- Rental Period
- Applicable Laws
- Possession and Inspection
- Consequential Damages
- Maintenance, Operation, and Repairs
- Liability of Lessee
- Force Majeure
- Event of Destruction or Partial Destruction
- Levies, Liens and Seizure
- Condition of Equipment
- Risk of Loss
- Customer Security Deposit
- Third Party Payments
- Entire Agreement
The following terms and conditions together with the Packing List enclosed on delivery of any rental equipment from Ketek Group Inc. (Lessor) form the rental agreement. The Lessor and Lessee agree there are no other terms, conditions or other agreements as between the parties except as set out herein. The Lessee agrees to pay the current rental rate for all equipment listed on the Packing List as determined by the Lessor.
1. Rental Period
The rental period shall commence on and include the date of consignment of the rental equipment from the Lessor’s shipping point to the Lessee, or the Lessee’s agent including any public carrier taking same for transit to the Lessee. The rental period shall end on and include the date of actual delivery of the equipment to the Lessor, another Lessee of the Lessor or agent of either. In calculating the rental period, 24 hours or any part thereof constitutes one full day of rent.
By endorsing the Packing List the individual or Corporation accepting delivery agrees to adhere to all terms and conditions set out herein. Where the Packing List is endorsed by and individual, that person and the Corporation accepting delivery confirm the signatory has the requisite authority to bind the Corporation to these rental terms and conditions and expressly agrees as the Corporation’s lawful Agent to pay the rental fee applicable at the time of delivery. These terms and any rental fee can only be amended in writing between the parties which may include an exchange of emails.
3. Applicable Laws
This Agreement shall be construed in accordance with and governed by the laws of Alberta and both the Lessor and Lessee irrevocably atorn to the jurisdiction of Alberta. Any action brought by either party must proceed in the Judicial District of Edmonton.
The rental fee is due within 30 days of the date of invoice. Any overdue amounts shall bear interest at the rate of eighteen percent (18%) per annum compounded annually. The interest adjustment date shall be the date of the commencement of the Rental Period described herein.
The Lessee shall commit an act of default when:
a) the Lessee is late in paying the rental fee;
b) if a Receiving Order in Bankruptcy shall be entered against the Lessee;
c) if the Lessee shall call a meeting of the Lessee’s creditors;
d) if the Lessee shall execute any assignment for the benefit of the Lessee’s creditors;
e) if the Lessee (if a limited company) shall enter into compulsory or voluntary liquidation;
f) if the Lessee shall fail to observe and perform the terms and conditions of this Lease;
g) if the Lessee shall do or cause to be done or permit or suffer any act or thing whereby the Lessor’s rights in the equipment may be prejudiced or put in jeopardy
In the event of an act of default, without any notice to the Lessee the Lessor may elect to terminate the rental agreement and retake possession of the rental equipment. For that purpose, the Lessor may enter into or upon any premises owned or controlled by the Lessee for the limited purpose of taking possession of the rental equipment. The termination of the Lease under this clause shall not affect the right of the Lessor to recover from the Lessee any monies due under this Lease, or damages for breach thereof. The Lessee shall indemnify and save harmless the Lessee from any claims, causes of action, which may arise by reason of the Lessee retaking possession of the equipment. Any rental fee paid by the Lessee cannot be applied against the purchase price of equipment out on rental or lost equipment.
The Lessor reserves the right to remove rental equipment from the Lessee at the location of the rental equipment at any time, when in the Lessor’s opinion, acting reasonably, the Lessor becomes aware that the Lessee has threatened to cease to carry on business, may become subject to insolvency or bankruptcy proceedings voluntarily or involuntarily, or in any other situation in which the Lessor, acting reasonably, deems it to be a situation where the Lessee may not be in a position to continue carrying on business.
8. Possession and Inspection
The Lessee shall keep the rental equipment in its own custody and control and will not move the equipment from the location stipulated on the Packing List without consent from the Lessor which shall be in writing and may include an exchange of emails. At all reasonable times the Lessee shall allow the Lessor to have access to the equipment to inspect the condition thereof. The Lessee represents to the Lessor that any equipment rented will be only be used for commercial purposes, shall only be operated by trained personal and will only be operated in accordance with the specifications and instructions given by the Lessor.
9. Consequential Damages
Neither party hereto shall be liable to the other in connection any indirect, incidental, special, or consequential damages, including but not limited to any overhead costs, loss of revenue, cost of capital, or loss of profit or business opportunity or reputation or from any cause whatsoever, whether such liability arises out of contract, tort (including negligence), strict liability or otherwise.
