a “Rental Day”), 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day period (zero hours for uncharged-for periods) and otherwise in accordance with the terms hereof and the “Instructions” described in § 4. Additional hourly Rent will be due for overuse and late returns. No allowance or reduction of Rent will be made for any period(s) of nonuse. Unless we otherwise agree in writing, you shall: (a) pay us: (i) any deposit and the estimated Rent set forth on P.1 in advance of the Term (the “Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability to us; and (iv) all Prepayments are non-refundable. Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.
3. You agree to ensure the Site is reasonably clean, safe, secure, and fit for delivery and use of the Rented Item(s) at all times. If we agree to deliver and/or retrieve any Item(s), you will: (a) pay our charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for any delay(s) caused by the acts or omissions of you, your agents and/or employees, and/or any other parties, including providers of other equipment or services (“Other Providers”) for which you hereby release and hold harmless CEL. If you are not present upon delivery and/or retrieval of any Item(s), you agree to accept the statements of our representatives regarding the same (including status, condition, quality and quantities of the Item(s) and the Site).
4. Upon your receipt of the Rented Item(s), unless you immediately reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete, in good operating condition, fully charged and/or fueled (as applicable), and in all ways acceptable to you; (ii) is appropriate for your purposes; and (iii) was selected (not based on any recommendation by CEL), counted, examined and tested solely by you or your agent(s); and (b) you: (i) have carefully reviewed and understand all laws, rules, regulations, training, instructions, safety requirements, user manuals, maintenance requirements, and other information, if any (including all applicable Environment Canada, CSA, CCOHS, CanOSH, Transport Canada, ASSP, ASME, MHSA, ACRP, IEEE, IBC, SAIA and/or ANSI Standards, site assessment, fueling, charging, ventilation, silica dust, and AWP/MEWP training requirements) pertaining to such Item(s) (collectively, “Instructions”); (ii) will fully comply therewith; (iii) have been made aware of the need to use all applicable safety equipment (including respiratory and fall protection devices); (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all required notice(s) to, and obtain all necessary licenses, authorizations and permits from, all affected parties (including governmental authorities and the owner(s) of the Site); (vi) will advise all utilities and cable companies, and ensure all underground lines and cables are properly marked, before using any Item(s) to disturb the ground surface (Go to www.clickbeforeyoudig.com at least 3 business days in advance); and (vii) will ensure that all others comply herewith. You will immediately notify the authorities, CEL,
Copyright ©, Rented Item(s)RentalContracts.com. (866) 582-2586. All rights reserved. Unauthorized reproduction and/or distribution strictly prohibited. and the TPO (defined in § 6) in the event of any theft or accident involving any Rented Item(s), or if any of the other requirements of this § 4 shall be breached or shall prove incorrect or misleading at any time.
5. You agree to protect, properly maintain and care for each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to CEL on time at the end of the Term, complete, clean, free of contamination (including without limitation, asbestos, beryllium, pathogens and silica) and in good order, condition and repair, properly serviced and maintained, and if applicable, fully charged and/or full of the appropriate fuel, fluids and lubricants. You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS, CANNABINOIDS, AND ALCOHOL, WHETHER OR NOT LEGAL); (ii) abuse, misuse, overuse, conceal, store with any third party, repair,
modify or damage any Rented Item(s); (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) use any Rented Items in temperatures below -25 Celsius without properly preparing and/or warming the Items; or (v) disable, misuse or circumvent any safety device(s) in, on or with any Rented Item(s). If you fail to adhere to any of the above instructions, in addition to the amounts otherwise due hereunder, you will pay CEL: (a) Rent for each succeeding full rental period until all Rented Item(s) have been returned or replaced as required; and (b) all costs and expenses (including damages) we incur in connection with your failure to do so.
6. Except with respect to Item(s) we rent from one or more third-party owner(s) (each, a “TPO”) and then re
rent to you (“Re-Rented Items”), CEL owns and will retain title to all Rented Item(s) at all times. You will have exclusive control over the Rented Item(s) during the Term, subject to your obligation to fully and timely comply with this Contract. You SHALL NOT have any title or ownership interest in any Rented Item(s), nor shall you: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on; or (b) loan, transfer, sublease, surrender possession of, or assign, any Rented Item(s), or this Contract. We, and/or
any TPO, may sell and/or assign all or any part of our/its interests in the Rented Item(s) and/or this Contract, in which event, you agree to attorn to the assignee, who shall not be responsible for any pre-existing liabilities or obligations of CEL or the TPO.
