RENTAL AND SERVICE TERMS
Please read carefully. By accepting delivery of the Equipment or Services (defined below) or making payment(s) to PowerSafe for the same, Customer agrees to be bound by the Rental and Service Terms and RPP terms (if applicable), even if the Rental and Service Agreement has not been fully executed.
1. DEFINITIONS. “Agreement” means the Reservation Details, together with any associated Rental and Service Agreement including these Rental and Service Terms and, to the extent applicable, the Rental Protection Plan that PowerSafe makes available to direct commercial customers both of which are incorporated by reference therein. “Customer” means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer. “Equipment” means any one or more of the items identified as rental items in the Reservation Details and any accessories, attachments or other similar items delivered to Customer including, but not limited to, air hoses, electric cords, blades, welding cables, liquid fuel tanks and nozzles. “Rental and Service Agreement” means the agreement made between Customer and PowerSafe for PowerSafe to rent Equipment and/or provide Services, whether that agreement is made in person at the Store Location, online or at the time of Equipment delivery, and which incorporates by reference these Rental and Service Terms and, to the extent applicable, the Rental Protection Plan that PowerSafe makes available to direct commercial customers. “Rental Period” means the period of time between the “Rental Out” and “Scheduled In,” set forth in the Reservation Details, except that the Rental Period may terminate earlier as provided in Sections 11 and 22 hereof or if Customer returns the Equipment earlier. “Reservation Details” means the Equipment, Rental Period, delivery information, payment information and other information set forth on the Confirmation/Order Summary Screen or the Rental and Service Agreement, as the case may be. “Service” or “Services” means the services provided by PowerSafe in connection with the rental of Equipment, including Trench Services, Scaffolding Services, Fluid Solutions Services, Power and HVAC Services and Tool Services (each as defined in Section 25 below). “Specialty Media” means specialty filtration materials purchased in connection with the rental of Equipment used for Fluid Solutions (as defined below), such as sand, gravel, carbon or other materials used to remove certain contaminants or other materials. “Store Location” means the PowerSafe address set forth in the Rental and Service Agreement. “Tanks” means the Equipment, identified as rental items as part of the Fluid Solutions Services, in which Customer stores materials. “PowerSafe” means PowerSafe Energy Services Inc.
2. AUTHORITY TO SIGN. Any individual signing the Agreement represents and warrants that he or she is of legal age and has the authority and power to sign this Agreement on behalf of Customer.
3. INDEMNITY/ HOLD HARMLESS. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD POWERSAFE, AND ANY 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, POSSESSION OR RENTAL OF THE EQUIPMENT, OR (B) ERRORS, OMISSIONS OR INACCURACIES IN THE DOCUMENTS OR OTHER INFORMATION PROVIDED BY CUSTOMER OR OBTAINED FROM OTHERS, UPON WHICH PowerSafe RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST PowerSafe BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY POWERSAFE FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF POWERSAFE. 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. INSPECTION OF EQUIPMENT. Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair and suitable for Customer’s needs. Customer further acknowledges that Customer has inspected the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or public road, prior to taking possession thereof and such propulsion tank contained no dyed fuel. Customer has inspected or will inspect all hitches, bolts, safety chains, hauling tongues and other devices and materials used to connect the Equipment to Customer’s towing vehicle, if any. Customer acknowledges PowerSafe is not responsible for any damage to Customer’s towing vehicle caused by detachable hitches or mirrors. With respect to the rental of Tanks, Customer shall take independent action to ensure that any materials Customer stores in the Tanks are chemically compatible with the Equipment. Customer shall provide PowerSafe with the safety data sheet (“SDS”) or verified laboratory tests that identify the material Customer stores in the Tanks.
5. LIMITATION OF LIABILITY. In no event shall PowerSafe be liable or responsible to Customer or any other person for: (i) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its operation or its use; (ii) PowerSafe’s failure to deliver the Equipment as required hereunder or PowerSafe’s failure to repair or replace non-working Equipment; (iii) or any incidental, consequential, punitive or special damages, even if so advised of the possibility of such damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to PowerSafe and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.
6. CUSTOMER RESPONSIBILITIES. Customer shall provide PowerSafe with the information and the documentation PowerSafe requests to assess, plan and perform the Services and/or provide the Equipment. All Equipment is provided and Services are performed based on information provided by Customer or others and PowerSafe is relying on the accuracy and completeness of such information in providing the Equipment and performing such Services. Customer recognizes that it is impossible for PowerSafe to assure the accuracy, completeness and sufficiency of information provided by others, either because it is impossible to verify, or because of errors or omissions that may have occurred in assembling such information. Customer is responsible for providing a secure and safe work environment for all parties, including PowerSafe and its employees, and for ensuring that the Services are carried out in compliance with applicable laws.
