HireAir, a Division of AGL On-Site Solutions Inc.
Rental Agreement Terms & Conditions
1. INTRODUCTION AND SCOPE
The following terms and conditions of sale (the “Rental Agreement Terms & Conditions”) set out the general conditions for renting Equipment from HireAir, a Division of AGL On-Site Solutions Inc.
“HireAir” shall mean HireAir, a Division of AGL On-Site Solutions Inc.
Any person or representative of an organization who enters into a Rental Agreement with HireAir, shall be deemed to have accepted and agreed to comply with these Rental Agreement Terms & Conditions and the Applicable Laws.
2. DEFINITIONS
“Customer Responsibilities” shall mean Customer Responsibilities document attached to and included with the Rental Agreement.
“Rental Agreement” shall mean the applicable Rental Agreement between HireAir and Customer to which Customer Responsibilities and the Terms and Conditions apply.
“Equipment” is the Equipment and/or services identified in the “Rental Agreement”, together with all replacements, repairs, additions, attachments and accessories and all future Equipment rented.
“Telematics Data” is data collected within the Equipment or via software relating to the Equipment, its performance, location, or operators.
“Lost” means the Equipment is either stolen, its location is unknown, or Customer is unable to recover it for a period of 30 days.
“FMV” is the Equipment’s fair market value on or about the date of the Incident relating to the Equipment loss, plus any administrative fees and expenses.
“One Shift” means not more than 8 hours per day, 40 hours per week and 160 hours every 4-week period.
“Ordinary Wear and Tear” means normal deterioration considered reasonable in the equipment rental industry for One Shift use. The following shall not be considered reasonable wear and tear:
(1) damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels, cavitation or freezing;
(2) except where HireAir expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of servicing or preventative maintenance suggested in the manufacturer’s operation and maintenance manual;
(3) damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment;
(4) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof;
(5) wear resulting from use in excess of shifts for which rented;
(6) and any other damage to the Equipment which is not considered ordinary and reasonable in the Equipment rental industry.
“Rental Period” commences when the Equipment ships from the rental hub to be delivered to Customer or the Site Address as stated on Rental Agreement and continues until the Equipment is returned to or picked up by HireAir during normal business hours.
“Transportation Surcharge” is a charge intended to defray a wide range of transportation expenses (both direct and indirect), which are not always fully recovered by other transportation charges.
3. INDEMNITY
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HIREAIR, AND ALL OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO THE (A) INSTALLATION, OPERATION, USE, ALTERATION, MODIFICATION, REMOVAL, POSSESSION OR RENTAL OF THE EQUIPMENT, (B) CLAIMS BY ANY CUSTOMER, INDEPENDENT CONTRACTOR OR CUSTOMER EMPLOYEE, AGAINST CUSTOMER, INCLUDING BUT NOT LIMITED TO ANY CLAIM THAT CUSTOMER FAILED TO DISCLOSE OR OBTAIN CONSENT TO DATA COLLECTION CONTEMPLATED UNDER THIS AGREEMENT OR (C) ERRORS, OMISSIONS, INACCURACIES OR MISREPRESENTATIONS (WHETHER INTENTIONAL OR INADVERTENT) IN THE DOCUMENTS OR OTHER INFORMATION PROVIDED BY CUSTOMER, OR OBTAINED FROM OTHERS (INCLUDING ANY THIRD-PARTY DOCUMENTS OR DOCUMENTATION), UPON WHICH HIREAIR RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST HIREAIR BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY HIREAIR FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF HIREAIR. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS AGREEMENT, CUSTOMER EXPRESSLY AND SPECIFICALLY AGREES THAT THE FOREGOING OBLIGATION TO INDEMNIFY SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL LIMITATION OF LIABILITY OR IMMUNITY CUSTOMER ENJOYS FROM SUITS BY ITS OWN EMPLOYEES. THE DUTY TO INDEMNIFY WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE AGREEMENT.