7. You will immediately cease using any Item that breaks down, malfunctions, or proves defective (a “Malfunction”), in which event you will immediately notify, and return the Malfunctioning Rented Item(s) to, CEL. Provided that the Malfunction did not result from or in connection with your breach of this Contract or any wrongful or negligent act or omission of/by you or anyone you permit to use the subject Item, CEL may, at its sole option: (a) repair or cause the applicable TPO to repair such Item; (b) provide you with a comparable replacement; or (c) return the unused portion of the Rent and cancel this Contract. These remedies are EXCLUSIVE. Neither CEL nor any TPO will have any other obligation(s) regarding Malfunctions, all of which you waive, together with all associated incidental and consequential damages.
8. WARNINGS: The Rented Item(s) can be DANGEROUS and should be moved, serviced, cleaned, fueled, charged, maintained, and used with EXTREME CARE, ONLY FOR ITS/THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, CERTIFIED, AND LICENSED, ADULTS. YOU AGREE TO PROVIDE ALL APPLICABLE FAMILIARIZATION, TRAINING, INSTRUCTIONS, AND WARNINGS TO ALL USERS, OPERATORS AND OCCUPANTS OF THE RENTED ITEM(S) and ensure that each such Item is used safely and only in full compliance with this Contract at the Site, by properly trained (and as applicable by law, licensed) adults at all times.
9. CERTIFICATIONS: VARIOUS FEDERAL, PROVINCIAL, TERRITORIAL AND/OR LOCAL JURISDICTIONS, AND/OR STANDARD SETTING/PUBLISHING BODIES IN CANADA, INCLUDING WITHOUT LIMITATION, THE CANADIAN STANDARDS ASSOCIATION (“CSA”), THE CANADIAN CENTRE FOR OCCUPATIONAL HEALTH AND SAFETY (“CCOHS”), THE APPLICABLE MINISTRY(IES) OF LABOUR, HEALTH CANADA, CANOSH, AND PROVINCIAL/TERRITORIAL OCCUPATIONAL HEALTH AND SAFETY OR “WORKSAFE” AUTHORITIES, REQUIRE (OR IN THE FUTURE, MAY REQUIRE) PERFORMANCE OF SPECIFIC INSPECTIONS, MAINTENANCE, REPAIRS AND/OR REPORTING, AND/OR THAT ONE OR MORE
OPERATORS OF THE RENTED ITEM(S) BE TRAINED AND/OR CERTIFIED BY ONE OR MORE PUBLIC, PRIVATE OR MILITARY TRAINING OR CERTIFICATION AUTHORITIES. You agree to fully and timely comply with all applicable laws, rules, standards, regulations, guidelines, and ordinances pertaining to each Rented Item (including without limitation, the foregoing, as well as all operator standards, rules, regulations, and certification requirements). Without limiting the foregoing, YOU WILL ENSURE THAT: (A) ONLY INDIVIDUALS WHO
Copyright ©, Rented Item(s)RentalContracts.com. (866) 582-2586. All rights reserved. Unauthorized reproduction and/or distribution strictly prohibited.
MAINTAIN CURRENTLY VALID AND APPROPRIATE LICENSES AND CERTIFICATIONS FROM ALL
APPLICABLE GOVERNMENTAL AUTHORITIES AND/OR OTHER ISSUING BODIES OPERATE OR HAVE ACCESS TO ANY RENTED ITEM(S); and (B) all Transport Canada and similar Provincial and/or Territorial (as applicable) requirements are fully and timely satisfied.
