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Terms and Conditions of Rental Agreement
1. GENERAL RESPONSIBILITIES
This Rental Agreement (“Agreement”) is between Livingstone Outdoor, and the customer identified in this Agreement (“Customer” or “You”). Livingstone Outdoor will provide You the tool(s) identified in this Agreement (the “Equipment”) “as is” and in good working condition for the time (“Rented Period”) and rental subtotal price identified in this Agreement (“Rental Price”). You agree to return the Equipment prior to the expiration of the Rented Period, or to pay the additional rental fees described in Section 9 of this Agreement.
2. PHYSICAL CONDITION OF RENTAL EQUIPMENT
You acknowledge that, prior to taking the Equipment, You examined it and saw it in operation (if appropriate). You acknowledge that the Equipment is in good working condition except for any defects noted in this Agreement. It is your responsibility to return the rented Equipment to Livingstone Outdoor’s ownership in good working condition and free of damage.
3. TITLE
You agree that Livingstone Outdoor shall retain all right to ownership and title to the Equipment. You also agree that no ownership or title of the Equipment is transferred to You under this agreement, and You will do no act nor permit anyone else to do any act inconsistent with Livingstone Outdoor’s ownership and title with the Equipment.
4. USE OF THE EQUIPMENT
a. You agree that You are satisfied with the instructions given by Livingstone Outdoor as to the proper and safe manner of using the Equipment of that You told Livingstone Outdoor that you are familiar with the proper and safe manner of using the Equipment. You further agree: (i) that the Equipment will be used at the designated address and only for the purpose for which the Equipment was manufactured and intended; (ii) to not sublease the Equipment; (iii) that You will keep the Equipment free and clear of all liens, charges, and encumbrances: (iv) to use the Equipment only for its customary purpose and immediately discontinue use of the Equipment if it becomes unsafe and/or in a state of disrepair; (v) to use the Equipment in compliance with all applicable laws and regulations; (vi) to return the Equipment to Livingstone Outdoor in as good order and condition as when received; (vii) that, as indicated in this Agreement, You have taken and read all manuals, written operating instructions, and warnings as supplied for the Equipment or that You are already familiar with these instructions, and warnings as supplied for the Equipment or that You are already familiar with these instructions and consequently declined, and indicated on this Agreement to takes these manuals and instructions.
b. You further agree that You shall not: (i) alter or cover up any decal insignia on the Equipment or remove any operational or safety instructions; (ii) use the Equipment in a negligent, illegal, unauthorized, or abusive manner, or in any publication (print, audiovisual or electronic); or (iii) remove or utilize the Equipment outside of Canada.
5. RELEASE, INDEMNIFICATION AND WAIVER OF DAMAGES; RESPONSIBILITY FOR USE; NO WARRANTIES
You are responsible for the use of the Equipment. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES, RELEASES, WAIVES, AND HOLDS LIVINGSTONE OUTDOOR HARMLESS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES (INCLUDING LEGAL FEES AND EXPENSES), LIABILITIES AND DAMAGES (INCLUDING PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOST PROFITS, AND SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES) IN ANY WAY CONNECTED WITH THE EQUIPMENT, ITS OPERATION OR USE, OR ANY DEFECT OR FAILURE THEREOF OR A BREACH OF LIVINGSTONE OUTDOOR’S OBLIGATIONS HEREIN. CUSTOMER’S INDEMNITY OBLIGATION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
Livingstone Outdoor does not design or manufacture the Equipment and is not the agent of the manufacturer or any other supplier of the Equipment.
YOU AGREE THAT NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE HAVE BEEN MADE BY LIVINGSTONE OUTDOOR IN CONNECTION WITH RESPECT TO THE EQUIPMENT RENTED. IN NO EVENT SHALL LIVINGSTONE OUTDOOR BE LIABLE FOR SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT.
You acknowledge acceptance of the Equipment on a “as is” and “where is” basis, with “all faults” and without any recourse whatsoever against Livingstone Outdoor.
IN ANY PART OF THIS SECTION IS DETERMINED INVALID BY A COURT OF COMPETENT JURISDICTION, CUSTOMER AGREES THAT THIS CLAUSE SHALL BE ENFORCABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE EXTENT THAT YOUR JURISDICTION OF RESIDENCE DOES NOT ALLOW (I) THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) THE EXCLUSION OR LIMITATION OR LIABILITY FOR BODILY INJURY (INCLUDING PERSONAL INJURY OR DEATH); OR (III) THE EXCLUSION OR LIMITATION OF DAMAGES CAUSED DIRECTLY BY A GROSS OR INENTIONAL FAULT, SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
6. RESPONSIBILITY FOR EQUIPMENT
You are responsible for the Equipment from the time it is rented by You until it is returned. Your responsibility includes, but is not limited to, ensuring the proper oil levels are maintained and proper fuel or fuel/oil mix is used, if applicable. If the Equipment is lost, stolen, or damaged under any circumstances while rented by You, regardless of fault, You shall be responsible for all charges to replace or repair the Equipment including any labour costs and lost rental revenue. If the Equipment is not returned clean, a minimum cleaning charge of $25.00 will apply.