7. USE OF EQUIPMENT. Customer is familiar with the proper operation and use of each item of Equipment. Customer has selected the Equipment based on its requirements and will not use or allow
anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, if required under any applicable law; or who is not qualified to operate it. Customer shall not insert, or permit to be inserted, any dyed fuel into the propulsion tank of vehicles registered and licensed, or required to be registered and licensed, for use on any highway or other public road. In addition, Customer shall only use ultra-low-sulfur diesel fuel in Equipment with tier 5 engines. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD POWERSAFE HARMLESS FROM ALL FINES, PENALTIES, DAMAGE TO EQUIPMENT AND ANY OTHER COSTS INCURRED BY POWERSAFE DUE TO DYED FUEL BEING INTRODUCED INTO THE PROPULSION TANK OF SUCH VEHICLES. Customer agrees to: (i) check filters, oil, fluid levels and tire air pressure; (ii) clean and visually inspect the Equipment daily; and (iii) immediately cease using the Equipment and immediately notify if Equipment needs repair or maintenance. Customer acknowledges that PowerSafe has no responsibility to inspect the Equipment while it is in Customer’s possession. PowerSafe shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason. Unless Customer otherwise notifies PowerSafe in writing at the time of signing the Agreement, Customer represents and warrants that Customer is entering into the Agreement only for business or commercial purposes and not for personal, family, household, or farming purposes, or in connection with the operation of a farm, ranch or feedlot, and the Equipment will not be used for any such purposes.
8.REGULATED MATERIALS. If Customer intends to use the Equipment for the storage and handling of Regulated Materials (as defined herein), the following terms set forth in this Section 8 shall apply.
a. Definitions. “Regulated Materials” means any substance or material which under any Environmental Laws is defined to be “hazardous”, “toxic”, “deleterious”, “caustic”, “dangerous”, a “contaminant”, a “pollutant”, a “dangerous good”, a “waste”, a “source of contamination” or a “source of a “pollutant” or any other substance the storage, manufacture, disposal, treatment, generation, use, transport, remediation or release into the environment of which is prohibited, controlled, regulated or licensed under Environmental Laws or the existence of which in the soils or groundwater of property exceeds applicable industrial/commercial standards established by governmental authorities from time to time. “Environmental Laws” means all federal, provincial, municipal or local statutes, regulations, by-laws, environmental permits, orders or rules, and any policies or guidelines of any governmental or regulatory body or agency, and any requirements or obligations arising under the common law, relating to the environment and, the transportation of dangerous goods and occupational health and safety.
b. Tank Testing. Customer acknowledges that the Equipment may have contained Regulated Materials in the past. Customer may, at Customer’s expense, test the Equipment for the presence of residual amounts of Regulated Materials prior to taking possession of the Equipment. In the event that residual amounts of Regulated Materials are detected in the Equipment by preliminary testing, Customer may notify PowerSafe and request new Equipment or Customer may terminate the rental. If Customer elects to continue use of the Equipment or elects not to test the Equipment, Customer will be bound by the terms set forth herein and waives any right to object to the presence of or to seek any legal recourse in relation to Regulated Material in the Equipment resulting from any prior use, and agrees that the Equipment is suitable for Customer’s intended use. Upon expiration or termination of the Rental Period, but before the Equipment is returned to PowerSafe, Customer shall, at Customer’s sole expense, remove all Regulated Materials, whether pre-existing or resulting from the Customer’s use, from the Equipment and clean the Equipment to comply with all standards prescribed by applicable municipal,provincial, territorial and federal laws, ordinances and regulations including but not limited to Environmental Laws.
c. Cleaning. Prior to return, Customer shall clean the Equipment in accordance with the following requirements: (i) cleaning must be performed by an independent contractor acceptable to PowerSafe; (ii) it must be documented to PowerSafe’s satisfaction; (iii) where required, Equipment must be triple-rinsed using a solvent capable of removing Regulated Materials, then purged to remove any vapors or cleaned by another method capable of achieving equivalent level of removal; (iv) for radioactive materials (meaning any materials identified by any municipal, provincial, territorial or federal government authority as being radioactive), cleaning must comply with cleaning procedures set forth in the Nuclear Safety and Control Act and the regulations thereunder and any other applicable municipal, provincial, territorial and federal laws, ordinances and regulations including but not limited to Environmental Laws and (v) the independent contractor must certify that the cleaning meets the above specifications.
