Lease Terms and Conditions - Dated February 23, 2011
The following Terms and Conditions are applicable to this Agreement.
1. Acceptance
All contracts resulting from this Agreement shall be subject only to these terms and conditions, drawings, specifications or addenda hereto attached. This quotation is subject to availability of the Equipment. In the event ATCO has committed the equipment to a third party after the date of this Quotation and prior to receipt by ATCO of this Quotation duly accepted by the Lessee, then ATCO shall have the right to declare this Agreement null and void without any liability to Lessee by sending notice to the Lessee within a reasonable time of receipt of the acceptance by Lessee of this Agreement.
2. Force Majeure
In the event ATCO's performance under this Agreement, including its ability to deliver the Equipment, is hindered or impaired due to "Force Majeure" as described herein then any resulting delay or failure on the part of ATCO shall not constitute a default hereunder or give rise to any claim for damages. Force Majeure shall include acts of God, strikes, lockouts or other significant industrial disturbances, sabotage, war, blockades, insurrections or riots, fires, walkouts, arrests and restraints of rules and people, civil disturbances, explosions, malfunctions, interruptions, breakdowns, breakages or accidents to machinery, equipment or systems, shortages or commercial disruptions in the supply of materials, equipment or services, any legislative, administrative or judicial action, transportation restrictions or disruptions, road conditions, weather conditions, any other act, omission or event whether of the kind herein enumerated or otherwise not within the reasonable control of ATCO. In the event that performance of this Agreement in the reasonable opinion of ATCO is so affected, then ATCO will notify the Purchaser in writing providing a workaround plan and shall complete the performance of the Agreement with such adjustments relating to timing as are reasonably required by the existence of the Force Majeure.
3. Limitation of Liability
Notwithstanding any other terms of this Agreement, no recovery against ATCO on a claim of any kind shall exceed the total rental payments actually received by ATCO for the Equipment over the term of this Agreement unless due to the negligence or wilful misconduct of ATCO.
4. Applicable Laws
This Agreement shall be construed in accordance with and governed by the laws of the Province of the ATCO office as indicated herein.
5. Federal, Provincial and Municipal Taxes
Unless otherwise stated, prices exclude all taxes and duties levied by any level of Government.
6. Consequential Damages
Neither party hereto shall be liable to the other in connection with this Agreement or the subject matter hereof for any indirect, incidental, special, or consequential damages, including but not limited to any overhead costs, loss of revenue, cost of capital, or loss of profit or business opportunity or reputation or from any cause whatsoever, whether such liability arises out of contract, tort (including negligence), strict liability or otherwise.
7. Term and Overholding
The Lease herein shall be for the said term and the rentals set forth on the face of the Lease Quotation subject to sooner termination as herein provided. In the event the Lessee retains possession of the Equipment at the expiration of the said term, the Lease shall be deemed to continue on a month to month basis at the monthly rental rate specified for the said term and on the same terms and conditions as contained herein or a new lease will be negotiated. At any time after the lease term or renewal thereof, Lessee or ATCO may terminate this Agreement by giving ten (10) days written notice to the other party at the address above at which time the Equipment shall be returned to ATCO at the place stipulated herein at the risk and expense of the Lessee. All obligations and liabilities of Lessee to ATCO which accrue under this Agreement shall survive the expiry of the term or any renewal or extension or the return of the Equipment to or repossession of the Equipment by ATCO.
8. Customer Security Deposit
It is understood and agreed between the parties that ATCO will retain Lessee’s security deposit on account until such time as the Equipment is returned and inspected by ATCO. Payment of this security deposit does not relieve the Lessee from paying any rental, transport or other charges under this Agreement and ATCO may, at its sole discretion, apply the security deposit against amounts owing by Lessee under this Agreement or any other agreement between the parties. ATCO shall return the security deposit when, in ATCO’s reasonable opinion, it is no longer required.