7. LOADING AND UNLOADING OF EQUIPMENT
In the event that Livingstone Outdoor’s employees assist in loading or unloading of the Equipment, You assume the risk of, and hold Livingstone Outdoor harmless from any property damage or personal injuries in connection with loading and/or unloading the Equipment.
8. EQUIPMENT FAILURE AND REPAIR
You agree to immediately discontinue the use of the Equipment should it become unsafe or in any state of disrepair, and You agree to notify Livingstone Outdoor of the facts surrounding such occurrences. Livingstone Outdoor may, in its sole discretion, make the Equipment operable within a reasonable time, or provide You with a similar piece of equipment, if available, or adjust the rental charges. This provision does not relieve You from the obligation imposed by other sections of this agreement. In all events, Livingstone Outdoor shall not be responsible for any injury or damage, including consequential damage, resulting from the failure or defect of any rental equipment.
9. RENTAL CHARGES; RETURN OF THE EQUIPMENT
a. The Equipment is rented to You subject to this Agreement for the Rental Price and for the Rented Period in this Agreement. If the Equipment is rented to You on a monthly basis, a month is defined as being equal to (28) days. If You would like to extend the term of this rental beyond the time and date specified under Date and Time Due In in this Agreement, You must immediately notify Livingstone Outdoor to obtain approval to extend this Agreement and the terms for such an extension.
b. If this Agreement has not been extended and You fail to return the Equipment when due, or You default on your obligations hereunder, You will incur and be charged an additional rental fees using the rental price structure agreed upon on the initial rental fee on a daily, recurring basis beginning on the day following the end of the Rented Period until either (i) the Equipment is returned, or (ii) or replaced at the Customer’s expense. In the event there are 14 consecutive daily unsuccessful charges of the Additional Rental Fees made to your credit card, Livingstone Outdoor may take such steps as permitted by law to repossess the Equipment and/or be reimbursed the reasonable value of the Equipment based on the condition of the Equipment at the beginning of the Rented Period. In such event, You shall reimburse Livingstone Outdoor for all costs incurred, including without limitation, reasonable legal fees. YOU EXPRESSLY AGREE AND HEREBY AUTHORIZE LIVINGSTONE OUTDOOR TO CHARGE TO YOUR CREDIT CARD ALL AMOUNTS SHOWN IN THIS AGREEMENT, AND ALL CHARGES SUBSEQUENETLY INCURRED BY YOU UNDER OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO THE EQUIPMENT, EXTENSION OF THE RENTED PERIOD, REPAIR COSTS, AND ANY CHARGES INCURRED FOR FAILTURE TO TIMELY RETURN THE EQUIPMENT, INCLUDING ADDITIONAL RENTAL FEES AND/OR EQUIPMENT REPLEACEMENT FEES. To the extent permitted by law, You agree that an additional service charge of the lesser or (i) 2.0% per month (24%) per annum), and (ii) the maximum rate permitted by law, shall be assessed on all delinquent accounts, until paid in full. You are prohibited from using any Livingstone Outdoor charge accounts and/or gift cards to pay for the delinquent or past due accounts. You will not be permitted to rent any other equipment until your account is paid in full. If your payments towards the accounts is returned, denied, or otherwise unable to be processed, the balance due may be sent to a 3rd party collection agency. YOU HEREBY AGREE THAT YOU ARE NOT ENTITLED TO NOTICE OR DEFAULT OR NOTICE OF ANY ACTION OR ENFORCEMENT BY LIVINGSTONE OUTDOOR OTHER THAN WHAT IS EXPRESSLY PROVIDED FOR UNDER THIS AGREEMENT. Should Livingstone Outdoor fail to meet any of its obligations under this Agreement, your only remedy is repair or replacement of deficient Equipment or to receive, at Livingstone Outdoor’s option, a rental charge adjustment.
c. Notwithstanding any repossession of the Equipment by Livingstone Outdoor and/or payment of the reasonable value of the Equipment as described above, You shall remain responsible for amounts due and unpaid by You to Livingstone Outdoor under this Agreement, including any amount incurred by Livingstone Outdoor as a result of, or in connection with, the repossession of the Equipment as provided for in this clause. You acknowledge Livingstone Outdoor is entitled to take any of all of the action specified in clauses 9(a) and 9(b).
10. EVENTS OF DEFAULT
You acknowledge that You will be deemed to be in default under this Agreement if (i) You breach any term or provision of this Agreement, (ii) You permit a judgment against You to remain unpaid for a period of ten (10) days after the date of judgement, or (iii) any proceedings in bankruptcy or insolvency or for your reorganization or liquidation are commended against You or your property.