d. Sampling. After cleaning, Customer will confirm the Equipment’s Empty Condition (as defined below) and that cleaning has been conducted, as applicable, by obtaining a professional written laboratory analysis of representative samples taken from various internal parts of the Equipment. Customer agrees the sampling must be: (i) performed by an independent contractor acceptable to PowerSafe; (ii) documented to PowerSafe’s satisfaction; (iii) taken from various internal parts of the Equipment including at a minimum, the floor, the underside of various cross-braces, and each wall (“Representative Samples”); and (iv) conducted in the presence of and pursuant to the direction of a designated employee of PowerSafe. Customer agrees to contact PowerSafe to schedule an appointment for an employee of PowerSafe to witness the sampling not less than ten (10) business days prior to the termination of the rental. For intermodal, roll-off, and vacuum container Equipment, in addition to the above requirements, Customer agrees that initially, 20% of the intermodal, roll-off, or vacuum container Equipment rented by Customer will be tested by the third-party laboratory. Based on satisfactory initial sampling results, and at PowerSafe’s sole discretion, that figure may be reduced to 10%, random sampling. If liners are not used, or if any intermodal, roll-off or vacuum container Equipment fails the testing procedures outlined in Section 8(b), then 100% sampling of all intermodals, roll-offs or vacuum container Equipment will be required.
e. Sample Analysis. Customer agree that the analysis of the sampling must: (i) be performed by a laboratory acceptable to PowerSafe that is certified to perform such analysis by the province or territory in which the Equipment is located; (ii) be documented to PowerSafe’s satisfaction, and must include a record of the chain of custody for the Representative Samples; and (iii) meet or exceed protocols established by applicable governmental authorities.
f. Return. Customer shall return the Equipment in an Empty Condition in accordance with the terms set forth herein. If the Equipment does not meet the standard, Customer will undertake additional cleaning of Equipment, in accordance with all applicable municipal, provincial, territorial and federal laws, ordinances and regulations including but not limited to Environmental Laws, to meet the standard, and will provide PowerSafe with written evidence of same. PowerSafe will not pick up the Equipment and Customer will continue to pay rental charges until the Equipment has been cleaned to the standards specified herein. In the event that Customer is unable to clean the Equipment in accordance with the terms set forth herein, Customer shall pay PowerSafe for the full current replacement value of the Equipment, plus any applicable taxes. Customer agrees that in such event it assumes full ownership of and responsibility for the Equipment and any residual contents and all related liability for the management, transportation and disposal of such Equipment in accordance with all applicable laws. Customer agrees that it shall be the generator of any hazardous, solid, or radioactive waste generated as a result of Customer’s failure to return the Equipment in an Empty Condition, and of any residual materials resulting from Customer’s attempt to clean the Equipment. Customer further agrees to indemnify, defend and hold PowerSafe harmless for any liability incurred by PowerSafe as a result of Customer’s breach of its obligations in this Section or as a result of PowerSafe being deemed a “generator” under applicable Environmental Laws. The foregoing indemnity obligation shall survive the termination or expiration of this Agreement.]
9.COMPLIANCE WITH APPLICABLE LAWS. Customer shall, at Customer’s sole expense, comply with all applicable municipal, provincial, territorial and federal laws, ordinances and regulations (including but not limited to those relating to occupational health and safety and to the environment), industry standards and building and zoning codes, and shall possess and maintain all professional licenses, and other licenses and permits, which may apply to the use of the Equipment (“Licenses and Permits”). Licenses and Permits include, without limitation, the discharge of treated water, and disposal of waste or spent Specialty Media or other materials, and security, traffic control and road crossings associated with the use of the Equipment. Customer shall ensure that the Equipment at all times remains movable personal property. Customer shall not permit or allow the Equipment to be incorporated, attached or joined to any real or immovable property such that it causes the Equipment to be deemed a fixture.
10. WARRANTY/ DISCLAIMEROFWARRANTIES. POWERSAFE WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD WORKING ORDER UPON DELIVERY AND THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, POWERSAFE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, SPECIALTY MEDIA OR SERVICES AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING THE PERFORMANCE OF ANY FILTRATION EQUIPMENT TO MEET ANY APPLICABLE REGULATORY STANDARD. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS OR CONTAMINANTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE AGREEMENT, POWERSAFE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION. IN THE EVENT OF A BREACH OF THE ABOVE EQUIPMENT WARRANTY, POWERSAFE SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR OR REPLACE THE EQUIPMENT. IN THE EVENT OF A BREACH OF THE ABOVE SERVICE WARRANTY, POWERSAFE SHALL, AT ITS SOLE COST AND EXPENSE, RE-PERFORM THE SERVICE.
