WESTBORO PHOTONICS INC. (“Rentor”) RENTAL AGREEMENT – TERMS AND CONDITIONS
1. AUTHORIZATION AND RECEIPT. The customer (herein the “Rentee”) named in the Purchaser Order hereby acknowledges receipt of these Terms and Conditions (the Purchase Order and these Terms and Conditions collectively the “agreement”) and hereby represent that the signatory or signatories for the Rentee has the capacity and/or authority to enter into this agreement and bind the Rentee to its terms. In the event of any conflict between these Terms and Conditions and the Purchase Order, the Purchase Order shall prevail over these Terms and Conditions.
2. EQUIPMENT RENTED. This is a rental of the equipment, accessories and/or services (collectively referred to as “equipment”) described in the Purchase Order, and not a sale, conditional or otherwise. Rentor guarantees all equipment to be operational when it leaves its premises and Rentor cannot be responsible for Rentee’s failure to operate the equipment property. The term of this agreement is for the period specified in the Purchase Order. If Rentee fails to return the equipment by the return date specified in the Purchase Order and at the location specified (if other than Rentor premises in Ottawa, Canada), Rentee is liable for the 150% of the daily rental cost of the equipment until it is returned and accepted in good order by the Rentor. Delays by third parties, including shippers, do not mitigate any additional rents or late charges due. Rentee agrees to pay rent according to the terms established in advance by Rentor. When used herein “daily rental cost” of the equipment shall mean the aggregate rental fee specified it the Purchase Order divided by the number of days in the rental.
3. PAYMENTS. All rental charges and security deposits shall be due and payable in full prior to the shipment or delivery of the equipment. In the event that credit is extended, or additional payments are charged over-due invoices bear interest at the rate of two (2%) per month calculated monthly with overdue interest at the same rate. The Rentee shall be charged a fee of US$250.00 for each check that is returned to the Rentor for lack of sufficient funds which fee is not a penalty and is a genuine pre-estimate of administrative expenses incurred by the Rentor.
4. TAXES AND FEES. The Rentee shall pay all taxes and government levies and fees associated with the rental of the equipment pursuant to this agreement.
5. SECURITY DEPOSIT. Rentor shall pay a security deposit of 10% of the estimated value of the equipment at the time that this Rental contract is signed. This deposit will be returned to the Rentee at the termination of this agreement, subject to the option of the Rentor to apply it against rental charges and fee, and repair of damages and loss. Any amounts refundable to the Rentee shall be paid within 10 days of this rental being terminated. The security deposit shall not bear interest.
6. USE OF EQUIPMENT. The equipment will be used in strict compliance with standard operating procedures prescribed for the equipment. When not in use, the equipment and shall be stored in its protective case if provided. Rentee shall keep the equipment in its sole custody and control. In the event that training is provided by Rentor under this agreement or any other agreement, Rentee agrees to operate the equipment in accordance with the standards and procedures set forth in such training.
7. ACCEPTANCE OF EQUIPMENT BY RENTEE. Rentee shall inspect each item of equipment delivered pursuant to this agreement. Rentee shall immediately notify the Rentor of any discrepancies between such item of equipment and the description of the equipment. If Rentee fails to provide such notice in writing within 5 day(s) after the delivery of the equipment, Rentee will be conclusively presumed to have accepted the equipment as specified.
8. TRANSPORT AND SHIPMENT: All shipping, insurance and customs duties or charges and taxes and brokerage and clearance fees shall be at the cost of the Rentee. In the event the equipment is transported or shipped, whether from Rentor to Rentee, or to any third party or location, or upon its return to Lessor, or at anytime between “delivery” and “return” of the equipment, the risk of loss during that transport and shipment shall be solely Lessee’s. Rentee, at Rentee’s option, shall be entitled to select its own shipper or transport service and shall notify Rentor of the selected shipper or transport service at the time the rental order is placed, and if required by Rentor, the Rentee shall use an established customs broker designated by Rentor. If Rentee declines to make such election, and requests transport by a shipper or transport service selected by Rentor, then Rentee shall still remain solely responsible for risk of loss during that transport or shipment and shall continue to maintain insurance on the Property as provided herein.. Rentee shall not reship the equipment to any jurisdiction not specified in the Purchase Order without the prior written consent of the Rentor. Rentee acknowledges that rental charges accrue for time in transit, including the time equipment may be in the hands of the customs broker.
