PRODUCT RENTAL AGREEMENT - TERMS & CONDITIONS
These Terms & Conditions (which together with the Furnace, Air Conditioner, Water Heater & Water Filter Rental Agreement Program Details page along with the Pre-Authorized Debit Agreement Application (if applicable) to which they are appended are collectively referred to as this “Agreement” are the full and complete Agreement with the Customer (the “Customer” being the name and signatory on the Rental Agreement Program Details page who is the person entering into this Agreement with DeMark Home Ontario). If more than one person is named on the front of the Customer’s utility bill, the Customer understands that each person shall be deemed the “Customer” and each person has the authority to enter into this Agreement. Each person shall be individually liable, and all of the Customers are collectively jointly and severally liable, for all obligations, liabilities and indebtedness imposed on Customer by this Agreement.
–To: DeMark Home Ontario (“DeMark”) and the Gas Distribution Company (or Companies) for the Service Address (the Customer’s “Utility”)
1. Appointment of Agent
If indicated on the front page of this Agreement, the Customer hereby appoints DeMark to be their agent for Furnace, Air Conditioner (collectively known as “HVAC”), Water Heater (“WH”) and/or Water Filter System (“WFS”) rental supplier for all purposes related to the arrangement of billing to the Customer’s Service Address on this Agreement (“Appointment of Agent”). The Customer’s Utility and all other related third parties are entitled to rely upon all actions taken, or documents signed, by DeMark in connection with or pursuant to this Appointment of Agent as though the Customer had taken such action or signed such document including, without limitation, the negotiation, implementation, operation, performance, amendment and termination of any HVAC, WH and/or WFS rental arrangement. This Appointment of Agent replaces any Appointment of Agent Agreement with any existing HVAC, WH and/or WFS supplier. This Appointment of Agent shall be effective from the date the Customer signs the Agreement and shall continue to be in effect until this Agreement is terminated either by the Customer or DeMark in accordance with the procedures for termination set out in these Terms and Conditions below. DeMark will not be liable for any early cancellation fee as a result of Customer cancelling their existing contract with their current HVAC, WH and/or WFS rental provider.
2. Our Service Commitment to the Customer
i) DeMark’s commitment to the Customer is: to provide the Customer a HVAC, WH and/or WFS, installation of that HVAC, WH and/or WFS and repairs, maintenance and/or replacement of the HVAC, WH and/or WFS due to normal wear and tear as determined by DeMark in the exercise of its reasonable business judgment. Extra service charges may apply in the following circumstances: if repairs or service work become necessary because the HVAC, WH and/or WFS is at any time connected to other equipment at the Service address (the “Premises”); if repairs are necessary because of damage caused by the Customer or a third party, or as a result of use for which the HVAC, WH and/or WFS was not intended; if additional wiring, plumbing, venting or piping is required to meet applicable building codes, regulations or installation requirements. If the Customer cancels an installation appointment within 24 hours of the scheduled appointment date or fails to be present at the scheduled appointment an $85 cancellation fee may apply.
ii) If at any time DeMark deems that the Customer’s HVAC, WH and/or WFS is in need of replacement in consequence of normal wear and tear as referenced in the immediately preceding paragraph, the Customer shall receive a HVAC, WH and/or WFS of comparable size and type at the then current DeMark rental rate for that HVAC, WH and/or WFS. For cancellation policies please see Section 5. An emergency telephone number (1 877 4974937) is available to the Customer 7 days a week, 24 hours a day to handle the dispatching of emergency service requirements.
iii) The Customer has the option to terminate this Agreement (see Section 12) at any time by purchasing their HVAC, WH and/or WFS by paying the applicable purchase amounts (see
Section 11). Should the Customer sell their home, this Agreement is transferable to the purchaser of the Premises.