11. MALFUNCTIONING EQUIPMENT. Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, Customer shall immediately cease using the Equipment and immediately notify PowerSafe. If such condition is the result of normal operation, PowerSafe will repair or replace the Equipment with reasonably similar Equipment in working order, if such replacement Equipment is available. PowerSafe has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect. Customer’s sole remedy for any failure or defect in Equipment shall be the termination of any rental charges accruing after the time of failure. Customer must return the Equipment to the Store Location within twenty-four (24) hours from the time of defect in order to terminate rental charges.
12. RETURNOFEQUIPMENT/ DAMAGED & LOST EQUIPMENT. At the expiration of the Rental Period, Customer will return the Equipment to the Store Location during PowerSafe’s regular business hours or if PowerSafe has agreed to pick up the Equipment, PowerSafe shall endeavor to pick up the Equipment within a commercially reasonable period of time after Customer notifies PowerSafe that the Equipment is called “off-rent”. Customer is obligated to restore the Equipment to the same condition as when delivered, reasonable wear and tear (as defined below) excepted. Tanks shall be empty and cleaned of all contents as required by any applicable municipal, provincial, territorial and federal laws, ordinances and regulations including but not limited to Environmental Laws, and following any applicable codes, procedures and practices. Customer shall be responsible for all damages to or loss of the Equipment from the time the Equipment leaves the Store Location until the Equipment is either returned to the Store Location, including any damage during transit to or from Customer, or picked up by PowerSafe. In the case of the loss or destruction of any Equipment, or inability or failure to return same to PowerSafe for any reason whatsoever, Customer will pay PowerSafe the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay PowerSafe the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. PowerSafe shall be under no obligation to commence repair work until Customer has paid to PowerSafe the estimated cost therefor. Customer agrees that PowerSafe reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this Section due to damaged or lost Equipment.
13.REASONABLEWEARANDTEAR.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a one shift basis (as defined in Section 15 below). The following shall not be considered reasonable wear and tear: (i) damage resulting from lack of lubrication, insertion of improper fuel or maintenance of necessary oil, water and air pressure levels, cavitation or freezing; (ii) except where PowerSafe 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; (iii) damage resulting from any collision, overturning or improper operation, including overloading or exceeding the rated capacity of the Equipment; (iv) damage in the nature of dents, bending, tearing, staining, corrosion or misalignment to or of the Equipment or any part thereof; (v) wear resulting from use in excess of shifts for which rented; (vi) and any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry.
14.LATERETURN.Customer agrees that if the Equipment is not returned by the end of the Rental Period, or if the Tanks are not in Empty Condition when PowerSafe comes to the Customer job site to pick up the Tanks, PowerSafe, in its sole discretion, may require Customer to do any of the following: (i) continue to pay the rental rate(s) applicable to the Equipment as specified in the Agreement; (ii) for periods less than 24 hours, pay the full daily rental rate applicable to the Equipment; (iii) pay any increased rental rate(s) in effect at the time of, or after, the expiration of the Rental Period; or (iv) assess a pickup charge if the Tanks are not in Empty Condition. Customer agrees that PowerSafe reserves the right to charge the Credit Card, and/or Customer’s account for any amount owed by Customer pursuant to this Section due to late return of Equipment.
15.RENTALPERIOD/ CALCULATION OF CHARGES. Rental charges commence when the Equipment leaves the Store Location and end when the Equipment is either returned to the Store Location during
PowerSafe’s regular business hours or picked up by PowerSafe after Customer notifies PowerSafe that the Equipment is “off rent” and obtains an “off rent” confirmation number from PowerSafe. Pick-up and delivery by PowerSafe is subject to a “Delivery and Pick-up Service Charge”, the amount(s) of which are disclosed on the Rental and Service Agreement. Notwithstanding anything to the contrary in the preceding sentence, for the rental of Tanks, the rental period continues until Customer has emptied the Tanks of all contents and cleaned the Tanks in accordance with all applicable municipal, provincial, territorial and federal laws, ordinances and regulations including but not limited to Environmental Laws (“Empty Condition”). Rental charges do not include the cost of the Refueling Service Charge, any applicable Taxes (as defined below), the cost of the Delivery and Pickup Service Charge, transportation surcharges, the cost of the Environmental Service Charge (as defined below) or other miscellaneous charges, the amount(s) of which are disclosed on the Rental and Service Agreement. Additionally, PowerSafe shall invoice Customer for any additional excess cleaning or repair costs, including:
(i) removal of any alterations made by Customer to the Equipment;
(ii) restoration of the Equipment to its original configuration;
(iii) re-lining or re-painting of Tanks;
(iv) disposal of any contents left in Tanks; or
(v) transportation to and from an approved repair facility. 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. On power equipment, operations in excess of one shift will be as follows: one and one-half times the rental charge for double shift and two times the rental charge for triple shift. Customer will truthfully and accurately certify to PowerSafe the number of shifts the Equipment was operated. Customer’s right to possess the Equipment terminates on the expiration of the Rental Period and retention of possession after this time is a material breach of the Agreement. TIME IS OF THE ESSENCE OF THE AGREEMENT.