4. RENTAL PERIOD
The rental period shall commence from the date of the shipment of the rental Equipment, accessories, and related ancillary parts and consumables included in the Rental Agreement from the point of shipment and shall continue until to the return of the Equipment to HireAir’s location or another, prearranged in writing, location. Rental charges with respect to any rental periods beyond applicable minimum rental periods as stated in the Rental Agreement, shall be prorated daily with respect to the rental period determined herein. Rental charges accrue during Saturdays, Sundays and Holidays. Rental rates are for normal “one shift” usage based on an eight (8) hours day, 40 hours per week and 160 hours per four-week period.
5. TERMS
Customer’s execution of this Contract or taking possession of the Equipment (whichever occurs first) shall be deemed acceptance of the terms herein for this and all past and future contracts between HireAir and Customer, upon Customer’s receipt of HireAir’s Equipment under those contracts. Customer rents the Equipment from HireAir pursuant to this Contract, which is a true lease. The Equipment (a) is and shall remain the personal property of HireAir and (b) shall not be affixed to any other property. Customer shall not pledge or encumber the Equipment in any manner.
6. PERMITTED USE
Customer agrees and warrants that (a) HireAir has no control over the manner in which the Equipment is operated during the Rental Period by Customer or any third party that Customer implicitly or explicitly permits, (b) prior to each use and its return to HireAir, Customer shall inspect the Equipment to confirm that the Equipment is in good condition, without defects, readable decals are on the Equipment, and the Equipment is suitable for Customer’s intended use; (c) Customer has access to and reviews the operating and safety instructions and will operate the Equipment in accordance with the manufacturer’s instructions and with applicable safety Equipment; (d) any apparent agent at the Site Address is authorized to accept delivery of the Equipment (and if Customer requests, Customer authorizes HireAir to leave the Equipment at the Site Address without requirement of written receipt); (e) Customer shall immediately stop use and notify HireAir if the Equipment is damaged, unsafe, disabled, malfunctioning, warning lights come on, levied upon, threatened with seizure, Lost, or if any incident occurs; (f) Customer has received from HireAir all information needed or requested regarding the operation of the Equipment; (g) HireAir is not responsible for providing operator or other training unless Customer specifically requests in writing and HireAir agrees to provide such training (Customer being responsible to obtain all training that Customer desires prior to the Equipment’s use); (h) HireAir is not responsible for Customer’s obligation to provide reasonable accommodation(s) to any Authorized Individual(s); (i) only Authorized Individuals shall use and operate the Equipment, however Customer is responsible for the Equipment and its use during the Rental Period regardless of the user; (j) the Equipment shall be used and maintained in a careful manner, within the Equipment’s capacity and in compliance with all applicable laws, regulations, as well as all operating and safety instructions provided on, in or with the Equipment and all applicable federal, provincial, territorial and local laws, permits and licenses, including but not limited to, work place health and safety statutes; (k) the Equipment shall be kept in a secure location; and (l) Customer shall provide HireAir with accurate and complete information, which HireAir relies upon to provide the appropriate Equipment to Customer.
7. PROHIBITED USE
Customer shall not (a) alter or cover up any decals or insignia on the Equipment, remove any operating or safety Equipment or instructions or alter or tamper with the Equipment; (b) assign its rights under this Contract; (c) move the Equipment from the Site Address without HireAir’s written consent; (d) use the Equipment in a negligent, illegal, unauthorized or abusive manner; or (e) publicize use of the Equipment in any manner (including, without limitation, print, audiovisual or electronic); or (f) allow the use of the Equipment by anyone other than Authorized Individuals (Customer acknowledging that the Equipment may be dangerous if used improperly or by untrained parties).
8. DETERMINATION OF RENTAL CHARGES
Each piece of Equipment (including any related accessories) listed in the Rental Agreement shall be provided to Customer for the rental period and at the rental rate therein stipulated. The minimum rental period for any piece of Equipment is one (1) month, defined as twenty-eight consecutive days unless otherwise stated in the Rental Agreement.
No allowance will be made for any rental Equipment or portion thereof which it is claimed not to have been used. Acceptance of returned rental Equipment by HireAir does not constitute a waiver of any of the rights of HireAir under this rental agreement.
