1 Applicability.
1.1 By the Equipment Rental Agreement between Kinetic Safety Ltd. (“Kinetic”) and the Customer (as set forth in the Equipment Rental Agreement), these Terms and Conditions (these “Terms”) and any schedules or exhibits attached to the Equipment Rental Agreement (collectively, the “Agreement”), Kinetic, subject to the terms and conditions of this Agreement, rents to the Customer, the equipment and all ancillary items and accessories associated with and necessary for the proper operation of the equipment (as set forth in the Equipment Rental Agreement) (the “Equipment”).
1.2 The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Equipment Rental Agreement, these Terms shall govern.
1.3 These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Renting of Equipment to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2 Term.
2.1 The term (“Term”) of the rental for Equipment shall commence on the date on which the Equipment is retrieved by the Customer from Kinetic (the “Date Out”) and shall expire on earlier of (i) the date on which such Equipment is returned to Kinetic (the “Date Returned”) or (ii) the date on which Kinetic terminates this Agreement in accordance with the provisions hereof.
2.2 Kinetic may terminate this Agreement at any time in its sole and absolute discretion if the Customer fails to observe, keep or perform any term, provision, agreement or covenant of this Agreement required to be observed, kept or performed by the Customer.
3 Rent and Interest on Overdue Rent.
3.1 The Customer shall pay to Kinetic, as rent for the use of the Equipment for the duration of the Term, the Rental Rate per day as set forth in the Equipment Rental Agreement multiplied by the number of days in the Term (“Rent”).
3.2 All Rent due under this Agreement shall be paid monthly pursuant to invoices issued by Kinetic to the Customer, unless otherwise agreed to in writing by the parties. The Customer’s obligation to pay the Rent, taxes and any other amounts required by this Agreement shall be absolute and unconditional and shall be without any deduction, set-off, abatement, holdback or claim for compensation whatsoever.
3.3 The Customer shall pay GST (and any other value, added, goods and services or similar taxes that may apply from time to time) on the Rent at the time each Rent payment is due.
3.4 All overdue payments of Rent shall bear interest at the rate of 1.5% per month (18% per annum) on the unpaid balance from the date such payment was due until the date paid without prejudice to Kinetic’s rights, and in particular without prejudice to Kinetic’s right herein stipulated to terminate this Agreement for non-payment of Rent.
4 Security Interest. The Customer hereby further confirms that this Rental Agreement and any extension or renewal or replacement hereof constitutes a security interest. The Customer agrees and consents to Kinetic filing any and all documentation required by any governmental authority whatsoever in any jurisdiction requiring registration of any such security interest, or interests, as are created by this Agreement and agrees to reimburse and indemnify Kinetic for any expenditure that might be incurred in registering any document required by any jurisdiction or government authority in that regard. The Customer acknowledges receipt of a duplicate copy of this Agreement and waives its right to receive a copy of any document verifying registration of this Agreement.
5 Default.
5.1 If the Customer with regard to any item or items of Equipment fails to pay any Rent or other amount herein provided within ten (10) days after the same is due and payable, or if the Customer with regard to any item or items of Equipment fails to observe, keep or perform any other term, covenant or provision of this Agreement required to be observed, kept or performed by the Customer, Kinetic shall have the right at its sole and absolute discretion to exercise any one or more of the following remedies, all of which are cumulative, and may be exercised concurrently or separately by Kinetic:
(a) to declare the entire amount of Rent hereunder immediately due and payable as to any or all items of Equipment;
(b) to sue for and recover all Rent, and other payments then accrued or thereafter accruing, with respect to any or all items of Equipment;
(c) to take possession of any or all items of Equipment without demand or notice, wherever same may be located without any court order or other process of law. The Customer hereby waives any and all damages occasioned by such taking of possession of Equipment. Any said taking of possession of Equipment shall not constitute a termination of this Agreement as to any or all items or Equipment unless Kinetic expressly so notifies in writing;
(d) to terminate this Agreement as to any or all items or Equipment; and
(e) to pursue any other remedy at law or in equity.
5.2 Notwithstanding any said repossession of Equipment, or any other action which Kinetic may take, the Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to be performed under this Agreement.
6 Equipment: Acceptance, Use, Location, Loading and Shipping.
6.1 In the event the Equipment fails to operate in accordance with the manufacturer’s specifications or operating instructions during the Term, Kinetic shall use commercially reasonable efforts to replace the Equipment with identical or similar equipment. Such replacement Equipment shall be made as soon as reasonably practicable after the Customer returns the non-conforming Equipment to Kinetic.