3. Customer’s Commitment To DeMark
i) DeMark will honour its Service Commitment and, in return, the Customer agrees that: The Customer represents and warrants that they have authority to enter into this Agreement either as the owner of the Premises, spouse of such owner, or because the Customer has been authorized to enter into this Agreement as such owners duly authorized agent. The Customer’s HVAC, WH and/or WFS rental automatically commences the date their HVAC, WH and/or WFS is installed or the Customer’s enrollment in the program is accepted by DeMark , If the Customer has purchased the Premises after the HVAC, WH and/or WFS was installed, the HVAC, WH and/or WFS rental commences on the date of that Customer’s purchase of the Premises.
ii) The Customer may be considered in default under the terms of this Agreement if the Customer fails to make any payment in the full amount and when required to be made under this Agreement. The Consumer’s total monthly cost to rent the HVAC, WH and/or WFS is made of: 1. The monthly rental cost of the HVAC, WH and/or WFS as indicated on the first page of this Agreement, 2. If the Customer has a WH rental, the installation of a mixing valve at an additional $4.99 per month unless such installation is otherwise refused by the Customer. 3. Applicable only to a Conventional Vent WH, the installation of a chimney liner which is $5.99 per month if required, 4. Any monthly rental rate increases (if any), are subject to change in June each calendar year, and shall be limited to the posted Consumer Price Index published annually, and 5. Applicable federal and/or provincial sales taxes. The total rental charge is paid by the Customer on a monthly basis either to DeMark directly or the Customer’s natural gas utility (i.e., Enbridge Gas Distribution). If the customer pays Enbridge Gas Distribution, the total rental charge will appear in the “Other Companies” section of the Customer’s utility bill and Enbridge Gas Distribution payment terms and billing cycle will apply. If the Customer pays DeMark for the total rental charge, payment will be made by pre- authorized payment (“PAP”) through the Customer’s bank account.
iii) For such pre-authorized payment, the Customer expressly authorizes DeMark to have the Customer’s payments deducted from their bank account , the amount of any charges, interest and other amounts due under this Agreement (each being a preauthorized payment or “PAP”). Any overdue payment will be charged at a rate equal to 1.5% per month (or 19.6% per annum), compounded monthly. The Customer will be charged $25 for any PAP that cannot be processed for any reason.
iv) The Customer will not remove the HVAC, WH and/or WFS from the Premises and will maintain it in a safe, dry, heated, unobstructed and accessible location, free of any flammable, hazardous or combustible materials. The Customer will ensure the HVAC, WH and/or WFS is located in an area with sufficient drainage in the vicinity and that the drainage is open and unrestricted and DeMark, therefore, will not be responsible for damage caused if the HVAC, WH and/or WFS or their connections leaks. The Customer will ensure that any identification or labelling is not removed from the HVAC, WH and/or WFS or covered or obstructed in any manner.
v) Except as specifically permitted herein, the Customer will not permit or authorize anyone other than DeMark’s authorized representatives to service, repair, move or, disconnect the HVAC, WH and/or WFS. The Customer will permit DeMark’s authorized agents or employees to have access to the Premises at all reasonable hours for the purposes of installing, servicing or removing the HVAC, WH and/or WFS. If the Customer sells the Premises, the Customer agrees to inform the purchaser that title to the HVAC, WH and/or WFS is owned by DeMark and that the HVAC, WH and/or WFS is being rented by the Customer from DeMark pursuant to this Agreement. The purchaser will assume the Customer’s rights and obligations under this Agreement effective the date of sale. The Customer authorizes DeMark to respond to any information requests relating to their HVAC, WH and/or WFS rental account made by or on behalf of the purchaser.
vi) The Customer agrees that DeMark is the owner of HVAC, WH and/or WFS and that DeMark is not transferring title to the HVAC, WH and/or WFS to the Customer. DeMark may register its interest in the HVAC, WH and/or WFS on title to the Premises. To the extent permitted by law, the Customer hereby waives any right to receive a copy of such registration and appoints DeMark as their agent for the purpose of making and effecting any such registrations. The Customer agrees that the HVAC, WH and/or WFS is and will remain the property of DeMark even though it may become affixed to the Premises. The Customer agrees to keep the HVAC, WH and/or WFS free of all liens, security interests, mortgages and other claims.
vii) The Customer is responsible for maintaining effective operation of any plumbing and pumping systems supplying water to the HVAC, WH and/or WFS during installation, servicing and operation.