9. TRANSPORT INSURANCE. Rentee hereby agrees to insure the equipment with an insurance carrier for the full value thereof, and shall name Rentor as an additional insured and loss payee and shall provide Rentor with a Certificate of Insurance prior to and concurrent with rental of the equipment. The insurance shall cover loss or damage sustained in the Continental U.S. or abroad, in transit or otherwise. Rentee shall also be liable for any loss or damage sustained by Rentor including but not limited to the daily rental value of the equipment from the return date until return, repair, and/or replacement regardless of the Rentee’s insurance coverage, deductibles or limits.
10. FAILURE TO DELIVER. Rentee releases and discharges the Rentor from any and all liability or damages (including, without limitation, damages for loss of profit, loss of business opportunity and other economic loss) which might be caused by the Rentor’s failure or inability to deliver any equipment by any specified date or time.
11.ALTERATIONS/LABELS. Rentee shall not make any alterations, additions or improvements to the equipment without prior written consent of the Rentor which may be unreasonably withheld. Rentee shall not remove or deface identification labels or barcodes on any and all equipment.
12. COMPLIANCE WITH LAWS. Rentee shall comply with the laws, ordinances and regulations in any way relating to the use, operation and maintenance of the equipment.
13. :LIABILITY INSURANCE. Rentee agrees to maintain and carry, at its sole cost, throughout the entire rental period, (i) comprehensive general liability insurance against claims for bodily injury (including death), personal injury and property damage, and (ii) legal liability, property damage and casualty insurance for an amount or amounts not less than the full replacement cost of the equipment, including all risks of loss or damage covered by the standard extended coverage endorsement, such policies to be in forms and amounts sufficient to cover any loss, damage or liability arising from the handling, transportation, maintenance, operation or use of the equipment.
14.RISK OF LOSS. In addition to the insurance, Rentee shall be responsible for any loss or damage to the equipment from any cause whatsoever occurring after delivery to Rentee and Rentee’s acceptance of the equipment and before possession of the equipment is returned to Rentor. Rentee shall keep the equipment in its custody and in good condition and repair, ordinary wear and tear accepted. Rentee shall be responsible and shall pay Rentor the repair or replacement cost for the repair or replacement of any equipment damaged, lost, stolen, missing, broken, or otherwise.
15. SURRENDER. Upon the expiration or earlier termination of this agreement, Rentee at its own cost shall return the equipment and all accessories to Rentor at its premises in Ottawa, Ontario in same condition as at the delivery to Rentee, ordinary wear and tear accepted. Rentee shall be responsible for all carriage fees, insurance, and customs clearance. Rentor’s acceptance of the return of equipment is not a waiver by it of any claims it may have against Rentee nor a waiver of claims for latent or patent damage to the equipment. In the case of the loss or destruction of any equipment, or inability or failure to return same to Rentor for any reason whatsoever, Renteewill pay Rentor the then full replacement value together with the full rental rate as specified until such Equipment is replaced.
16. INDEMNITY. Rentor acknowledges and assumes all risks inherent in, arising from or in any way connected with the operation and use of the equipment. While in possession of the equipment, Rentee will take all necessary precautions to protect persons and property from any injury or damage. Rentor (which term, when used in this paragraph, shall include Rentor, its agents, officers, employees and other persons for whom Rentor is legally responsible, shall not be responsible for any injury, loss or damage of whatsoever nature or kind, howsoever caused, including without restriction any loss, damage or injury caused by, resulting from or in any way connected with the operation or use of the equipment, any defect, malfunction or disrepair of equipment or any misrepresentation, inaccuracy or deficiency of or contained in information or instructions given or provided by Rentor (in whatever form or manner or contained in any manual or other printed material furnished by Rentor. Rentee hereby releases Rentor and agrees to defend, indemnify and hold Rentor harmless from and against any and all liability, costs, claims and damages of any kind (including legal costs) sustained by the Rentee or by any other person or entity, caused by, resulting from, or in any way connected with the equipment or this agreement, and including without limitation, any damage to, or lose or destruction of property belonging to the Rentee or any other person or entity, any bodily injury (including death), personal injury or loss, damages for personal discomfort, illness or distress, or any consequential injury or damage including any loss of profits, business interruption or other special or consequential damages), howsoever caused.