9. PAYMENT
All rentals and other charges due under the Rental Agreement are due and payable within fifteen (15) days from delivery of invoice; provided, however, within the Rental Agreement, HireAir may demand that (a) rent shall be due and payable in advance on a weekly basis and/or (b) payment for the minimum rental period shall be due before the delivery of the Equipment to Customer or the latter’s agent or carrier. In addition, if Customer becomes delinquent on any payments due and owing under the rental agreement or any other rental agreement with HireAir, HireAir in its sole discretion, may change payment terms to advance billing and payment due upon receipt. All overdue payments, for all charges, including damages and losses, shall bear interest at the lesser of 18% per annum or the highest amount otherwise allowed by applicable law, without prejudice to HireAir’s other rights hereunder or under applicable law. Any invoicing requirements of Customer must be provided to HireAir before Customer’s acceptance of the Rental Agreement or will be deemed waived by Customer.
Customer shall pay for the rental of Equipment, materials and all other items and services identified in this Contract and all other amounts due, without any offsets, in full, in advance at the time of rental, unless HireAir approves Customer’s executed commercial credit application.
Commercial Customers who are approved for HireAir’s extended payment terms must pay, in arrears, upon receipt of HireAir’s invoice, either by cash, check or ACH. Customer must notify HireAir in writing of any disputed amounts, including credit card charges, within fifteen (15) days after the receipt of the invoice/contract or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. At HireAir’s discretion, any account with a delinquent balance may be placed on a cash basis, deposits may be required, and the Equipment may be picked up without notice. Due to the difficulty in fixing actual damages caused by late payment, Customer agrees that a service charge equal to the lesser of 18% per annum or the maximum rate permitted by law shall be assessed on all delinquent accounts, until paid in full. Customer shall reimburse HireAir for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Customer from any default under this Contract. Customer shall pay a fee of $75 for each check returned for insufficient funds to compensate HireAir, for its overhead for processing missed payment. Deposits will be returned only after all amounts are paid in full.
CUSTOMER AGREES THAT IF A CREDIT OR DEBIT CARD IS PRESENTED TO PAY FOR CHARGES OR TO GUARANTEE PAYMENT, CUSTOMER AUTHORIZES HIREAIR TO CHARGE THE CREDIT OR DEBIT CARD ALL AMOUNTS SHOWN ON THIS CONTRACT AND CHARGES SUBSEQUENTLY INCURRED BY CUSTOMER, INCLUDING BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO THE EQUIPMENT AND EXTENSION OF THE RENTAL PERIOD.
Where permitted by law, HireAir may impose a surcharge of 2% for credit card payments on charge accounts. This surcharge is not greater than HireAir’s merchant discount rate for credit card transactions and is subject to sales tax in some jurisdictions.
10. DEFAULT AND REMEDIES
Customer shall be in default under the Rental Agreement if any of the following events occur: (i) Customer fails to make any payment in accordance with the terms of the Rental Agreement, or any other rental agreement with HireAir, and such failure continues for a period of five (5) days, (ii) Customer fails to comply with any other term or provision of the Rental Agreement, or any other rental agreement with HireAir, and such failure continues for a period of ten (10) days after receipt of notice of such failure from HireAir, (iii) Customer becomes bankrupt, insolvent or makes an assignment for the benefit of its creditors, (iv) involuntary bankruptcy or receivership proceedings are instituted against Customer or its direct or indirect parent company and such petition or proceeding is not stayed or withdrawn within forty-five (45) days, (v) HireAir reasonably believes that Customer is unable to comply with the payment terms of the Rental Agreement, or any other rental agreement with HireAir, or is likely to become bankrupt, insolvent or make an assignment for the benefit of its creditors. (vi) the Equipment is lost, damaged, stolen, destroyed, or seized by a governmental agency after it had been placed in the possession of Customer, (vii) HireAir has a reasonable belief that a material risk of damage to the Equipment exists or that Customer cannot adequately protect the Equipment or (viii) a Force Majeure event that lasts longer than fifteen (15) days. Upon any such default, HireAir may at its option, upon prior notice in writing exercise any one or more of the following remedies: (a) suspend Customer’s right to use the Equipment and related services, (b) terminate the Rental Agreement, (C) during normal business hours enter any premises owned, operated or controlled by Customer where any Equipment is used or otherwise may be found (each, and “Equipment Location”) and remove the same therefrom. Except in the case of gross negligence or willful misconduct, HireAir shall not be guilty of trespass or wrong, or liable for any damages because of such removal of equipment, and Customer agrees to pay all expenses of HireAir and Customer incidental to said removal.