10. Maintenance, Operation, and Repairs
All rental equipment shall be deemed fit for the purpose advertised and shall be in good condition and working order when delivered to the carrier. It is hereby agreed that the LESSOR MAKES NO WARRANTY OR GUARANTEE WHATSOEVER, as to the equipment after it leaves the Lessor’s shipping point, either expressed or implied. The Lessee shall not remove, alter or disfigure any identification insignia displayed upon the equipment and shall ensure that the equipment is not subjected to careless or inappropriate usage, or operated by any person other than those who are fully competent to operate such equipment. The Lessee shall, at the Lessee’s own expense, maintain the equipment and make all repairs and replace all broken or worn out parts in order to keep the equipment in good condition and working order, reasonable wear and tear excepted, throughout the entire rental period, including but not limited to fitness for a particular purpose, merchantability, quality or capacity of the equipment, workmanship in the equipment, compliance with requirements of any law, rule, specification or contract.
Upon equipment return, in the event that the equipment requires repairing or cleaning, the Lessee shall pay to the Lessor the cost of such repairs and cleaning at rates based on current competitive prices chargeable for such repair and cleaning at the location where such cleaning and repair is performed, plus any transportation, accommodation and related expenses. The Lessee shall comply with the reasonable requests by Lessor for the protection of the equipment including transportation and winterization of equipment.
11. Liability of Lessee
The Lessee shall indemnify the Lessor against all loss and damage sustained to the equipment during the rental period and the extent of any such loss and damage shall be based on current new replacement cost of the rented equipment. The Lessee shall indemnify the Lessor against all loss, expenses, penalties, damages and legal costs which the Lessor may suffer or may be required to pay for personal injuries (including death) and/or property damage suffered by any person by reason of the operation, handling, transportation or use of the equipment by or while in the hands of the Lessee or the Lessees employees, agents, or carriers.
The Lessee hereby releases any and all claims which the Lessee may have now or in the future against the Lessor for any loss or damage which the Lessee may suffer, either directly or indirectly, by reason of the condition of the equipment or its suitability for the work it may be required to perform.
12. Force Majeure
In the event the Lessor’s performance, including its ability to deliver the equipment, is hindered or impaired due to “Force Majeure” as defined herein then any resulting delay or failure on the part of the Lessor shall not constitute a default hereunder or give rise to any claim for damages. Force Majeure shall include acts of God, strikes, lockouts or other significant industrial disturbances, sabotage, war, blockades, insurrections or riots, fires, walkouts, arrests and restraints of rules and people, civil disturbances, explosions, malfunctions, interruptions, breakdowns, breakages or accidents to machinery, equipment or systems, shortages or commercial disruptions in the supply of materials, equipment or services, any legislative, administrative or judicial action, transportation restrictions or disruptions, road conditions, weather conditions, any other act, omission or event whether of the kind herein enumerated or otherwise not within the reasonable control of the Lessor. In the event that the performance of the Lessor, is in the reasonable opinion of Lessor is so affected, then Lessor will notify the Lessee in writing providing a workaround plan, if possible, and shall complete the performance of the rental agreement with such adjustments relating to timing as are reasonably required by the existence of the Force Majeure.
13. Event of Destruction or Partial Destruction
If the rented equipment is damaged or destroyed while in the possession of the Lessee, all monies received or receivable by the Lessee under any insurance policy held by the Lessee covering rental equipment shall forthwith be paid to the Lessor in an amount required to cover the remaining rent for the term of the rental period plus the cost of repair to the equipment and/or replacement cost of the equipment. In the event that insurance monies are for any reason whatsoever insufficient to cover the cost of damage, rent, repair cost, replacement of the rented equipment, the Lessee shall upon demand pay to the Lessor an amount equal to such deficiency. In the event that the damage should render the equipment unfit for use by the Lessee, then this rental agreement shall, at the election of the Lessor be terminated on Five (5) days written notice directed to the Lessee and the Lessee shall pay to Lessor such accrued rental fee as may then be due. In the event that the Lessor does not elect to terminate this rental agreement by reason of the destruction or partial destruction of the equipment then the Lessor shall replace the equipment with the same or similar equipment (but not of lesser quality) within thirty (30) days from the date of such destruction or damage rendering the equipment unusable and there shall be no abatement of rent in favor of the Lessee.
