TERMS AND CONDITIONS OF SALE
- Price – All prices are subject to change without notice. All prices are tax extra. GST, HST and Provincial Tax are not included. Prices are FOB our warehouse location unless otherwise quoted in writing. Delivery charge will apply to all delivered orders. Incorrect prices in the price catalogue due to calculation or human error will not be honoured and will be corrected at the earliest possible date.
- Terms of Sale – Net 30 days unless otherwise stated. Accounts past due will be suspended. A service charge of 2% per month (24% per annum) will be applied to all overdue accounts. Shipments and deliveries shall at all times be subject to our acceptance and credit approval. Title to the goods does not pass until invoice is paid in full. You agree to pay us all costs, charges and expenses (including, without limitation, legal fees and expenses on a solicitor-client full indemnity basis) incurred by or on behalf of us in connection with the collection of any outstanding amounts and/or our enforcement of any of our rights against you.
- Deposits and Returns – Orders may require a deposit and may not be cancelled without prior written approval. All deposits and down payments are non-refundable. A cancellation charge may apply on cancelled orders. No goods may be returned without prior written approval. A minimum handling charge of 25% will apply to goods returned. This may vary depending upon factory return goods policy.
- Claims – All damage claims must be made to the transportation company as applicable; we are not responsible for any such damaged goods. Shortage claims must be made within 7 days of receipt of shipment. Notification of any invoice errors must be made within 60 days of date of invoice.
- Availability – All goods quoted are subject to prior sale. Goods shown in price catalogue may not be available in all locations and extra freight costs will apply. Contact our applicable location for availability and price confirmation.
- Warranty Disclaimer and Limitation of Liability – We warrant that we have title to the goods sold. Applicable goods are accompanied by manufacturers’ warranties. We hereby assign to you any warranties so extended by such manufacturers to which we are entitled as permitted by law. Except as specifically set out herein, we do not make any guarantees, representations or warranties of any kind or nature, whether expressed or implied, by statute or otherwise, and specifically disclaim any implied guarantees, representations and warranties, whether of merchantability, suitability, fitness for a particular purpose (even if we have been advised of such purpose) or otherwise. In no event will we be responsible or liable for any indirect, special, consequential or punitive damages or any other costs or expenses resulting from the use of or inability to use any of the goods. Notwithstanding the foregoing, in no event shall our liability exceed the amount of the price paid by you for the goods.
- Governing Law – These terms and conditions are made under and shall be governed by and interpreted in accordance with the laws of the province in which our location that made the sale is located (without regard to conflict of law provisions) and the laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this transaction.
- Terms and Conditions Supersede All Others – The terms and conditions herein, and on any Credit Application signed by you, shall govern this transaction and shall supersede any purchase order submitted by you. The terms and conditions of any purchase order submitted by you are null and void and of no legal effect, other than with respect to the identity of and quantity of the goods being purchased.
RENTAL
TITLE: Title to the equipment and accessories leased (collectively, the “Equipment”) shall at all times be and remain vested in Emco Corporation (“Emco”) and nothing in this Agreement shall be deemed to have the effect of conferring upon the Customer any right, title or interest whatsoever in or to the Equipment, other than that of a lessee. Customer shall give notice to Emco immediately if any of the Equipment is levied upon from any cause or becomes liable to seizure.
SUBLETTING: None of the Equipment shall be sublet, rented or lent out by the Customer, or released from its possession and control, nor shall the Customer assign or transfer any interest in this Agreement, without the previous written consent of Emco.
MAINTENANCE, OPERATION AND REPAIRS: Customer declares that Customer and its employees understand the operation of the Equipment and the application for which it is rented. Customer shall ensure that the Equipment is not subjected to careless or needlessly rough usage, and shall not remove, alter, disfigure or cover up any numbering, lettering or insignia displayed upon the Equipment. Customer shall at its own expense maintain and ultimately return to Emco the Equipment clean and in good repair and operating condition. Emco will be the sole judge as to the condition of the Equipment on its return and Emco is hereby authorized to repair/restore the Equipment to its original condition, reasonable wear and tear excepted, at the expense of the Customer.
DAMAGE TO EQUIPMENT: Customer agrees to indemnify Emco against all loss, theft, destruction and damage to the Equipment until returned to Emco, based on the new replacement value of such Equipment.
LIABILITY OF CUSTOMER AND RELEASE: Customer confirms that it is aware of the potential risk of injury, including serious injury or death, from use of the Equipment and knowingly and freely accepts and assumes all such risks, both known and unknown, even if arising from the negligence of Emco or its employees, agents or representatives. Customer agrees to indemnify Emco against all losses, expenses, penalties, claims, demands, suits, damages, condemnations and costs (including legal fees on a solicitor-client basis) which Emco may suffer or may be required or condemned to pay for personal injuries (including death) and/or property damage suffered by any person by reason of the operation, handling, transportation, possession or use of the Equipment by the Customer or its employees, agents, carriers or other persons having possession or control of the Equipment through the Customer. Customer hereby waives all claims which it may have against Emco for any loss or damage which it may suffer, either directly or indirectly, by reason of the condition of the Equipment or its suitability for the work it may be required to perform.
