Equipment Rental Agreement – Terms and Conditions
ARTICLE 1 – INTRODUCTION
1.1 Parties. “Customer”, “you”, “your”, and “yourself” refers to the customer identified in the applicable Order Form who rents the Equipment from Apex pursuant to the terms of this Agreement, and “Apex”, “we”, “our” and “us” refers to APEXRENTAL INC., a corporation incorporated pursuant to the laws of the Province of Ontario (together, the “parties”).
1.2 Rental Agreement. The terms and conditions set out herein (“Terms”), together with the order form you have submitted via Apex’s website (the “Order Form”) and any other documents and agreements you may receive from Apex related to your rental, constitute the “Agreement” between you and Apex. The parties hereto agree that these Terms shall govern the rental of all equipment and appurtenances, together with any keys, tools and accessories (collectively, “Equipment”) by you from Apex. Your rental of the Equipment is subject to, and conditional upon, your acceptance of these Terms.
1.3 Title to Equipment. Apex owns and shall retain all rights, title to and ownership of the Equipment. You agree that no ownership or title to the Equipment is transferred to you under this Agreement, and you covenant and agree that you will not do, nor permit anything to be done, which would be inconsistent with our ownership of and title in the Equipment.
ARTICLE 2 – RENTAL, PAYMENTS AND RETURN
2.1 Definitions. In this Agreement, (a) “Rental Fees” means all sums of money payable by you pursuant to this Agreement for rental of the Equipment including, without limitation, transportation fees (if applicable), plus applicable taxes; (b) “Rental Rates” are rates determined by Apex and subject to change from time to time; (c) “Rental Period” means, with respect to each piece of Equipment, the period beginning on and including the day of actual delivery of the Equipment to you (“Delivery”) and ending on and including the day the Equipment is collected by Apex from you; and (d) “Fees” means all Rental Fees, Damage Protection fees (if applicable), costs, charges, and other amounts due in connection with your rental of the Equipment, together with applicable taxes and interest due thereon pursuant to this Agreement.
2.2 Reserving Equipment. Equipment is available to be book on a first-come, first-served basis. To reserve the Equipment, you agree to pay the total amount specified in your Order Form at the time of booking, including all Rental Fees and Damage Protection fees (if applicable). Apex reserves the right to deny rentals based upon our inability to verify your identity or payment methods. You acknowledge that the use of false identification to obtain the Equipment may be considered a theft subject to criminal prosecution pursuant to applicable law.
2.3 Payment. Rental Fees are billed in accordance with the applicable Rental Rates, based on daily (24 hour) or hourly periods. Damage Protection fees are billed in accordance with the rate set out in Section 2.10 hereof. You agree to pay to Apex all Fees as and when due pursuant to this Agreement and all other amounts due hereunder upon demand, without any offsets, deductions or claims whatsoever. Overdue Fees will bear interest at 1.5% per month calculated monthly for a nominal annual interest rate of 18%. Apex may set off amounts we owe to you against any amounts you owe to us. Accounts overdue past 90 days will be sent to collections.
2.4 Delivery and Inspection. The Equipment will be delivered by Apex to the address specified in the Order Form (the “Authorized Location”) on the date and during the time period specified in your Order Form (the “Delivery Window”). You (or another designated adult who has been identified to Apex by the Customer in writing prior to the start of the Delivery Window) (the “Recipient”) must be physically present at the Authorized Location for the duration of the Delivery Window to sign for the Equipment and confirm receipt and acceptance of same. The Recipient shall provide a copy of valid government photo ID to Apex’s agents upon request at the time of Delivery. You may inspect the Equipment upon Delivery. If you do not inspect the Equipment at the time of Delivery, then you are deemed to have accepted that the Equipment is in good and clean condition and running order.
2.5 Cancellation. (a) By Customer. You may terminate this Agreement and cancel your booking for the Equipment by delivering written notice to Apex. If you cancel your booking within 48 hours of the beginning of your Delivery Window, all amounts paid by you hereunder will be retained by Apex, other than any payment you have made for Damage Protection, which amount shall be refunded. (b) By Apex. Apex reserves the right to terminate this Agreement immediately on written notice to you if: (i) any Fees have not been paid in accordance with this Agreement, in which case your rental will be cancelled and all amounts that have been paid by you hereunder shall be retained by Apex; or (ii) any unforeseen circumstance has occurred that renders the Equipment unfit for use, in Apex’s discretion, prior to the scheduled Rental Period, in which case your rental will be cancelled and all amounts paid by you to Apex will be fully refunded.