The Lessee shall indemnify and save harmless Lessor from any, and all liability, damages, costs, claims, suits or actions arising out of:
(a) Any damage to the equipment, excluding damage caused by Lessor, its agents or sub-contractors.
(b) The use, occupancy or possession of the equipment by the Lessee including any environmental claims.
(c) Any injury to person or persons including death resulting at any time therefrom or occurring in or about the equipment.
(d)Any injury to person or persons including death or damage to property occasioned by the use or occupancy of the said Equipment or during the transportation of the equipment by the Lessee, its employees or agents.
(e) Lessor’s ownership of the equipment.
The Lessor makes no representation or warranty, express or implied, that the equipment is, or will be, free of mold, bacteria or other biological contaminants of any nature whatsoever. The Lessee acknowledges that it is an express term of the rental agreement that Lessor and its officers, directors, employees, agents, affiliates and other representatives shall have no responsibility or liability, in contract, tort or otherwise, to the Lessee or its officers, directors, employees, agents, affiliates or other representatives or any other person who occupies or otherwise uses the equipment, for any loss, damages or other claim arising from any presence of mold, bacteria or other biological contaminants in or on the equipment. In the event that the Lessor and/or any of its officers, directors, employees, agents, affiliates and representatives are found liable in any amount, tort or otherwise, to any person for any loss, damages or other claims arising from any presence of mold, bacteria or biological contaminants in or on the equipment, the Lessee agrees to fully indemnify the Lessor and its officers, employees, agents, affiliates and representatives in respect of all amounts for which they are found liable.
Further, the Lessee agrees to indemnify Lessor and its officers, directors, employees, agents, affiliates and representatives for all legal fees and disbursements incurred in responding to any claim against any of them relating to or rising from presence or alleged presence of mould, bacteria or other biological contaminants in or on the equipment.
The Lessee during the term of this Lease will insure and keep insured the Equipment, to the extent possible, and every part thereof by insurance in the name of the Lessee with first loss payable to the Lessor for the full insurance value as specified against loss or damage from fire, lightning, explosion, windstorm, hail, riot, smoke damage, flood or from whatever cause arising. The insurance policy shall contain a provision whereby the Insurer waives any rights of subrogation which the Insurer may have with respect to the Lessor. Premiums for such insurance shall be paid by the Lessee and a certificate of insurance shall be deposited with the Lessor if so requested by the Lessor. All such insurance shall be carried with an Insurer satisfactory to the Lessor. The Lessee shall be responsible for any and all deductibles. The Lessee covenants that it will maintain and keep in force during the term of this rental agreement, commercial general liability covering public liability and property damage in a sum not less than Two Million ($2,000,000.00) Dollars without recourse to the Lessor with an insurer reasonably satisfactory to the Lessor and the Lessee shall deposit with the Lessor a certificate of insurance evidencing such insurance if so requested by the Lessor. The insurance policy or policies shall contain an endorsement whereby the Insurer waives any right of subrogation that the Insurer may have with respect to the Lessor. In the event that the Lessee shall fail to insure and keep insured as herein provided and provide evidence of such insurance when requested, the Lessee agrees to be invoiced and thereafter to pay for insurance covering all equipment rented to the Lessee under this rental agreement based on the value of the equipment, and the amount thereof shall be payable with the next ensuing monthly installment of rent.
16. Levies, Liens and Seizure
The Lessee shall keep the equipment free of levies, liens and encumbrances, and shall pay all assessments, charges and taxes (whether federal, provincial, or municipal) which may be levied or assessed directly or indirectly against or on account to the said equipment or any interest therein or use thereof. If the Lessee fails to pay such fees, assessments, charges or taxes, the Lessor may pay them, in which event the cost thereof together with the Lessor’s service charges for payment thereof (8% of amount paid) shall constitute additional rent which shall become immediately due and payable as arrears of rent. The Lessee agrees to give the Lessor immediate notice in case the rental equipment is liened, charged or otherwise becomes subject to any seizure proceedings.
The Lessor retains full title and rights to the equipment and the Lessee will not during the term of this rental agreement, sell, offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the equipment or any part of parts thereof, or with the benefit of this Lease or do or cause or permit to be done any act or thing which might prejudice the Lessor’s rights in the Equipment without the Lessor’s consent in writing. The Lessee agrees that the equipment is a chattel and if placed on land owned by the Lessee, shall not be deemed to be a fixture and if placed on lands other than those owned by the Lessee, the Lessee shall secure from the owner of such lands an undertaking that the Equipment shall not be deemed a fixture and may be removed at any time without notice in accordance with the terms of the rental agreement.