10. CEL IS NOT THE MANUFACTURER OR DESIGNER OF ANY RENTED ITEM(S), all of which are provided “AS-IS.” NEITHER CEL NOR ANY TPO MAKE(S) ANY WARRANTY(IES), EXPRESS, STATUTORY, OR IMPLIED (INCLUDING ANY WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A COMMUNICATED PURPOSE, FREEDOM FROM DEFECTS AND/OR GOOD AND WORKMANLIKE PERFORMANCE, OR ANY WARRANTY(IES) ARISING UNDER OR CORRESPONDING TO ANY “SALE OF GOODS ACT” OR IN CONNECTION WITH ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE) regarding any Item(s) or Service(s) referenced in this Contract. CEL and/or any TPO makes no warranty against INTERFERENCE OR INFRINGEMENT, all of which you waive. No descriptions, specifications or advertisements shall be deemed representations or warranties of/by CEL or any TPO. THERE ARE NO WARRANTIES OTHER THAN THOSE APPEARING ON THE FACE OF THIS CONTRACT.
11. INDEMNITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ELECTRIC SHOCK, ILLNESS, LOSS, THEFT, DAMAGE AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, FUELING, CHARGING, USE, LOADING, UNLOADING, FUELING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, STORAGE, SERVICING, CLEANING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S) (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, CEL AND EACH TPO, and their respective owners, partners, shareholders, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (collectively, the “Indemnitees”), for, from and against all such RISKS, as well as all liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from/associated with your breach of this Contract or any wrongful or negligent act or omission of/by you or anyone of your agents and/or employees, and/or any person acting on your behalf or for whom you are responsible at law, whether or not your fault with respect to the foregoing; and (C) WAIVE all direct, indirect, incidental, consequential, general, special, exemplary and punitive damages, against each of the Indemnitees.
12. You agree to maintain all insurance we may require, including: (a) commercial general and host liquor liability insurance with minimum limits of $1,000,000 per occurrence; (b) property damage/inland marine insurance covering all Items for the full (new) replacement cost thereof; (c) workers’ compensation insurance; and (d) for all trailers included with or in the Rented Item(s): (i) hired auto liability insurance with minimum limits of $1,000,000; (ii) hired auto physical damage insurance for actual cash value; and (iii) replacement cost contents insurance for all contents thereof. Such policies shall, whenever possible: (I) name CEL as an additional insured and loss payee; (II) waive subrogation against us; (III) be primary and non-contributory; and (IV) include such other provisions (including deductibles) as we may require. You irrevocably appoint CEL as your agent and attorney-infact for purposes of submitting, negotiating, and settling claims on all of the above referenced policies.
13. If and only if, we have offered, and you have paid for our OPTIONAL LIMITED DAMAGE WAIVER (“LDW”) (set forth on P.1, if available) in advance of the Term, you will have no liability to us for 80% of the first $5,000 of repair/replacement costs for physical damage to Item(s) covered by LDW (“Covered Item(s)”); provided however, that you will, remain fully liable for: (a) all loss of and damage to: (i) Item(s) not covered by LDW; (ii) Covered Item(s) lost or damaged during transportation and/or as a result of: (A) any breach of this Contract by you or your agents, employees, sublessees, transferees, borrowers, successors and/or assigns; (B) theft or other failure to timely return Covered Item(s) to us; (C) negligence, misuse and/or abuse of Rented Item(s) (including submerging, overturning and overloading); (iii) GPS and telematics systems, data, batteries, keys, glass, tires, tubes, tracks, booms, belts, chains, lights, knobs and hoses; (b) 20% of the first $5,000 of repair/replacement costs for Covered Item(s); and (c) all repair and replacement costs exceeding $5,000 in the aggregate across all Covered Item(s). You may decline LDW if you provide the property/physical damage/inland marine insurance referenced in § 12. Your insurance, if any, will continue to apply and will remain primary. You agree to assist us in recovering thereunder for all losses covered by LDW. LDW IS NOT INSURANCE, NOR IS IT A WARRANTY.
Copyright ©, Rented Item(s)RentalContracts.com. (866) 582-2586. All rights reserved. Unauthorized reproduction and/or distribution strictly prohibited.