INSPECTION: Before the Equipment is loaded for rental, Emco requires an inspection thereof to be made by the Customer. If Customer fails to make such an inspection, the Equipment shall be presumed, for all purposes hereof, to be in good condition and working order when delivered to Customer or its employee or agent. Emco shall have the right at any time to enter upon the premises or place where the Equipment is located and shall be given free access thereto and afforded all necessary facilities for the purpose of inspecting the Equipment. Customer is responsible for all expenses of operating the Equipment, including all necessary repairs, regular maintenance and replacements including fuel, lubricants and filters and shall not incur for Emco’s account or liability any expense in respect of the Equipment, without Emco’s written consent.
INSURANCE FOR LOSS, DAMAGE OR INJURY: Customer is responsible for all insurance with respect to the Equipment, including insurance for risk of loss or damage to the Equipment regardless of cause (in an amount at least equal to the new replacement cost of the Equipment) and insurance of the risk of personal injury/death or damage to property suffered by anyone from the operation, handling, transportation, possession or use of the Equipment by Customer or its employees, agents, carriers, or other persons having possession or control of the Equipment through Customer. For Equipment valued at $10,000 or more prior to taking possession of the Equipment, or at any time on the request of Emco, Customer shall provide to Emco a certificate of insurance naming Emco as an additional insured and loss payee, undertaking to notify Emco in writing not less than thirty (30) days before any material change, cancellation or termination in the insurance coverage and indicating, at a minimum, the value of the Equipment and the amount and type of insurance coverage. No receipt, review or approval of any such insurance certificate by Emco shall derogate from or diminish Customer’s obligations contained in this Agreement. Emco shall not be responsible or liable for any losses, expenses, penalties, claims, demands, suits, damages, condemnations or costs (including legal fees) directly or indirectly relating to or arising out of the rental or use by Customer of the Equipment or this Agreement, including, without limitation, on account of any personal injury/death, property damage, loss of profits, consequential, incidental or special damages or any other amounts. In any event, the maximum liability of Emco in respect thereof shall not exceed the aggregate amount actually paid by Customer to Emco pursuant to this Agreement.
TERMS OF RENTAL: Rental shall commence on the date and time of the pick-up or shipment by Emco to Customer and terminate on the date and time of return at Emco’s premises. The Equipment must be returned to the location from which Customer leased the Equipment during Emco’s regular business hours unless otherwise agreed by Emco in writing. During the term of this Agreement, the Equipment shall at all times be kept and used at the location specified on the reverse, and shall not be removed therefrom without the prior written consent of Emco. Emco may apply the security deposit to satisfy any unpaid rental charges or any other amounts for which the Customer is responsible. The remaining security deposit will be returned to the Customer promptly upon the return of the Equipment in good condition as per the terms of this Agreement.
PAYMENT: Rental payments under this Agreement shall be paid in advance and the initial payment shall be charged on Customer’s account before delivery of the Equipment to the Customer or its employee, agent or carrier. Payments shall be made in full with no reductions or set-offs for any reason. Compounded interest is charged on all overdue accounts at a rate of 2% per month or 26.8% per annum. All discrepancies must be reported in writing within 48 hours of receipt of Equipment.
DEFAULT: If Customer fails to make any rental or other payment required hereunder when due or if Customer transfers, disposes of, conceals, abandons or loses possession of any of the Equipment or if Customer otherwise breaches this Agreement, in addition to any other rights and remedies available to Emco at law or in equity, Emco may at its sole option: (a) enter upon the premises where the Equipment is located and take immediate possession thereof and remove same, without order of the court or liability to Customer by reason such entry and taking of possession, whether for damage to property or otherwise; (b) lease or otherwise dispose of the Equipment for such consideration and upon such terms and conditions as Emco may deem fit; and/or (c) terminate this Agreement and require Customer to pay Emco an amount equal to the damages suffered as a result thereof by Emco.
WARRANTIES: Emco represents that it owns the Equipment. Emco makes no other representations, warranties, guarantees or collateral agreements of any kind or nature, express or implied, as to any other matter whatsoever including, without limitation, as to the design or operation of the Equipment, the fitness of the Equipment for any particular purpose or that the Equipment is free from defects, will perform as specified or is satisfactory for the site conditions, even if Emco has been advised of such operation/purpose/conditions.
MISCELLANEOUS: This Agreement shall be binding on and enure to the benefit of the parties and their respective heirs, executors, successors and permitted assigns. Time is of the essence with respect to this Agreement. This Agreement shall be governed by the laws of the Province of the Emco location which rented the Equipment to the Customer. Customer acknowledges receipt of a copy of this Agreement.