2.6 Return of Equipment. You agree to return the Equipment to Apex in the same condition you received it, ordinary wear and tear excepted, at the end of the Rental Period. IF THE EQUIPMENT IS NOT READY OR AVAILABLE TO BE PICKED UP BY APEX AT THE END OF THE RENTAL PERIOD FOR ANY REASON WHATSOEVER, WE RESERVE THE RIGHT TO CHARGE YOU ADDITIONAL FEES EQUAL TO THE DAILY RENTAL FEE FOR EACH DAY THE EQUIPMENT IS NOT RETURNED TO APEX. If you wish to extend your Rental Period, you must give notice to Apex in writing requesting such extension before the end of the Rental Period. We reserve the right to grant or decline requests for an extension in our sole discretion, for any reason or no reason.
2.7 Charges to Credit Card. You expressly agree and hereby authorize Apex to charge to the credit card you used to rent the Equipment (the “Customer Card”) all amounts set out in the Order Form, and any other Fees and other charges subsequently incurred by you under or related to this Agreement. You agree to the reservation of credit, by your credit card issuer, up to the total estimated charges due under this Agreement.
2.8 Early Termination. If any of the following should occur, Apex may terminate this Agreement, re-take possession of the Equipment without becoming liable for trespass, and be entitled to recover all Fees and Losses from you, without prejudice to any other rights or remedies available to us hereunder or at law: (a) you fail to make timely payment of any Fees; (b) you become bankrupt, insolvent or make an assignment for the benefit of your creditors, or have a receiver or other person with similar powers appointed; or (c) any actual or reasonably anticipated breach of this Agreement by the Customer. All outstanding obligations shall survive termination of this Agreement.
2.9 Repair Cost. Each piece of Equipment will be inspected by Apex at the time of Delivery and upon pick-up at the end of the Rental Period. Except to the extent covered by Damage Protection purchased in connection with the applicable rental pursuant to Section 2.10 hereof, you agree that an estimated “Repair Cost” may be charged by Apex to the Customer for any Equipment that is returned to Apex with damage due to abuse, misuse, neglect, intentional acts, and/or failure to follow the proper use and care instructions for the Equipment. The Repair Cost shall not exceed the replacement cost of the applicable piece of Equipment without deduction for depreciation. Repair Costs shall become due and payable immediately by Customer upon demand and are collectible by Apex as Fees without proof of damages. You covenant and agree to pay the Repair Cost (if any) and hereby authorize Apex to charge the Repair Cost to the Customer Card (as applicable).
2.10 Damage Protection Plan. “Damage Protection” is an optional service offered by Apex to cover repair charges if the Equipment is damaged in the course of normal use during the term of your rental. Apex charges a fee for Damage Protection equal to ten percent (10%) of the total Rental Fees payable in respect of the Equipment rented. This fee will appear as a separate line item on the Order Form. You must accept or decline the Damage Protection service at the time of booking. Except as otherwise expressly provided herein, the Damage Protection fees are non-refundable.
DAMAGE PROTECTION IS NOT INSURANCE. You acknowledge and agree that Damage Protection only covers the cost of repairs to the Equipment which becomes damaged through normal and permitted use of the Equipment in accordance with this Agreement.
In no event shall Damage Protection apply in respect of any loss of or damage to the Equipment during transport, or any loss incurred by or any damage resulting from theft, abuse, misuse, neglect, intentional acts, or any failure to follow any instructions provided for proper use and care of the rented Equipment, including without limitation, the provisions set out in Article 3 hereof (collectively, “Unprotected Losses”).
The determination as to whether the applicable damage to the Equipment constitutes an Unprotected Loss shall be made by Apex in its discretion, acting reasonably. You expressly acknowledge and agree that you are fully responsible and liable for any and all Repair Costs incurred by Apex in connection with any Unprotected Losses.
ARTICLE 3 – USE OF EQUIPMENT
3.1 Responsibility for Equipment. YOU AGREE TO BE FULLY RESPONSIBLE AND LIABLE FOR THE EQUIPMENT AT ALL TIMES DURING THE RENTAL PERIOD. In addition to timely payment of all Fees, your obligations under this Agreement include, but are not limited to, the following:
(a) Operation and Permitted Use; Maintenance. You shall ensure that Equipment is not subjected to careless or needlessly rough usage and is operated only by adults, in accordance with this Agreement and all applicable laws. You agree that the Equipment will be used solely for personal renovation/DIY project(s) at the Authorized Location and for no other purpose without the prior written consent of Apex. You shall not transport or otherwise remove the Equipment from the Authorized Location without the prior written consent of Apex, which consent may be withheld in our sole discretion. You are solely responsible for the cost of any disposable batteries, fuel, and/or lubricants required to operate the Equipment during the Rental Period.