11. LOADING, UNLOADING AND TRANSPORTATION
Customer shall bear the expense of, and responsibility for unloading, and reloading the Equipment at Customer’s receiving point, including all injuries and damages resulting therefrom, and shall pay all demurrage charges incurred at the shipping or receiving points. Customer must have an authorized agent available to sign a bill of lading upon the delivery of the Equipment by the carrier. If no agent is provided at the time of delivery, then Customer authorizes an employee of HireAir to execute the bill of lading as Customer’s limited agent for such purpose and such execution shall be deemed and accepted by Customer of the condition of the Equipment upon delivery, and for all losses occurring to the Equipment thereafter while in Customer’s possession. Customer shall be responsible for shipping expenses from the original point of shipment to Customer’s receiving point and all return shipping expenses to HireAir’s location or such other point as HireAir shall in writing direct, regardless of whether these costs are advanced by HireAir. However, if HireAir directs Customer in writing to return all Equipment to a place other than HireAir’s location, then Customer shall pay the shipping expenses up to, but not beyond, the amount that would have been required to return the Equipment to the HireAir’s location.
12. INSPECTION
Before the Equipment is loaded for transit to Customer, Customer may request an inspection thereof by a qualified inspector. If Customer does not inspect the Equipment before it is loaded for transit, then Customer is conclusively deemed to have accepted all the Equipment is in good running order without broken or worn-out parts and in a clean and unmarred condition. HireAir shall have the right at any time during normal business hours to enter any Equipment location and shall be given free access thereto and afforded necessary facilities for the purpose of inspecting the Equipment once on site.
If Customer fails to comply with any of Customer Responsibilities and Terms and Conditions, HireAir, and its agents, at Customer’s risk, cost and expense, may at any time, enter Customer’s premises where the Equipment is located, stored, or used at all times and recover the Equipment.
13. MAINTENANCE, OPERATION AND REPAIRS
Customer shall not make any alterations, additions, or improvements to the Equipment without HireAir’s prior written consent. Customer shall at its own expense operate, maintain, keep, and return the Equipment in good repair and return it in the same condition in which it was received, normal wear and tear accepted. Specifically, Customer must:
a) Ensure Equipment is operated by qualified personnel in accordance with applicable manufacturers guidelines and instructions.
b) Ensure Equipment is used for applications within the capacity ratings of the Equipment.
c) Comply with all applicable federal, provincial, and local laws and regulations in connection with operating, handling, and transporting the Equipment.
d) Inspect the Equipment regularly and maintain written, completed inspection checklists.
e) Apply all fuel, coolants, and lubricants necessary to operate the Equipment.
f) Immediately notify HireAir of any known problems or malfunctions or suspected malfunctions or problems or those that should reasonably be known or suspected upon regular inspection that are necessary to keep the Equipment in good running order.
g) Utilize HireAir or its agents to perform all routine preventative maintenance and minor repairs necessary to keep the Equipment in good running order in accordance with OEM prescribed schedules, including, without limitation, the timely replacement of all consumable parts according to the procedures and requirements set forth in the applicable manufacturer’s installation and operating manuals.
h) Replace all broken or worn-out parts on the Equipment, unless otherwise agreed in writing, and notify HireAir immediately of any broken or worn-out parts on the Equipment.
HireAir has no responsibility during the Rental Period to inspect or perform any maintenance or repairs unless Customer requests a service call. If HireAir determines that repairs to the Equipment are needed, other than Ordinary Wear and Tear, Customer shall pay the full repair charges, additional fees, if any, and rental of the Equipment until the repairs are completed. If Equipment is stolen or damaged in excess of 40% of the Equipment’s FMV, Customer will be responsible for the FMV of the Equipment, including sales tax, as applicable. HireAir has the right to inspect the Equipment wherever located. Customer has the authority to and hereby grants HireAir and its agents the right to enter the physical location of the Equipment for the purposes set forth herein. HireAir shall be responsible for repairs needed because of Ordinary Wear and Tear. Customer agrees that repair or replacement of the Equipment is Customer’s exclusive remedy for HireAir’s breach of this Section. Notwithstanding HireAir’s service commitment, if Customer breaches this Contract, HireAir shall have no obligation to stop the Rental Period, commence repairs or rent other Equipment to Customer until Customer or its agent agrees to pay for such charges.