16. REFUELING SERVICE CHARGE. Customer acknowledges that a “Refueling Service Charge” will be applied to all Equipment not returned with a full tank of fuel. The exact cost of the Refueling Service Charge may vary depending on the rate being charged by the Store Location on the date Customer returns the Equipment. Customer acknowledges that the Refueling Service Charge is not a retail sale of fuel. Customer may avoid the Refueling Service Charge if Customer returns the Equipment with a full tank of fuel.
17. ENVIRONMENTAL SERVICE CHARGE. Due to the hazardous nature of some waste and other products, to comply with federal and provincial environmental regulations, and to promote a clean environment, PowerSafe charges an “Environmental Service Charge” for certain rentals. This is not a government-mandated charge. The Environmental Service Charge is not designated for any particular use and is used at PowerSafe’s discretion. The Environmental Service Charge is 1.84% of the rental charge and will not exceed $99.00. Customer acknowledges the items indicated in the Rental and Service Agreement are subject to the Environmental Service Charge and Customer agrees to pay that Environmental Service Charge.
18.DEPOSIT.In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms of the Agreement to be performed by Customer. In the event of any breach by Customer, the deposit will be credited against any damages, cost or expense incurred by PowerSafe as a result of the breach.
19.PAYMENT. All amounts due hereunder shall be payable in full upon receipt of invoice by Customer. Customer acknowledges that timely payment of rental and service charges is essential to PowerSafe’s business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and PowerSafe agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of two percent (2%) per month (24% per annum) on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law. Rental rates do not include sales tax, goods and services tax or other taxes, levies and assessments required to be collected by PowerSafe from Customer at any time upon, or in respect of, the Equipment and/or the Agreement (collectively, “Taxes”). Customer agrees that PowerSafe reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this Section due to late or past due payment(s) or rental charges or Taxes. In the event Customer provides or asserts that no Taxes should be collected in respect of a transaction, Customer agrees to provide a valid tax exemption certificate, tax registration number or other documentation suitable to PowerSafe evidencing that no Taxes are collectible. Should the transaction later be deemed taxable, Customer is obligated to and shall promptly reimburse PowerSafe for any Taxes, plus applicable interest and penalties thereon, that should have been collected from Customer.
20.TITLE/ NO PURCHASE OPTION / NO LIENS. With the exception of, Specialty Media, the Agreement is not a contract of sale, and title to the Equipment shall at all times remain with PowerSafe. Unless covered by a specific supplemental agreement signed by PowerSafe, Customer has no option or right to purchase the Equipment. Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances.
21.TIREANDTUBE REPAIR OR REPLACEMENT. Repair or replacement of tires and tubes on Equipment is the responsibility of Customer and is not included in the rental rate.
22.DEFAULT.Customer shall be deemed in default should Customer fail to pay any amount when due hereunder; fail to perform, observe or keep any provision of the Agreement; become “Insolvent” (as defined herein), or should PowerSafe anticipate that Customer may become Insolvent; or otherwise be in default. If Customer is in default, PowerSafe may do any one or more of the following:
(i) terminate the Rental Period;
(ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor;
(iii) cause PowerSafe’s employees or agents, with notice but without legal process, to enter upon Customer’s property and take all action necessary to retake and repossess the Equipment, and Customer hereby consents to such entry, re-taking and repossession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by PowerSafe in retaking and repossessing the Equipment; or
(iv) pursue any other remedies available by law. Customer shall be considered “Insolvent” if Customer shall generally not pay, or be unable to pay, or admit its inability or anticipated inability to pay its debts as such debts become due; make an assignment for the benefit of creditors, or petition or apply to any court or tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; have had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made; or take any action indicating its consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its properties.