(b) Safety. You shall not remove, alter, disfigure or cover up any identification, insignia or safety/operating instructions displayed upon any Equipment. You shall (and shall cause any other person handling the Equipment to) use appropriate personal safety equipment (including, without limitation, gloves, goggles, face shields, steel-toed boots, and/or other protective clothing, as applicable) at all times while operating the Equipment. You agree that you are responsible for providing your own personal safety equipment.
(c) Non-Functioning Equipment/Repairs. You will immediately discontinue use of any Equipment that becomes unsafe and/or in a state of disrepair. If any Equipment ceases to properly function or otherwise requires repair or replacement of broken parts, you will notify Apex immediately and Apex will make commercially reasonable efforts to attend at the Authorized Location to inspect the Equipment during regular business hours. Following such inspection and provided you are not in breach of your obligations under this Agreement, Apex may, in its discretion, restore the Equipment to operating condition within a reasonable time, provide you with a similar piece of equipment (subject to availability), or issue a partial refund for the Rental Fees paid in respect of the non-functioning Equipment for the remainder of the Rental Period. You shall not and shall not permit any third party to make any repairs to any Equipment. Except as expressly contemplated in this Section 3.1, Apex shall have no responsibility or liability to you for any downtime or inconvenience caused to you by failure of any Equipment.
(d) Loss of/Damage to Equipment. If any Equipment is lost, stolen, vandalized or otherwise damaged during the Rental Period, or Apex incurs expenses recovering or restoring the Equipment, you agree to pay or reimburse us for the actual and reasonable costs incurred by us to repair, clean, recover, replace, or otherwise restore the Equipment, which costs you acknowledge may exceed the amount of the Security Deposit.
(e) Subletting. You shall not transfer or assign any interest, rights or liabilities hereunder or rent or sublet the Equipment to any third party or allow a third party to use or possess the Equipment without the prior written consent of Apex, which consent may be withheld in our sole discretion. You will keep the Equipment free and clear of all liens, charges and encumbrances (collectively, “Liens”).
3.2 Training and Manuals. You acknowledge that Apex does not provide any training with respect to the operation of the Equipment and you hereby represent and warrant to Apex as follows: (i) you are knowledgeable with respect to the procedures applicable to the proper use and operation of the Equipment; (ii) you are capable of operating the Equipment safely and as required by applicable laws and standards; (iii) you have received and read all manuals and written operating instructions as supplied by Apex in respect of the Equipment, or you are already familiar with these instructions and consequently declined to read these manuals and instructions provided by Apex.
3.3 Assumption of Risk. You acknowledge and agree that while Apex may take steps to enhance and encourage safe operation of the Equipment, it is not possible for us to make your use of the Equipment completely safe. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH THE OPERATION OF THE EQUIPMENT AND YOU FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR LOSS RESULTING THEREFROM.
ARTICLE 4 – WARRANTIES, WAIVER, LIABILITY, INDEMINITY
4.1 Waiver. You acknowledge acceptance of the Equipment upon Delivery on a “as is” basis, without any recourse whatsoever against Apex. To the fullest extent permitted by applicable law, you hereby waive all rights to make or bring any claims, demands, actions, suits or proceedings which you have or may in the future have against Apex, its affiliates and their respective officers, directors, shareholders, employees, contractors, suppliers and agents (the “Releasees”) relating in any way to your Equipment rental and you hereby release and forever discharge the Releasees from any and all claims and liability relating in any way to your Equipment rental.
4.2 Warranty. Apex makes no warranties or conditions, either express or implied, as to any matter whatsoever, including, without limitation, the condition or quality of the Equipment, its merchantability or fitness for a particular purpose, or that it is suited for your intended use. You hereby waive all claims against the Releasees for any Losses which you may have against the Releasees, either directly or indirectly, by reason of the condition of the Equipment or its suitability for any particular purpose.
4.3 Limitation of Liability and Exclusion of Damages. Notwithstanding anything to the contrary herein, the maximum aggregate liability of Apex arising out of or in connection with this Agreement, if any, shall not exceed the aggregate Rental Fees paid by you to Apex pursuant to this Agreement. In no event will Apex be liable for special, consequential, punitive, incidental or indirect damages (including, without limitation, damages for loss of profits, revenue, business, goodwill or other economic loss) arising from any reason whatsoever, whether or not loss is based on contract, warranty, negligence, indemnity or otherwise. This Agreement does not impose any obligation or liability upon any person other than the parties hereto.