11. EFFECT OF DEFAULT
You agree if any of the above events of defaults occurs, all rent and other charges then and thereafter payable by You to Livingstone Outdoor under this Agreement shall immediately accelerate and become due and payable to Livingstone Outdoor without notice or demand to You. You shall immediately and at your sole expense return the Equipment to Livingstone Outdoor as provided herein. Livingstone Outdoor may take steps to secure return of the Equipment and/or the reasonable value of the Equipment as provided in Clause 8 of this agreement. You acknowledge that no waiver by or on behalf of Livingstone Outdoor by You under this agreement shall be deemed a waiver or any future breach or default. No delay in exercising its rights shall constitute a waiver or any right or prejudice Livingstone Outdoor’s exercise of any remedies in respect of any existing or future default.
12. COLLECTION COSTS
You agree to pay legal fees, collection fees, court costs and any other expenses incurred in collecting any charges under this Agreement, in repossessing the Equipment or otherwise enforcing the terms of this Agreement.
13. CHARGES ON CREDIT CARDS
a. You agree that Livingstone Outdoor is authorized to add applicable additional rental and insurance charges and taxes and Livingstone Outdoor’s charges and expenses of cleaning the Equipment, if any, and other amounts which may be or become due under this Agreement to the applicable credit card transaction record. You acknowledge that this right is in addition to any other rights of Livingstone Outdoor under this Agreement or available to it at law.
b. You agree to the reservation of credit, by credit card issuer, up to the estimated charges due under this Agreement and authorize to process a credit card voucher, if applicable, for all charges due under this Agreement.
14. PAYMENT & DEPOSITS
You will pay the Rental Price, without any offsets, in full at the time of return using a payment card approved by Livingstone Outdoor (“Customer Card”). To the extent permitted by law, You must notify Livingstone Outdoor in writing of any disputed amounts, including credit card charges, within four (4) days after the receipt of Livingstone Outdoor rental contract/invoice, or You shall be deemed to have irrevocably waived Your right to dispute such amounts. You agree to pay the deposit identified in this Agreement (“Deposit”), without any offsets, in full at the time of rental using a Customer Card. You acknowledge that Livingstone Outdoor may apply the amounts of the Deposit to the amount owing to Livingstone Outdoor. The Deposit will only be returned to You after all amount payable to Livingstone Outdoor are paid in full.
15. MODIFICATION OF AGREEMENT
This constitutes the entire agreement between You and Livingstone Outdoor and You acknowledge that there is no collateral, oral, or other agreements outstanding. None of Livingstone Outdoor’s rights may be changed and no extension of the term of this agreement may be made except in writing, and signed by Livingstone Outdoor and You, and made part of this Agreement.
16. ASSIGNMENT
You acknowledge that Livingstone Outdoor may assign its right under this agreement and transfer its title in Equipment without your prior written consent. You agree, however, not to sublet, loan or assign the Equipment.
17. DAMAGE PROTECTION
Damage Protection is an optional service offered by Livingstone Outdoor to cover repair or replacement charges if the Equipment is rented by Livingstone Outdoor and is damaged during normal use. The charge for the Damage Protection service is 15% of the total rental fee and will appear as a separate line item on the invoice. You must accept or decline the Damage Protection service. Damage Protection is not insurance. Damage Protection only covers the cost of repairs or replacement of the rented Equipment damaged during normal use of the Equipment. Damage Protection does not cover the loss of or damage to the Equipment during transport or loss or damage cause by theft, abuse, misuse, neglect, intentional acts, or failure to
follow the instructions provided for proper use and case of the rented Equipment. You expressly acknowledge and agree that You will be responsible for all such repair or replacement cost.
18. ENGLISH LANGUAGE
The parties hereto hereby acknowledge that they have required this Agreement and all related documents and notices to be drawn up in the English language.
19. REPAIR COST
The Customer agrees that an estimated “Repair Cost” shall be charged for equipment that is returned with damage due to abuse, misuse, neglect, intentional acts and/or failure to follow the proper use and care instructions for the Equipment. In the event the Repair Cost is greater than the replacement value of a new tool, a new tool will be purchased to replace the damaged tool at the expense of the Customer. Customer acknowledges and agrees to pay the Repair Cost or Replacement Cost and authorizes Livingstone Outdoor to charge the Repair Cost to the Customer Card.
20. NOTICES
In compliance with your consent, applicable law, or both, Livingstone Outdoor may elect to send any notices to Customer by any means determined by Livingstone Outdoor. If Customer has provided Livingstone Outdoor with an email address, Livingstone Outdoor may, in compliance with your consent, applicable law, or both, send communications including notices to Customer by email and any such email notice by Livingstone Outdoor shall be valid notice for purposes of this Agreement, subject to applicable law.
21. CANCELLATION NOTICE OR FAILURE TO PICK UP RENTAL ITEM
If You book a rental and don’t end up needing it, Livingstone Outdoor requires notice in writing or by email, a minimum 24 hours before the rental period was scheduled to begin. Notice must include your name and the type of equipment you are renting. Failure to provide notice will result in a minimum one-day rental fee for that item being charged to your credit card without notice.