HireAir makes no warranty of any kind regarding the Equipment, except that HireAir shall either replace the Equipment with identical or similar Equipment or repair the Equipment if the Equipment fails to operate in accordance with the manufacturer’s specifications and operating instructions, the conclusion which will be under the sole discretion of HireAir. Such replacement or repairs shall be made as soon as is practical by HireAir after Customer returns the non-conforming Equipment. Customer agrees to pay HireAir for any installation and removal costs as per the estimates provided by HireAir.
14. RETURN OF EQUIPMENT
The Equipment shall be returned to HireAir (when needed for inspections, maintenance and at the end of the Rental Period) in the same condition it was received, less Ordinary Wear and Tear and free of any hazardous materials and contaminants. All Equipment is inspected upon return. Customer will return the Equipment at the end of the Rental Period but will continue to be responsible for rental and other charges after the Rental Period if the Equipment is not returned in the condition required herein. If HireAir delivered the Equipment to Customer, Customer shall notify HireAir by email that the Equipment is ready to be picked up from the Site. Upon notifying HireAir that the Equipment is ready to collect, Customer will be issued a Pick-up number, which Customer should keep as proof of the request; provided Customer remains liable for any loss, theft, damage to, or destruction of the Equipment until HireAir confirms that the Equipment is returned in the condition required herein. No pickups occur on Saturdays, Sundays or statutory holidays. If Customer picked up Equipment, Customer shall return Equipment to the same location during normal business hours. If the Equipment is not returned by the estimated end of the Rental Period specified earlier, Customer agrees to pay the applicable rental rate for the Equipment until the end of the Rental Period.
15. DAMAGE TO EQUIPMENT
Customer shall be liable to HireAir for all loss or damages to the Equipment, while it is in the possession of Customer, regardless of the cause or origin of such loss or damage. In the event of partial loss or damage to the Equipment, Customer shall immediately notify HireAir of such, and if its failure to notify HireAir results in additional or consequential damages to the Equipment, then Customer agrees to pay for all such damages. All repairs to damaged Equipment will be subject to and governed by section 13.
16. CUSTOMER LIABILITY
DURING THE RENTAL PERIOD, CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE POSSESSION, CONTROL OR USE OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, RENTAL CHARGES, THEFT, LOSSES, DAMAGES AND DESTRUCTION, INCLUDING CUSTOMER TRANSPORTATION, LOADING AND UNLOADING, WHETHER OR NOT CUSTOMER IS AT FAULT.
In the event of an Incident, Customer shall (a) immediately notify HireAir, the police, if necessary, and Customer’s insurance carriers; (b) secure and maintain the Equipment and the surrounding premises in the condition existing at the time of such Incident, until HireAir or its agents investigate; (c) immediately submit copies of all police or other third party reports to HireAir; and (d) as applicable, pay HireAir, in addition to other sums due herein, the rental rate for Equipment until the repairs are completed or Equipment replaced plus either (i) the FMV or (ii) the full charges of recovery and repairs of damaged Equipment. Accrued rental charges shall not be applied to these amounts. HireAir shall have the immediate right, but not obligation, to reclaim any Equipment involved in any Incident.
17. NO WARRANTIES
HIREAIR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS DURABILITY, CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THE EQUIPMENT ON AN “AS IS, WHERE IS” BASIS, WITH “ALL FAULTS” AND WITHOUT ANY RECOURSE WHATSOEVER AGAINST HIREAIR ENTITIES. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THE EQUIPMENT AND RELEASES HIREAIR ENTITIES FROM ALL LIABILITIES AND DAMAGES (INCLUDING LOST PROFITS, PERSONAL INJURY, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS INSTALLATION, OPERATION OR USE OR ANY DEFECT OR FAILURE THEREOF, A BREACH OF HIREAIR’S OBLIGATIONS HEREIN OR ERRORS OR INACCURACIES IN INFORMATION OBTAINED FROM CUSTOMER OR THIRD PARTIES, UPON WHICH HIREAIR RELIES; PROVIDED HOWEVER, IF CUSTOMER IS A CONSUMER UNDER APPLICABLE LAW, THEN NO CONSEQUENTIAL DAMAGES LIMITATION OF INJURIES TO PERSONS SHALL APPLY.