9. Possession and Inspection
The Lessee shall keep the Equipment in its own custody and control and will not move the Equipment from the location stipulated herein without the previous consent in writing of ATCO first had and obtained; and will permit ATCO, with reasonable prior notification from ATCO, at all reasonable times to have access to the Equipment to inspect the condition thereof. Lessee represents to ATCO that the Equipment will be used for business purposes only.
10. Time of Payment and Default
Time is of the essence. The Lessee shall during the term of this Lease pay to ATCO in advance without abatement, set off or counterclaim, the monthly rental payment set forth, the first such payment to be on the commencement date and each subsequent payment on the first day of each succeeding month thereafter during the said term, and any extensions thereof. Provided always that in the event the said term should commence and/or terminate during a month, then the rent payable for the portion of the month shall be prorated on the basis of a thirty-day month. If the rent for the Equipment shall not be paid at the time and in the manner aforesaid, the Lessee shall pay to ATCO interest on the arrears at the rate of 1-1/2% per month (18% per annum) until the time of payment or up to and until ATCO shall retake or receive possession pursuant to the terms of the Lease, whichever of such times shall first occur and all costs and expenses incurred by ATCO obtaining payment of such arrears or the sums required to be paid by the Lessee pursuant to the terms of the Lease, or in obtaining possession and whether or not any action or suit shall have been instituted shall be recoverable from the Lessee in addition, and without prejudice, to ATCO's right to damages from a breach of the Lease. If the Lessee shall make default in punctual payment of the monies required to be paid pursuant to the provisions of this Lease or any renewal or any extension thereof or if a Receiving Order in Bankruptcy shall be made against the Lessee, or if the Lessee shall call a meeting of the Lessee's creditors, or if the Lessee shall execute any assignment for the benefit of the Lessee's creditors, or if the Lessee (if a limited company) shall enter into compulsory or voluntary liquidation, or if the Lessee shall fail to observe and perform the terms and conditions of this Lease on the Lessee's part to be observed and performed, or if the Lessee shall do or cause to be done or permit or suffer any act or thing whereby ATCO's rights in the Equipment may be prejudiced or put in jeopardy, ATCO may, without any notice, terminate this Agreement, and it shall thereupon be lawful for ATCO to retake possession of the Equipment and for that purpose to enter into or upon any premises where the same may be, and the determination of the Lease under this clause shall not affect the right of ATCO to recover from the Lessee any monies due to ATCO under this Lease, or damages for breach thereof, provided always that Lessee shall indemnify and save harmless ATCO from any claims, causes of action, which may arise by reason of ATCO retaking possession of the Equipment.
11. Third Party Payments
The Lessee will duly obtain and punctually pay all rent, rates, taxes, including property taxes, regulatory approvals, permits, charges, licenses, tariffs, tolls and impositions of every nature and kind whatsoever incurred and which may be payable in respect to the transportation, possession or use of the Equipment or in respect of the lands on which the Equipment shall from time to time be situated and shall produce all receipts for such payment to ATCO on demand and will protect the Equipment against distress, execution or seizure and indemnify ATCO against all losses, cost, charges, demands or expenses incurred by the Lessee by reason of or in respect of any distress, execution, seizure or failure of the Lessee to make payments as herein required. Nor shall ATCO be in any way obliged to ascertain, obtain and/or advise the Lessee on any requirements of any jurisdiction in which the Equipment is to be transported in, used by or in possession of the Lessee.