23.CUSTOMER’S INSURANCE COVERAGE. Customer agrees to maintain and carry, at Customer’s sole cost, the following insurance:
(i) commercial auto liability insurance with at least a per occurrence limit of $2 million;
(ii) commercial general liability insurance (providing coverage equal to or greater than the standard ISO CG 00 01 12 04 form) with limits of insurance not less than $2 million per occurrence and $4 million in the aggregate; and
(iii) property insurance for the full replacement cost of the Equipment, including coverage for all risks of loss or damage to the Equipment. Customer shall obtain insurance policies that provide, or are endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by PowerSafe. PowerSafe shall be named as an additional insured for liability insurance and, if applicable, additional loss payee for property insurance. Any deductibles or self-insured retentions shall be the sole responsibility of the Customer. All insurance required by the Agreement shall include a waiver of rights of recovery against PowerSafe or its insurers by the Customer and its insurers, as well as a waiver of subrogation against PowerSafe or its insurers. The policies required hereunder shall provide that PowerSafe must receive not less than 90 days’ notice prior to any cancellation. FOR RENTAL OF EQUIPMENT NOT LICENSED FOR ROAD USE, CUSTOMER MUST EITHER ELECT TO NAME POWERSAFE AS LOSS PAYEE EVIDENCING PROPERTY INSURANCE COVERAGE OR ELECT TO PURCHASE THE RENTAL PROTECTION PLAN.
24.NOASSIGNMENT, LENDING OR SUBLETTING. Customer shall not sublease, subrent, assign or loan the Equipment without first obtaining the written consent of PowerSafe, and any such action by Customer, without PowerSafe’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth in the Agreement unless PowerSafe approves otherwise in writing. PowerSafe may at any time, without notice to Customer, transfer or assign the Agreement or any Equipment or any moneys or other benefits due or to become due hereunder.
25. SERVICES PROVIDED IN CONNECTION WITH RENTAL OF EQUIPMENT.
A. TRENCH SERVICES. “Trench Services” may include the engineering, delivery and pickup of the trench/shoring system (the “System”). The System is to be used in complete accordance with any manufacturer’s tabulated data that is provided therefor. PowerSafe makes no representation or warranty about, and shall not be responsible for, such data. If PowerSafe provides an on-site observer (the “Observer”) to observe the installation of the System, neither the presence of the Observer at the jobsite nor the provision of the Trench Services by PowerSafe shall relieve Customer from fulfilling, and Customer assumes full responsibility for, the construction means, methods, sequence, techniques and procedures necessary to use the Equipment, including but not limited to the assembly, installation, welding, maintenance, deflection, dewatering and removal of the System in accordance with the requirements of this Agreement, and all applicable municipal, provincial, territorial and federal laws, ordinances and regulations, including those related to occupational health and safety and to the environment.
B. SCAFFOLDING SERVICES. “Scaffolding Services” may include the installation and dismantling of scaffolding, including all parts and accessories thereto. Unless otherwise agreed to by the parties in writing, Customer shall
(i) provide a clean, unobstructed, and safe area to perform the Scaffolding Services;
(ii) move planking, sidewall brackets, and guardrails as necessary for completion of the Scaffolding Services;
(iii) install toe boards, mesh, and/or patch ties in holes;
(iv) maintain and use the Equipment in accordance with all applicable municipal, provincial, territorial and federal laws, ordinances and regulations, including those relating to occupational health and safety and to the
environment, as well as the manufacturer’s safety rules and instructions;
(v) keep all persons (other than PowerSafe employees) off and away from the Equipment during its erection and dismantling;
(vi) take reasonable steps to protect all buildings, properties, and grounds, including but not limited to grass and landscaping;
(vii) be solely responsible for providing all necessary and required fall protection to employees and others using the Equipment in compliance with occupational health and safety laws and regulations; and
(viii) be solely responsible for determining if the ground, slab, roof, or structure(s) the Equipment is set upon is/are capable of supporting the loads, people and materials used and placed upon the Equipment. In addition, Customer shall be responsible for obtaining all required permits necessary for the Scaffolding Services. Upon completion of the installation, Customer shall sign the Customer Acceptance Certificate provided by PowerSafe.