6.2 The Customer shall comply with all laws relating to the use, operation or maintenance of the Equipment. In addition, the Customer shall:
(a) comply with and conform to all applicable laws, ordinances and regulations relating to the delivery, rental, possession, use, maintenance or redelivery of the Equipment (“Applicable Laws”), and obtain, maintain and comply with all necessary permits and licenses relating to the Equipment;
(b) use the Equipment in a careful and prudent manner, in accordance with the manufacturer’s specifications, in accordance with all Applicable Laws and not for any unlawful purpose;
(c) ensure that the Equipment is operated only by competent and properly trained personnel who have all licenses, permits and approvals required by law to operate the Equipment, are wearing appropriate protective clothing and equipment and are not under the influence of drugs or alcohol;
(d) ensure the Equipment is operated in accordance with the methods and standards of operation recommended and approved by the manufacturer of the Equipment, and in accordance with any Applicable Laws;
(e) ensure that the Equipment, when not in use, is stored safely and protected from theft, loss or damage;
(f) ensure that all safety and operating information supplied with the Equipment is attached to or otherwise kept with the Equipment and brought to the attention of any person using the Equipment; and
(g) maintain any manuals and log books supplied with the Equipment.
6.3 The Equipment shall be located at that location (the “Location”), if any, set out in the Equipment Rental Agreement, and shall not be removed from such Location without Kinetic’s prior written consent. The Equipment shall not be removed from the Province of Alberta without Kinetic’s prior written consent.
6.4 All expenses relating to retrieval and return of the Equipment shall be borne by the Customer.
7 Maintenance of, and Repairs to, Equipment; Downtime.
7.1 The Customer shall, at its own expense, lawfully maintain and use the Equipment. Any and all work performed to prepare, assemble, install or repair the Equipment may be completed by Kinetic or supervised by Kinetic at its sole and absolute discretion.
7.2 During the term of this Agreement, the Customer shall at the Customer’s own expense, (a) pay the cost of all supplies, if any, required to operate and maintain the Equipment, and (b) all repairs, replacement parts including labour charges, required to be made to the Equipment in order to keep it in good repair and running order.
7.3 The Customer shall maintain all operational, service, maintenance and repair records as required by Kinetic, and shall make such records and logs available to Kinetic at all times
7.4 Should Kinetic suffer lost rentals or incur expenses as a result of the unavailability of the Equipment while it is being repaired by the Customer or Kinetic, due to damage or loss of the said Equipment arising during the Term of this Agreement, then such lost rentals and expenses shall be the sole responsibility of the Customer and the Customer shall forthwith pay and/or reimburse Kinetic for the same.
8 Damage to Equipment.
8.1 The Customer shall be responsible for, and shall compensate Kinetic for any damage to the Equipment and any loss to Kinetic caused by such damage (including but not limited to loss of income), whether or not such loss or damage results from, but is in no way limited to, the use or operation of the Equipment in a negligent, reckless or abusive manner, intentional or unintentional damage to the Equipment by the Customer or any person acting for or on behalf of the Customer, or under any of the following circumstances:
(a) use or operation of the Equipment by a person other than an authorized operator;
(b) use or operation of the Equipment other than in accordance with this Agreement and applicable laws, and in particular, without limitation, other than in accordance with Section 6.2 of this Agreement;
(c) all loss and damage associated with vandalism, malicious mischief, theft or conversion of the Equipment;
(d) the failure of the Customer to perform the basic maintenance required under Section 7 of these Terms;
(e) any loss or damage that results from the failure of the Customer to comply with this Agreement; or
(f) the Customer’s failure to secure the Equipment or by not reasonably restricting access to the Equipment.
8.2 The Customer hereby assumes and shall bear the risk of loss and damage to the Equipment from any and every cause whatsoever and shall keep and maintain the Equipment in good repair, condition and working order. No loss or damage to the Equipment or any part thereof shall impair any obligation of the Customer which shall continue in full force and effect. In the event of loss or damage of any kind whatsoever to any item of Equipment, the Customer will, at the option of Kinetic, either replace damaged or lost Equipment at the current new market value or pay for the repair of the damaged Equipment to Kinetic’s satisfaction. The cost of such repairs to be borne by the Customer together with interest in the outstanding balance at the rate of 1.5% per month (18% per annum) from date of invoice to the date of payment.