4. Termination of the Rental Agreement(s) and Purchase Option by the Customer
The Customer may terminate this Agreement by purchasing the HVAC, WH and/or WFS on an “as is, where is basis”. The Customer may exercise that purchase privilege by providing
DeMark with at least thirty (30) days’ prior written notice of their desire to purchase the HVAC, WH and/or WFS, subject to the balance of any transferable manufacturer’s warranty, and
assuming full responsibility for the rental equipment repair and maintenance. The Customer may exercise that purchase privilege by providing DeMark with at least thirty (30) days’ prior
written notice of their desire to purchase the rental equipment, accompanied by the Customer’s payment of the Buyout and any delinquent payments under or pursuant to the Agreement(s).
If the Customer chooses to purchase the Furnace and/or Air Conditioner inclusive of installation costs, the buyout calculation (‘Buyout”) shall be an amount equal to the then remaining
undepreciated value of the rental equipment, determined by DeMark on a straight-line basis (refer to Section 11).
5. Termination of the Rental Agreement(s) by DeMark
DeMark may terminate this Agreement at any time upon thirty (30) days’ prior notice to the Customer, or without notice if the Customer breaches any term of this Agreement. If DeMark chooses to exercise its right of termination, then, unless otherwise prescribed by applicable law, the Customer may elect in writing to DeMark, to buy the HVAC, WH and/or WFS at the Buyout amount, referenced below, plus all other amounts owing under this Agreement. The Customer must notify DeMark in writing of their election to buyout the HVAC, WH and/or WFS pursuant to Section 10, no later than fifteen (15) days before the date DeMark proposes to terminate this Agreement, then the Customer shall be deemed to have exercised the Buyout and DeMark reserves the right to collect Buyout amounts from them as noted in Section 11. The Customer will pay such charges when billed by DeMark. The Customer will not have to pay DeMark any rental charges for periods after the Customer has purchased the HVAC, WH and/or WFS and has paid DeMark all other amounts owing by them under this Agreement.
6. Equipment Maintenance
If properly maintained, the anticipated useful life of the HVAC and/or WH and/or WFS is beyond (10) years. Should any unreasonable or excessive wear or use of the HVAC, WH and/or WFS be determined, the Customer shall be responsible for repair charges calculated as follows: If wear is identified as i) dented casing - $200 repair charge, ii) If the Customer has a WH rental and has opted for the additional mixing valve, replacement of each damaged valve - $250 repair charge, iii) missing rating plate - $200 repair charge, and iv) other repairs shall be charged to the Customer at DeMark’s cost (not to exceed $500); plus all applicable taxes. The Customer will pay such charges when billed by DeMark. If the Customer is renting a WFS, the Customer understands that subject to the conditions in this paragraph, at any time in the year following the 5th, or 10th, (or any 5-year interval the WFS), including: changing the carbon/KDF filter, cleaning and inspection of the sediment filter, shutoff valve, and other connections, checking of water pressure, and ensuring the unit is operating to manufacturer’s specifications. DeMark will distribute to the Customer on an annual basis, replacement pre-filters. Should the Customer wish to purchase additional filters, they may contact customer service at 1-877-497-4937, to obtain then current filter pricing and shipping charges to their location. The Customer also understands that all installation, maintenance and repairs to the WFS must be performed by a DeMark representative, and that should any other individual attempt to install, remove, modify, repair, or tamper with the WFS, the maintenance inspection obligations above will be void and DeMark may terminate the Agreement and/or charge the costs of any labour and materials related to any repairs, servicing or maintenance required to be carried out, as determined by DeMark. Despite the aforementioned, the Customer understands that it is their responsibility to change the sediment filter (pre-filter) every 6 months. If the Customer has properly maintained the WFS, DeMark will provide unlimited service in accordance with the manufacturer’s specifications. The Customer understands that it is their responsibility to notify DeMark t within Seventy-two (72) hours of any leak or other problem with the HVAC, WH and/or WFS that would require prompt servicing. The Customer understands that DeMark will send a technician to their Residence within a reasonable time frame after being notified of any leak or other problem with the equipment. The Customer agrees to allow DeMark access to their Premises to maintain the HVAC and/or WH and/or WFS.