C. FLUID SOLUTIONS SERVICES.
i. “Fluid Solutions” means fluid storage, transfer and/or treatment, and includes but is not limited to, the rental of Tanks, pumps, filtration, and any accessories, attachments, or other items delivered to Customer, as well as any ancillary services thereto. Fluid Solutions may include the design, installation, operation, ongoing maintenance, monitoring and dismantling of the Fluid Solutions system (“Fluid Solutions Services”). Customer shall provide accurate measurements, specifications and any supporting documentation to assist in the Fluid Solutions Services as requested by PowerSafe. Unless otherwise agreed to by the parties, Customer shall (i) have adequate lifting equipment on site to load and unload during set up and break down; (ii) insert, remove and maintain sewer pipe plugs and suction screens as necessary; (iii) provide any and all containment and required matting; (iv) obtain any and all rights of way, permits and easements as necessary; (v) provide adequate staging areas, water sources and access thereto; (vi) provide necessary controls of erosion, odor and traffic, including site restoration, as necessary; (vii) provide fueling and/or adequate power, including cable and an electrician, as necessary; (viii) perform daily inspection and maintenance of the Equipment during the Rental Period; and (ix) provide access at all times to the Fluid Solutions system and a clean, unobstructed and safe area to perform the Fluid Solutions Services.
ii. Scope of Services and Change Orders. The scope of services (“Scope”) provided for each job shall be incorporated into the Agreement. Unless specifically agreed to in the Scope, Customer, at its cost and expense, shall obtain all required building and construction permits, inspections and certificates, as well as any permissions and authority necessary to perform the Fluid Solutions Services. If the type of liquid, including its constituents and other characteristics (for example, viscosity, turbidity), the volume or the rate of flow (whether due to weather or other factors not specifically under PowerSafe’s control), or any other material information on which PowerSafe relied when designing the Fluid Solutions Services materially change at any time, PowerSafe shall notify Customer and request an emergency change order (“Emergency Change Order”). Customer acknowledges that, due to the nature of the Fluid Solutions Services which are tailored to specific information and data, in the event of such material change, it is imperative that Customer immediately respond to any request for Emergency Change Order to avoid a spill or other incident. Therefore, Customer shall designate one or more authorized representatives who will be available to PowerSafe 24 hours per day/7 days per week/365 days per year to respond to such requests. Customer agrees that the verbal or written approval (whether by email or text or other document) of such designated representative shall be binding and shall be subject to the terms and conditions set forth in the Agreement. Further, if Customer’s authorized representative does not immediately respond to such request, Customer agrees that PowerSafe, in its sole discretion, may take the action it deems most effective to mitigate any spill, incident or accident and Customer further waives the right to contest such action and agrees that PowerSafe shall not be liable to Customer or any other person in connection with such action, and Customer shall be responsible for the additional costs incurred thereby.
iii. Specialty Media. Specialty Media shall be deemed purchased under this Agreement on an “AS-IS, WITH ALL FAULTS” basis and is non-refundable once delivered to Customer. At the expiration of the Rental Period, Customer is responsible for emptying and disposing of all Specialty Media in compliance with all applicable municipal, provincial, territorial and federal laws, ordinances and regulations, including those relating to occupational health and safety and to the environment. Any spent Specialty Media Customer generates is subject to disposition facility acceptance testing, at Customer’s sole cost and expense. The disposition facility may periodically re-test spent Specialty Media to assure it remains acceptable for disposition. If spent Specialty Media testing determines the spent Specialty Media is unacceptable for any designated disposition facility, use of an alternate disposition facility may result in additional cost and Customer shall pay said additional cost. Customer shall provide to PowerSafe any and all information required by the disposition facility or PowerSafe, related to the evaluation of the acceptance of spent Specialty Media.
D. POWER AND HVAC. “Power and HVAC Services” may include power and HVAC system start-up support, installation of low voltage cables, installation of temporary chilled water piping, on-site training for Customer’s employees, 24 hours per day/7 days per week technical assistance and on-site support, and monitoring of selected installing trades. Customer hereby consents to PowerSafe’s use of a third party technician to perform installation and hook-up services of the Equipment, if Power and HVAC Services are requested by Customer. Unless otherwise agreed to in writing by the parties, Customer shall (i) perform daily inspection and maintenance of all Equipment during the Rental Period; (ii) decontaminate Equipment of any chemical or hazardous fluids; (iii) obtain all necessary permits and regulatory inspections; (iv) replace dirty air filters on all air handlers and air conditioners; (v) load and unload all rental Equipment from trailers (if applicable); (vi) remove all fuel from any supplemental tanks prior to Equipment decommissioning; (vii) fuel and/or refuel all generators, boilers or fuel tanks with #2 fuel oil; (viii) check and record oil levels in generator daily; (ix) allow PowerSafe to perform service every 250 hours on all Equipment; and (x) furnish a qualified electrician to connect and disconnect Equipment to utility power.