12. Insurance
The Lessee during the term of this Lease will insure and keep insured the Equipment and every part thereof by insurance in the name of the Lessee with first loss payable to ATCO without recourse to ATCO for the full insurance value as specified against loss or damage from fire, lightning, explosion, windstorm, hail, riot, smoke damage, flood or from whatever cause arising. The insurance policy shall contain a provision whereby the Insurer waives any rights of subrogation which the Insurer may have with respect to ATCO, premiums for such insurance shall be paid by the Lessee and a certificate of insurance shall be deposited with ATCO. All such insurance shall be carried with an Insurer satisfactory to ATCO. The Lessee shall be responsible for any and all deductibles. The Lessee covenants that it will maintain and keep in force during the currency of this Lease, commercial general and excess/umbrella liability covering public liability and property damage in a with a combined sum of not less than Two Million ($2,000,000.00) Dollars without recourse to ATCO with an insurer reasonably satisfactory to ATCO and the Lessee shall deposit with ATCO a certificate of insurance evidencing such insurance. The insurance policy or policies shall contain an endorsement whereby the Insurer waives any right of subrogation that the Insurer may have with respect to ATCO. In the event that the Lessee shall fail to insure and keep insured as herein provided and provide evidence of such insurance, ATCO shall be free to invoice the stated PDRW insurance on the face of this Lease Quotation and the amount thereof shall be payable with the next ensuing monthly installment of rent.
13. Event of Destruction or Partial Destruction
If the Equipment shall be damaged or destroyed by any other cause, all monies received or receivable with respect to such insurance as aforesaid, shall forthwith be received by ATCO. In the event that insurance monies payable are, for any reason whatsoever, insufficient to cover, in the case of damage, repair cost, in the case destruction, the Insurance Value as set forth in the face of the Lease Quotation, the Lessee shall upon demand pay to ATCO an amount equal to such deficiency. In the event that the damage should render the Equipment unfit for use by the Lessee, then this Lease shall at the election of ATCO be terminated on Five (5) days written notice directed to the Lessee and the Lessee shall pay to ATCO such rentals as may then be due. In the event that ATCO does not elect to terminate this Lease by reason of the destruction or partial destruction of the Equipment then ATCO shall replace the Equipment with the same or similar Equipment (but not of lesser quality) within thirty (30) days from the date of such destruction and there shall be no abatement of rent whatsoever.
14. Indemnification
The Lessee shall indemnify and save harmless ATCO from and all liability, damages, costs, claims, suits or actions arising out of:
(a) Any damage to the Equipment, excluding damage caused by ATCO, its agents or sub-contractors.
(b) The use, occupancy or possession of the Equipment by the Lessee including any environmental claims.
(c) Any injury to person or persons including death resulting at any time therefrom or occurring in or about the Equipment, except if caused by ATCO.
(d) Any injury to person or persons including death or damage to property occasioned by the use or occupancy of the said Equipment or during the transportation of the equipment by the Lessee, its employees or agents, except if caused by ATCO.
(e) ATCO’s ownership of the Equipment.
ATCO makes no representation or warranty, express or implied, that the Equipment is, or will be, free of mould, bacteria or other biological contaminants of any nature whatsoever. The Lessee acknowledges that it is an express term of this Agreement that ATCO and its officers, directors, employees, agents, affiliates and other representatives shall have no responsibility or liability, in contract, tort or otherwise, to the Lessee or its officers, directors, employees, agents, affiliates or other representatives or any other person who occupies or otherwise uses the Equipment, for any loss, damages or other claim arising from any presence of mould, bacteria or other biological contaminants in or on the Equipment, except if due to the negligence or willful misconduct of ATCO. In the event that ATCO and/or any of its officers, directors, employees, agents, affiliates and representatives are found liable in any amount, tort or otherwise, to any person for any loss, damages or other claims arising from any presence of mould, bacteria or biological contaminants in or on the Equipment, the Lessee agrees to fully indemnify ATCO and its officers, employees, agents, affiliates and representatives in respect of all amounts for which they are found liable. Further, Tthe Lessee agrees to indemnify ATCO and its officers, directors, employees, agents, affiliates and representatives for all reasonable outside legal fees and disbursements incurred in responding to any claim against any of them relating to or rising from presence or alleged presence of mould, bacteria or other biological contaminants on or on the Equipment, unless caused by the negligence or willful misconduct of ATCO or its officers, directors, employees, agents, affiliates and representatives.