18. INSURANCE
Customer shall at Customer’s own expense and for all relevant periods maintain: (i) commercial general liability insurance to protect Customer and HireAir against damage to property or persons from the operation, handling and use of the Equipment during the rental period with minimum coverage of $2,000,000 per occurrence, $5,000,000 general aggregate, (ii) commercial auto insurance to protect Customer and HireAir against damage to property or persons from transportation related losses with minimum coverage of $1,000,000 per occurrence, $2,000,000 general aggregate, (iii) broad form property insurance covering all Equipment at the FMV as defined in these Terms and Conditions, (iv) if Customer is hauling the Equipment, all risk cargo insurance at the replacement value, (v) workers’ compensation insurance for its employees in amounts required by the laws of the location in which the applicable work is performed and (vi) such other insurance as may be requested by HireAir in advance of the shipment of the Equipment to Customer. Customer shall cause its insurer to issue an endorsement identifying that all insurance identified in this section 18 shall be primary to that of HireAir to the extent of Customer’s obligations herein and that Customer and its insurer agreed to waive their subrogation rights with respect thereto. Customer shall provide thirty (30) days advance written notice to HireAir of any change or termination of any such policy prior to change or cancellation, and Customer shall cause HireAir (and, if requested by HireAir, HireAir’s vendor) to be named as an additional insured or lost payee, as applicable, on each such policy, other than the workers’ compensation policy. Failure to provide the requisite insurance shall not be deemed as a waiver of this provision.
19. LEGAL EXPENSES
Customer shall pay all costs, charges and expenses (including reasonable attorney’s fees) incurred in repossession of the Equipment and in the collection of any sums that may be due and owing to HireAir by Customer, including, but not limited to, the defense of any action brought against HireAir for damages caused by the Equipment to any person while the Equipment is in the possession of Customer. The Equipment shall be deemed to be the possession of Customer for all purposes of the Rental Agreement from the time it begins loading for transit from HireAir’s location until the time that Customer has completed unloading the Equipment at HireAir’s location or such other points as HireAir shall, in writing direct, except as otherwise expressly provided herein.
20. ENVIRONMENTAL SERVICES CHARGE
To promote a clean and sustainable environment, HireAir takes various measures to comply with applicable environmental regulations, as well as with HireAir’s own policies. HireAir also incurs a wide range of environmental-related expenses (both direct and indirect). These expenses may include services such as waste disposal, construction and maintenance of cleaning facilities, acquisition of more fuel-efficient Equipment, as well as, labour costs, administration costs, etc. To help offset these and other costs, HireAir assesses an Environmental Services Charge, plus applicable taxes thereon in connection with certain rentals. The Environmental Services Charge is not a tax or governmentally mandated charge and is not designated for any particular use or placed in an escrow account but is a charge that HireAir collects as revenue and uses at its discretion.
21. SUBLETTING & ASSIGNMENT
Customer shall not re-rent any Equipment, nor shall Customer assign or transfer any interest in the Rental Agreement, in either case without the prior written consent of HireAir. If the Equipment is re-rent, then Customer shall require its customer, the end user, and any third party in contractual privity in between to be bound by the terms and conditions hereof and as set forth in the Rental Agreement.
22. CRIMINAL WARNING
The use of false identification to obtain Equipment or the failure to return Equipment by the end of the Rental Period may be considered theft, subject to criminal prosecution and civil liability where permitted, pursuant to applicable laws.
23. ACCOUNT SUSPENSION/TERMINATION/BLOCKING
HireAir reserves the right to suspend, terminate, and/or block Customer accounts for any reason, including, but not limited to, suspicious/malicious activity or the account being compromised in any way.