E. TOOL SERVICES. “Tool Services” may include tool tracking services, tool tracking software, utilization data (via printed/electronic reports), an on-site technician to manage tools and other equipment, and a tool room, if needed. Unless otherwise agreed to by the parties, Customer shall (i) provide a safe location for the trailer where it can be housed for the duration of the project; (ii) provide power to supply electricity to the trailer (generator or plant power); (iii) install scaffolding around the trailer if the site does not make use of the trailer’s stairs; (iv) supply PowerSafe with information regarding access requirements, including but not limited to, site-specific classes, drug testing requirements, fatigue day rules, etc., prior to delivery; and (v) supply PowerSafe with a list of personnel authorized to check-in and check-out tools and/or allowed to request addition/removal of inventory.
1. Any failure of PowerSafe to insist upon strict performance by Customer of any terms and conditions of the Agreement shall not be construed as a waiver of PowerSafe’s right to demand strict compliance. Customer has carefully reviewed the Agreement and waives any principle of law which would construe any provision hereof against PowerSafe as the drafter of the Agreement. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of the Agreement.
2. Customer agrees to pay all reasonable costs of collection, court, legal fees and other expenses incurred by PowerSafe in the collection of any charges due under the Agreement or in connection with the enforcement of its terms.
3. Customer shall pay the rental charge(s) without any offsets, deductions or claims.
5. PowerSafe shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of: (i) permanent closure of the Store Location; (ii) declaration of any emergency, disaster or similar situation by any federal, provincial, territorial or local government; or (iii) as otherwise set forth in the Agreement.
6. PowerSafe may make any registrations, recordation’s, filings or financing statements necessary or desirable to protect or discharge, as the case may be, its ownership of and interests in the Equipment at the expense of Customer. Customer hereby consents to same and shall give such further assurances and do such acts and execute such documents as may be required by PowerSafe to give effect to the Agreement and the rights and obligations hereunder. To the extent permitted by applicable law, Customer irrevocably waives the right to receive a copy of any financing statement or financing change statement (or any verification statement pertaining thereto) filed under the personal property security statutes of the provinces and territories of Canada by PowerSafe in respect of the Agreement, and Customer hereby releases any and all claims or causes of action Customer may have against PowerSafe for failure to provide any such copy.
7. The 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.
27. CRIMINAL WARNING. The use of false identification to obtain Equipment or the failure to return the Equipment by the end of the Rental Period may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions.
28. GPS TRACKING. Customer and PowerSafe each consent to the collection and monitoring of electronic information, including Global Positioning System (“GPS”) data, generated by or in connection with Customer’s use of or the location of the Equipment. Customer agrees that PowerSafe owns the data described in this paragraph and may use such data, including GPS data, for any purpose, including commercial purposes.
29.ENTIREAGREEMENT/ ONLY AGREEMENT. The Agreement, and any Addendum hereto, represent the entire agreement between Customer and PowerSafe with respect to the Equipment, the rental of the Equipment, and the Service(s) provided to Customer. There are no oral or other representations or agreements not included herein. None of PowerSafe’s rights or Customer’s rights may be changed and no extension of the terms of the Agreement may be made except in writing, signed by both PowerSafe and Customer. Any use of Customer’s purchase order number on the Agreement is for Customer’s convenience only and terms and conditions, whether oral or written, that are different or inconsistent with the terms contained herein are hereby rejected by PowerSafe.
30.ORDEROFPRECEDENCE.The terms and conditions of the Agreement shall control over any conflicting preprinted terms and conditions contained in Customer’s purchase order or similar documents and such other terms are hereby rejected by PowerSafe. In the event that PowerSafe signs Customer’s purchase order or similar document, such signature shall be solely for the purpose of acknowledging the order; it being the express intent of the parties that the Agreement and these terms and conditions shall govern all rental and service transactions.
31. CLASS ACTION WAIVER. Customer agrees that any claims or proceedings brought by Customer relating to the Agreement will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. Customer will not sue PowerSafe as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against PowerSafe. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.
32. JURY WAIVER. The courts in the province in which the Store Location is located shall have exclusive jurisdiction over all matters relating to the Agreement. TRIAL BY JURY IS WAIVED. PowerSafe shall be entitled to orders of specific performance (without posting bond or other security) in addition to such other remedies as may be available.
33. LANGUAGE. The parties agree that the Agreement and any other document contemplated hereby will be drawn up in the English language only.