14. Your duties hereunder are UNCONDITIONAL: If you or any guarantor: (a) fail to fully and timely honor, pay or comply with your obligations arising under this Agreement or any other agreement with CEL (each, an “Other Contract”); (b) provide any incorrect or misleading information to us; (c) become insolvent or declare bankruptcy; or (d) die or cease conducting business, if CEL shall reasonably deem itself insecure, or if any Rented Item(s) shall be lost or, except to the extent covered by LDW per § 13, damaged, you will be in default, whereupon, CEL may without notice or liability to you, to the maximum extent permitted under applicable law: (i) terminate your rental(s); (ii) seek relief from stay; (iii) recover, empty, lock, restrict, dismantle and/or disable any Item(s) without being guilty of trespass, wrongful interference or other transgression (for which you shall indemnify, defend and hold harmless Chilkoot Equipment Ltd., as well as its agents and employees); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement item(s); (vi) recover from you and/or any guarantor (jointly and severally) our associated damages, losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, interest, attorneys’ fees and collection costs); and/or (vii) pursue any other rights and/or remedies available in connection herewith, all of which are cumulative.
15. To the maximum extent permitted under applicable law, CEL and/or the applicable TPO(s) will be entitled to a lien on all real property on which any Item(s) may be located or used. We may, without notice or liability to you, inspect and/or monitor (in person and/or electronically) any Item(s) at any time, and all information and data thereby obtained will be our property. If any performance required of CEL is impaired as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God” (e.g., any event, fact, or circumstance beyond our reasonable control), CEL will be excused from such performance. You waive the benefits of all statutes of limitations regarding CEL’s rights and remedies and acknowledge that this Contract is a business agreement for such purpose. All amounts due hereunder but not timely paid will bear interest at 2% per month (24% per year) until paid. You authorize CEL to submit all amounts coming due hereunder for payment on any debit or credit card(s) you provide, and you waive all associated offsets, chargebacks, and claims. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. CEL’s maximum liability in connection with this Contract is limited to the amount(s) actually received by CEL from you hereunder. You will pay: (i) our attorneys’ fees and other costs of enforcing this Contract; and (ii) all taxes (including all sales, use, value added, retail sales (RST) and other taxes), fines, fees, and other charges related to each Item, even if assessed after the Term ends. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies will constitute an election of remedies or a waiver of any of our rights or remedies, all of which are cumulative. This Contract and any Addenda we may provide, each of which is incorporated herein, represent(s) the entire agreement between you and CEL, superseding all other agreements, representations, and terms (including our website and advertising). Accordingly, you hereby waive the common law doctrine of “collateral contract” and all claims arising therefrom. The terms of this Contract are severable. If any provision hereof is deemed invalid or unenforceable by any court of competent jurisdiction, such provision will be deleted, and the remainder of this Contract will remain valid and enforceable. This Contract cannot be further amended or extended except as agreed in writing by CEL. Time is of the essence. These Terms and Conditions apply to all Item(s) identified on P.1, and to all other items you obtain from CEL at any time (except only as we may otherwise agree). This Contract: (a) has been specifically negotiated by the parties hereto (each waiving any right to claim it constitutes an “adhesion contract”); (b) is reasonable and fair; (c) will bind and be enforceable by you, Chilkoot Equipment Ltd., the other Indemnitees, and such parties’ respective insurers, subrogees, successors and permitted assigns; and (d) shall be governed by and interpreted under the federal laws of Canada and the territory of Yukon as applicable therein, without reference to conflict of laws principles.
16. At CEL’s option, disputes arising in connection herewith shall submitted to binding ARBITRATION before a single arbitrator and at a location selected by CEL under the rules of the Canadian Arbitration Association in or nearest to Whitehorse, YT. Judgment on the arbitrator’s award will be final and binding and not subject to appeal and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal proceedings commenced in connection herewith shall solely in the federal, territorial, and local courts located in or nearest to Whitehorse YT (unless waived by us). You consent and submit thereto and waive all claims that such venue lies in an inconvenient forum. YOU WAIVE YOUR RIGHT TO TRIAL BY JURY. Digital, electronic, photocopied, or facsimiled signatures and initials on this Contract and/or any Addenda(um) we provide will be deemed originals.
17. WARNING: Failure to return rented property at the end of the Term can, in certain circumstances, be considered THEFT, resulting in CIVIL LIABILITY and/or CRIMINAL PROSECUTION.
Copyright ©, Rented Item(s)RentalContracts.com. (866) 582-2586. All rights reserved. Unauthorized reproduction and/or distribution strictly prohibited.