24. HIREAIR’S LENDERS AND LEASE SUBORDINATION
HireAir has, and may put in place from time to time, credit facilities with lenders to HireAir (collectively, “Lenders”), pursuant to which HireAir, has, and may, pledge its assets, including, without limitation, the Equipment, to the Lenders as collateral. Customer hereby acknowledges and agrees that its lease of the Equipment pursuant to the Rental Agreement is subordinate to any security interest granted in favor of any of the Lenders with respect to the Equipment by HireAir, either before or after the date of the Rental Agreement. If HireAir defaults under any of its agreements with Lenders, then any Lender may, at its option and upon prior notice, enter, during normal business hours, any Equipment Location and remove the Equipment therefrom. Except in the case of gross negligence or willful misconduct, no Lender shall be guilty of any trespass or wrong or liable for any damages because of such removal of Equipment. Customer waives any right to claim damages resulting from any of the above remedies exercised by any Lender. Customer further waives any right to additional notice and opportunity to cure of any event of default by HireAir with respect to any Lender.
25. COMPLIANCE WITH EXPORT AND IMPORT LAWS
Removal of the Equipment from Canada is prohibited under this Contract. If Customer desires or causes the transport and/or operation of the Equipment outside of Canada, Customer must (a) obtain HireAir’s consent prior to taking such action, including approval of established customs broker, and (b) execute an amendment to this Contract, which amendment is incorporated herein. If Customer exports or re-exports without complying with the above sentence, Customer agrees that (i) the Equipment is subject to and must comply with all applicable export laws, including but not limited to the Export and Import Permits Act (Canada) and the Special Economic Measures Act (Canada) and (ii) Customer, as the exporter/importer of record, is responsible for: (A) determining whether and obtaining if necessary, export or re-export licenses or other authorizations as required prior to exporting or re-exporting the Equipment, (B) obtaining any required documentation necessary for return of the Equipment, and (C) ensuring no unauthorized transfers or diversions of the Equipment occur.
26. GOVERNING LAW
The Parties expressly and irrevocably agree: (a) this Contract, including any related tort claims, shall be governed by the laws of British Columbia, without regard to any conflicts of law principles and (b) if any Section of this Contract is prohibited by any law, such Section shall be ineffective to the extent of such prohibition without invalidating the remaining Sections. CUSTOMER WAIVES ANY STATUTORY PROVISIONS WHICH CONFLICT WITH THE TERMS OF THIS CONTRACT, INCLUDING BUT NOT LIMITED TO The Limitation of Civil Rights Act (Saskatchewan) if Customer is a corporation, the Civil Enforcement Act (Alberta), or any other seize or sue or similar provisions of any other like legislation in any other jurisdiction (as such statutes may be amended or any successor legislation). Customer further agrees that such statutes and any other similar legislation in any other jurisdiction shall have no application to this agreement or any renewal of extension thereto and Customer hereby waives all benefits and remedies provided by such statutes.
27. FORCE MAJEURE
HireAir shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts beyond HireAir’s control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, regulations, shutdowns, or actions; (e) embargoes or blockades in effect on or after the date of this Contract; (f) national or regional emergency; (g) strikes, labour stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the control of HireAir.
28. MISCELLANEOUS
This Contract, together with any Customer executed commercial credit application, if any, constitutes the entire agreement of the Parties regarding the Equipment and may not be modified except by written amendment signed by the Parties. Any reference in Customer’s purchase order or other Customer document to other terms that shall control this transaction shall be void. This Contract benefits solely the Parties and their respective permitted successors and assigns nothing in this Contract, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract. Customer’s obligations hereunder shall survive the termination of this Contract. If any term is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or invalidate or render unenforceable such term. This Contract and all of Customer’s rights in and to the Equipment are subordinate to all rights, title and interest of all persons (including HireAir’s lenders) who have rights in the Equipment. To the extent that any terms in this Contract conflict, the Parties agree that the more specific terms control. A copy of this Contract shall be valid as the original. Any failure by HireAir to insist upon strict performance of any Section of this Contract shall not be construed as a waiver of the right to demand strict performance in the future. Customer and the person signing this Contract agree, represent and warrant that: (a) the person executing is 18 or the legal age of majority in the providence, whichever is greater, and they both have full authority to execute, deliver and perform this Contract; and (b) this Contract constitutes a legal, valid and binding obligation of Customer, enforceable in accordance with its terms. If the Parties have a fully executed, active agreement, intended to govern over conflicting terms and conditions, such agreement shall take precedence over the terms herein.