18. Condition of Equipment
Lessee shall not assign this rental agreement without the prior written consent of Lessor which consent shall not be unreasonably withheld.
In the event that the Lessee threatens to cease to continue to carry on business, becomes insolvent or bankrupt, voluntarily or involuntarily, or fails to maintain and operate or to return the equipment, or violates any provision hereof, the Lessor may upon giving the Lessee three (3) days prior written notice, terminate the lease, re-take possession of the equipment without liability of any kind, without prejudice to the Lessor’s right to recover all rentals due and full damages for any injury to and all expenses incurred in obtaining the return of the equipment.
21. Risk of Loss
Delivery of equipment to Lessee will be deemed to occur as on date of shipment by Lessor to Lessee and all risk of loss is thereafter born by Lessee. Lessee assumes all liability for loss once equipment is loaded on their carrier and equipment leaves the Lessor.
22. Customer Security Deposit
It is understood and agreed between the parties that the Lessor may require a security deposit and such deposit if required will be retained by the Lessor until such time as the equipment is returned and inspected. Payment of this security deposit does not relieve the Lessee from paying any rental, transport or other charges under this rental agreement and the Lessor may, at its sole discretion, apply the security deposit against amounts owing by Lessee under this rental agreement. The Lessor shall return the security deposit when, in Lessor’s reasonable opinion, it is no longer required. No interest shall be payable on any security deposit held by the Lessor.
23. Third Party Payments
The Lessee will duly obtain and punctually pay all rent, rates, taxes, including property taxes, regulatory approvals, permits, charges, licenses, tariffs, tolls and impositions of every nature and kind whatsoever incurred and which may be payable in respect to the transportation, possession or use of the equipment or in respect of the lands on which the equipment shall from time to time be situated and will protect the equipment against distress, execution or seizure and indemnify the Lessor against all losses, cost, charges, demands or expenses incurred by the Lessee by reason of or in respect of any distress, execution, seizure or failure of the Lessee to make payments as herein required. The Lessor shall not in any way be obliged to ascertain, obtain and/or advise the Lessee of any requirements of any jurisdiction in which the Equipment is to be transported in, used by or in possession of the Lessee. In the event that the Lessor is required to seek redress for the courts for any amount claimed under this paragraph the Lessee agrees to pay the costs of the Lessor on a full indemnity basis.
24. Entire Agreement
Save and except as expressly set out in this rental agreement there are no representations, warranties, collateral warranties or conditions given or made by the Lessor with respect to the equipment including without limiting the generality of the foregoing, the condition of the equipment, its merchantability, its fitness for a particular purpose or its compliance with federal, provincial or local building codes, by-laws or regulations. This rental agreement constitutes the entire agreement between the parties, superseding and replacing all prior documents and representations with respect to the subject matter herein. If any provision of this rental agreement is deemed unenforceable for any reason, then that provision shall be severed from this rental agreement and all other terms and conditions herein shall remain in effect and be binding on the parties. This rental agreement may only be amended in writing buy a document signed by both parties. The headings in these terms and conditions are for convenience only and do not constitute terms of this Agreement.
Any notice to either party shall be in writing and may be mailed by prepaid registered post to the other party. Any notice for the Lessor must be sent to:
20204 110 Ave NW,
Edmonton, AB T5S 1X8
Attn: Brad Abel
Any notice for the Lessee shall be sent to their head office in Alberta or the head office in the Province in which the equipment is rented. Alternatively, any address which accompanies payment of the rent or any other address designated by the Lessee. Any notice shall be deemed to be received by the addressee on the third business day next following that on which it was mailed.
The Lessee must seek written authorization from the Lessor for any “Racking” of the leased equipment. Any time period granted for “Racking” by the Lessor shall be limited to no more than NINETY (90) days. During any period of agreed “Racking” the Lessee shall not have to pay the full rental amount however must ensure that the rented equipment is insured for full replacement value and the Lessor had unrestricted access to the rented equipment.
No failure on the Lessor’s part to exercise any power reserved for it herein, or to insist on strict compliance by the Lessee will constitute a wavier by the Lessor of its ability to demand strict compliance. Waiver by the Lessor of any particular default shall not impair its ability to demand strict compliance on any subsequent default of a similar or identical nature.