9 No Alterations to Equipment.
9.1 Without the prior written consent of Kinetic, the Customer shall not make any alterations, additions or improvements to the Equipment. All additions and improvements of whatsoever kind or nature made to the Equipment shall belong to and become the property of Kinetic immediately upon the existence of such additions and or alterations. The Customer shall not tamper with the Equipment in any manner. If the Equipment has been tampered with or has been altered without the prior written consent of Kinetic, the Customer agrees to pay the full replacement cost of the Equipment plus applicable service fees to Kinetic.
9.2 The Customer will not alter, remove, disfigure, deface, cover up, or otherwise obscure any marks, markings, insignia, letters, numbers or symbols that designate the Equipment the property of Kinetic or otherwise identifies the Equipment. Further, at Kinetic’s request, the Customer shall its own expense affix and maintain on the Equipment, in a manner and places satisfactory to Kinetic, labels, plates or other marks supplied by Kinetic to identify the Equipment as the property of Kinetic.
10 Inspection of Equipment. Kinetic shall at any and all times during normal business hours have the right to enter into and upon any premises where the Equipment may be located for the purpose of inspecting the same or observing its use. The Customer shall give Kinetic immediate notice of any attachment or other judicial process which affects or may affect any item of Equipment and shall whenever requested by Kinetic advise Kinetic the exact location of the Equipment.
11 Ownership of Equipment.
11.1 The Equipment is, and shall at all times be and remain, the sole and exclusive personal property of Kinetic (or the owner where Equipment is leased by Kinetic) notwithstanding that the Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached to, or imbedded in, or permanently resting upon, real property or any building thereof. The Customer acknowledges that any Equipment that is affixed or attached to any other property is solely for the better use of Equipment, and the Customer shall detach the Equipment from the Customer’s or other person’s property when required by Kinetic. Any damage caused to the Equipment by such acts shall be the responsibility and at the cost of the Customer.
11.2 Customer shall have no right, title or interest in or to the Equipment except as expressly set forth in this Agreement. Customer shall take no steps to register nor shall Customer allow to be registered any other filings, registrations, statements or notices that shall lessen the priority and/or perfection of Kinetic’s interest (or the owner’s interest where Equipment is leased by Kinetic) in the Equipment in any jurisdiction, including in any jurisdiction in which this Agreement (or a filing, registration, notice or statement in respect hereof) is registered. When required by Kinetic, the Customer shall give written notice of Kinetic’s rights in and to the Equipment in a form acceptable to Kinetic and delivered to the party(ies) specified by Kinetic.
12 Return of Equipment. On the Date Returned or earlier termination of this Agreement, the Customer shall return the Equipment to Kinetic in good repair, condition and working order. Prior to the return of any Equipment, Customer shall ensure that normal service maintenance has been carried out on the Equipment in accordance with Section 7 of these Terms.
13 Taxes and Encumbrances. The Customer shall keep the Equipment free and clear of all levies, liens and encumbrances and shall pay all license fees, registration fees, assessments, charges, taxes and encumbrances (municipal, provincial, territorial and federal) which may now or hereafter be imposed upon the leasing, renting, possession or use of the Equipment.
14 Insurance. Customer shall, at its sole expense, arrange and maintain during the Term insurance for the Equipment against all risks of loss or damage from any cause whatever for not less than its full replacement value as determined by Kinetic or as Kinetic may require from time to time. Customer shall also carry comprehensive commercial liability insurance in respect of the Equipment. All insurance shall be in such form and amounts and with insurers approved by Kinetic and, at Kinetic’s option, with Kinetic specifically designated as an additional insured and loss payee. Customer shall produce, from time to time, evidence of insurance required hereby as may be requested by Kinetic. Customer shall provide Kinetic with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy.
15 DISCLAIMER OF WARRANTIES. Kinetic is not the manufacturer of the Equipment. Kinetic makes no warranty or guarantee as to the supplier or the manufacturer of the Equipment. KINETIC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, SUITABILITY, UTILITY, CONDITION, CAPABILITIES OR CAPACITIES, OR ANY OTHER MATTER WITH RESPECT TO THE EQUIPMENT. Except for replacement of any non-conforming Equipment as set out in Section 6.1, Kinetic shall not be responsible if the Equipment is defective or unacceptable for any reason, including a failure in its performance, capacity or operations. Any warranties or guarantees provided under applicable Sales of Goods legislation shall be in reference to the manufacturer of the Equipment and not Kinetic. The Customer acknowledges that the Equipment was supplied at its own request.