4.4 Indemnification. You hereby covenant and agree that you shall indemnify and hold the Releasees harmless from and against all damages, claims, liability, losses, lost profits, penalties, fines, Liens, costs and expenses, including, without limitation, all reasonable costs of collection, legal and court costs and other expenses incurred by the Releasees in the collection of any Fees or in connection with the enforcement of the Terms hereof (collectively, “Losses”) which the Releasees may suffer or may be required to pay by reason of your breach of this Agreement or for personal injuries, death, or property damages of any kind (including, without limitation, damages to the Equipment) suffered by any person by reason of the Equipment or the operation, handling, transportation, loading/unloading, or use thereof during the Rental Period or by or while in the possession of the Customer or any person for whom the Customer is responsible at law. Your indemnity obligations under this Agreement shall survive the expiry or termination of this Agreement.
ARTICLE 5 – GENERAL
5.1 Cooperation. You agree to cooperate and coordinate with us generally and to take any actions we reasonably request in connection with (i) this Agreement, (ii) your use and return of the Equipment, and (iii) any disputes, actions, proceedings, suits, and investigations related to this Agreement or your use of the Equipment, including without limitation, execution and delivery of any documents we reasonably request, giving testimony under oath, and taking any other actions we reasonably request related to this Agreement.
5.2 Force Majeure. In no event shall Apex be liable for any failure to fulfill its obligations under this Agreement if such failure is caused, directly or indirectly, by flood, communications failure, weather, fire, earthquake, or other natural calamity or act of God, interruption in electricity or internet connectivity, third-party server issues, acts of terrorism, riots, civil disorders or protests, acts of governmental agencies, quarantines, epidemics or pandemics, malicious acts of third parties, labor disputes, or any other similar cause beyond the reasonable control of Apex.
5.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement.
5.4 Interpretation. Section headings are included for convenience of reference only and shall not affect the construction or interpretation of this Agreement. This Agreement shall not be construed against Apex by reason of the drafting or preparation of this document by its legal counsel. Time shall be of the essence in this Agreement.
5.5 No Waiver/Rights and Remedies. Neither Apex nor the Customer shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. The rights and remedies of Apex under this Agreement are cumulative and in addition to and not in substitution of any rights or remedies available to Apex pursuant to applicable law.
5.6 Entire Agreement. These Terms, your Order Form(s) and any other documents and agreements you may receive from Apex related to your rental (the terms of which are hereby incorporated by reference and form part of this Agreement) contains the entire agreement between the parties and supersedes all prior agreements and understandings between the parties relating to the subject matter hereof. Except as otherwise agreed by the parties in writing, in the event of a conflict between these Terms and the terms set out in any Order Form or other document relating to the Equipment, whether sent or received prior or subsequent to this Agreement, these Terms shall govern. This Agreement may be amended or modified only by a written agreement signed by both Apex and the Customer.
5.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving effect to any conflict of laws rules). The parties hereto agree that the Courts of Ontario shall have jurisdiction to entertain any action or other legal proceedings based on any provisions of this Agreement. Each of the parties hereto does hereby attorn to the exclusive jurisdiction of the Courts of the Province of Ontario in Mississauga.
5.8 Notice. Any notice or communication in connection with this Agreement must be in writing and sent via e-mail. All notices and communications to Apex must be sent to firstname.lastname@example.org. All notices and communications to the Customer will be sent to the e-mail address you provided at the time of booking the Equipment.
5.9 Successors and Assigns. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, successors and assigns.
5.10 Counterparts and Electronic Acceptance. These Terms and this Agreement may be accepted in electronic form and executed and delivered electronically in counterparts, with each such counterpart deemed to be an original and all such counterparts constituting one instrument.
Prior to submitting any Order Form to Apex, the Customer is required to electronically accept these Terms. You hereby acknowledge that you have carefully reviewed and understand these Terms and your rights, obligations and responsibilities hereunder. You further acknowledge that Apex has presented you with the opportunity to review and agree to these Terms. By clicking “accept” and providing your digital or electronic signature, you agree to be bound by these Terms and this Agreement.
[Signature Page Follows]
The parties hereto have accepted and agree to be bound by these Terms and this Agreement as of the date set out below.
Customer Signature: ________________________________
Customer Name: ________________________________
Authorized Signing Officer