17. RIGHT OF RENTOR TO INSPECT. Rentor shall have the right to inspect the equipment at all reasonable times at the premises of the Rentee.
18. TITLE. This agreement is not a contract of sale, and title to the equipment shall at all times remain with the Rentor. This agreement and/or the equipment may not be assigned, transferred, pledged, hypothecated, sublet or lent by Rentee to anyone without prior written consent of Rentor which consent may be unreasonably withheld. Rentor may assign this Agreement and/or mortgage and/or sell the equipment subject to the terms hereof.
19. DEFAULT BY RENTEE. In the event Rentee shall fail to make any of the rental payments when due, or fails to perform any other covenant or condition hereof to be performed by Rentee or any of the events described in the following paragraph occur, Rentor may, in addition to all other remedies provided by law, exercise any one or more of the following, with or without demand, notice or legal process.
a) recover from Rentee all sums then due;
b) repossess the equipment (by entering upon Rentee’s premises, if necessary) without liability for trespass,
or responsibility with respect to the equipment or to any article attached to same; and recover from Rentee
all damages sustained by Rentor as a result thereof.
c) recover from Rentee any and all damages which Rentor shall have sustained by reason of non-performance
by the Rentee of the terms and conditions of this agreement.
d) retain, free from any claim by Rentee, all payments or other property theretofore received under this
agreement.
e) recover from Rentee all expenses incurred by Rentor protection of its rights under this agreement or
exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereof, including, without limitation, attorney’s and legal fees, court costs, and costs of location, repossessing, repairing, reconditioning and storing the equipment.
20. BANKRUPTCY. Neither this agreement nor the equipment is assignable or transferable by operation of law. If any proceeding under the Bankruptcy and Insolvency Act, (R.S.C. 1985) as amended or any act or statute in respect of bankruptcy or insolvency or for the protection of creditors in any jurisdiction is commenced by or against the Rentee, or if the Rentee is adjudged insolvent, or makes any assignment for the benefit of his creditors or if a writ of attachment or execution is levied on any item or items of the equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Rentee is a party with authority to take possession or control of any item or items of the equipment. Rentor shall have and may exercise any one or more of the remedies set forth in paragraph 19 hereof without notice to the Rentee. This agreement shall, at the option of the Rentor, without notice, immediately terminate and shall not be treated as an asset of Rentee after the exercise of said option and Rentor shall recover from Rentee any and all costs or damages associated with recovery of this equipment.
21. GOVERNING LAW. With respect to any claim arising out of, or related to the transactions contemplated by this agreement each party irrevocably submits to the exclusive jurisdiction of the courts of the Province of Ontario, Canada and accepts, generally and unconditionally, the exclusive jurisdiction of any such court and any related appellate court and irrevocably agrees to be bound by any judgment rendered thereby in connection with this agreement subject, in each case, to all rights to appeal such decisions to the extent available to the parties: Each party irrevocably waives any objection which it may have at any time to the laying of venue of any suit, action or proceeding arising out of, or relating to the transactions contemplated by, this agreement in any such court, any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum, the right to object, with respect to such suit, action or proceeding brought in any such court, or that such court does not have jurisdiction over such party, but nothing herein shall restrict the Rentor from commencing or prosecuting proceedings in any court to obtain possession of the equipment.
22. SEVERABILITY. The provisions of this agreement shall be severable so that the invalidity, unenforceability or waiver of any of the provisions shall not affect the remaining provisions.
23. WAIVER. The failure of either party to enforce any provision of this agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement.
24. PARTIES BOUND. This agreement shall be binding and inure to benefit of the heirs, executors, administrators and assignees of the parties hereto.
25. NOTICE. All notices required or permitted under this agreement shall be deemed delivered when delivered in person or by mail, postage prepaid, addressed to the appropriate party at the address shown for that party in the Purchase Order or in any other manner permitted by law.
26. COUNTERPARTS. This agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. The parties agree that the reproduction of signatures by facsimile or email transmission or other scanned or electronic method will be treated as though such reproductions were executed originals and each party undertakes to provide the other with a copy of the agreement bearing original signatures immediately following a request by the other party.
27. ENTIRE AGREEMENT. This agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, among the parties with respect to the subject matter hereof. There are no conditions, covenants, representations, warranties, or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein.
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