16 LIMITATION OF LIABILITY.
16.1 IN NO EVENT SHALL KINETIC BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.2 IN NO EVENT SHALL KINETIC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE RENT ACTUALLY RECEIVED BY KINETIC FROM THE CUSTOMER FOR THE EQUIPMENT AT THE TIME THE CAUSE OF ACTION ARISES.
17 Indemnification. The Customer shall operate the Equipment at its own risk. The Customer shall indemnify Kinetic against, and hold Kinetic harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including solicitor’s costs on a solicitor-client basis, arising out of connection with, or resulting from this Agreement, a breach of this Agreement, the rental of the Equipment to the Customer and the use by the Customer of such Equipment, including without limitation: any personal injury, illness or death of any individual, including any third party and the parties hereto, their subsidiaries and affiliates, and their directors, officers, employees, consultants, shareholders, partners, agents and advisors; and the use, selection, delivery, possession, operation, or return of the Equipment. In addition, the Customer shall indemnify and hold harmless Kinetic against any and all loss or damage to the Equipment arising after acceptance of the Equipment by the Customer and prior to return thereof to Kinetic including all costs incurred in respect of repairing or replacing Equipment in connection with such loss or damage, together with any Rent payable while the Equipment is being repaired or replaced.
18 Assignment.
18.1 All rights of Kinetic hereunder may be assigned, pledged, mortgaged, transferred, or otherwise disposed of, either in whole or in part, without notice to the Customer.
18.2 Without the prior written consent of Kinetic, the Customer shall not assign, transfer, pledge, or hypothecate this Agreement, the Equipment or any part thereof, or any interest therein; or sublet or lend the Equipment or allow any part thereof to be used by anyone other than the Customer.
19 Confidential Information. Any information obtained by the Customer from Kinetic relating to Kinetic, the Equipment or determined through the use of the Equipment (“Confidential Information”) shall not be divulged to any third party by the Customer without the prior written consent of Kinetic, except where disclosure is required by law. In addition, the Customer shall not duplicate, transfer, sell, publish, transmit, modify or reverse-engineer any of the Confidential Information.
20 Force Majeure. Kinetic shall incur no liability whatsoever for any delay or failure to deliver the Equipment or for any delay or failure to perform any of its obligations hereunder by reason of Force Majeure. For the purposes of this Section 20, “Force Majeure” shall mean any act, event, cause or condition that prevents Kinetic from performing its obligations and that is beyond Kinetic’s reasonable control, and will include: (a) acts of God; (b) floods, fires, earthquakes or explosions; (c) local, regional or national states of emergency; (d) strikes and other labour disputes (whether or not relating to Kinetic’s workforce); (e) civil disobedience or disturbances, war, invasion or hostilities (whether war is declared or not) acts of sabotage, blockades, insurrections, terrorism, revolution, riots; (f) epidemics, pandemics, outbreaks, or COVID-19; and (g) an order, judgment, legislation, ruling, mandate or direction by governmental bodies or authorities restraining Kinetic.
21 General.
21.1 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Kinetic. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
21.2 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein and the parties attorn to the non-exclusive jurisdiction of the courts of the Province of Alberta with respect to any dispute arising in connection with this Agreement.
21.3 Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Equipment Rental Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail, facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid) and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient or on the next business day if not sent during normal business hours, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery.
21.4 Time of the Essence. Time is of the essence of this Agreement.
21.5 Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
21.6 Waiver. Any failure of a party hereto to require strict performance by the other party hereto, or any written waiver by a party hereto of any provision hereof, shall not constitute consent or waiver of any other breach of the same or any other provision hereof.
21.7 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this order including, but not limited to, the following provisions: Sections 3.3, 3.4, 4, 5, 6.2, 6.3, 6.4, 7.4, 8, 9, 11, 13, 16, 17, and 19. In addition, all representations, warranties, covenants, agreements and indemnities contained in this Agreement or in any other instruments delivered by or on behalf of the parties hereto shall be continuous and survive the expiration or termination of this Agreement
21.8 Amendments and Modifications. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.