DeMark is not the manufacturer of the HVAC, WH and/or WFS and DeMark makes no representations, warranties or conditions as to the performance of the HVAC, WH and/or WFS, except for those which are deemed to be given by statute and which the Customer cannot at law waive. DeMark will not be liable for any loss, damage, death or injury of any type (including as a result of any water leakage or electrical or natural gas related events) arising out of or related to this Agreement or caused or contributed to in any way by of the installation, use, maintenance and operation of the HVAC, WH and/or WFS, or any indirect, incidental, or consequential damages or loss of profits, even if reasonably foreseeable. If DeMark is unable to perform any of DeMark ’s obligations under this Agreement because of circumstances or events beyond DeMark’s control, DeMark shall be excused from the performance of such obligations for the duration of such circumstances or events and DeMark shall not be liable to the Customer for such failure to perform. The Customer will indemnify DeMark and hold DeMark harmless from and against any loss or damage by the HVAC, WH and/or WFS for any reason and all claims, losses and costs that DeMark may suffer or incur or may be required to pay, including legal expenses, in connection with this Agreement and the use and operation of the HVAC, WH and/or WFS, including any claims against DeMark for any injury or death to individuals or damage to property. Unless specifically requested, Customer waives the installation of a mixing valve of the water heater and, without limitation to the other provisions of this Agreement, agrees to indemnify and hold DeMark harmless from any liability associated with injury due to water temperature.
8. Privacy/Personal Information
The Customer agrees that DeMark may sell, assign, concurrently lease or otherwise dispose of, or grant a security interest in all or part of DeMark’s right, title and interest in the HVAC, WH and/or WFS or this Agreement to anyone else, without notice to the Customer and without their consent, and upon such assignment, DeMark shall be released of any further obligations hereunder. To the extent not prohibited by law, the Customer waives any claims, defenses, set-offs, deductions or counter-claims against any such assignee, transferee or holder of a security interest, which the Customer may now or in the future be entitled to assert against DeMark. This Agreement is binding upon and will enure to the Customer’s respective heirs, executors, personal and legal representatives, successors and permitted assigns. Except as specifically provided for herein, the Customer may not assign this Agreement without DeMark’s express prior written consent. This Agreement is the entire Agreement between the Customer and DeMark. The Agreement is governed by the laws of the Province of Ontario. Should any of the terms and conditions in this Agreement be held invalid for any reason by a Court or regulatory body of competent jurisdiction, then such terms or conditions shall be deemed severed from this Agreement and the remaining terms and conditions and provisions of this Agreement shall continue in full force and effect.
10. How to Contact DeMark
If the Customer has any questions or concerns about this Agreement they may contact DeMark: (i) by phone: 1-855-998-2998, (ii) by email:
[email protected] or (iv) by mail: attention: Home Services Customer Service, at 1183 Finch Ave West, unit 610, Toronto, M3J2G2
11. Buyout Schedule
Water Filter, Air Conditioner and Furnace:
12. Customer Rights under the Consumer Protection Act, 2002
The Customer may cancel this Agreement at any time during the period that ends seven (7) days after the day the Customer receives a written copy of the Agreement. The Customer does not need to give the supplier a reason for cancelling during this seven (7) day period.
To cancel this Agreement, the Customer must give notice of cancellation to the supplier, at the address set out in the Agreement (see Section 10), by any means that allows the Customer to prove the date on which the Customer gave notice. If no address is set out in the Agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by the Customer.
If the Customer cancels this Agreement, the supplier has fifteen (15) days to refund any payment the Customer has made and return to the Customer all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance).
However, if the Customer cancels this Agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within seven (7) days after the date the Customer receives a written copy of the Agreement, the supplier is entitled to reasonable compensation for the goods and services that the Customer received before the earlier of the 8th day after the date this Agreement was entered into and the date on which the Customer gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier.
If the supplier requests in writing repossession of any goods that came into the Customers possession under the Agreement, the Customer must return the goods to the supplier’s address, or allow one of the following persons to repossess the goods at the Customers address: (1) the supplier; or (2) a person designated in writing by the supplier. If the Customer cancels this Agreement, the Customer must take reasonable care of any goods that came into the Customers possession under the Agreement until one of the following happens: (a) the supplier repossess the goods; or (b) the supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the Agreement was cancelled; or (c) the Customer returns the goods; or (d) the supplier directs the Customer in writing to destroy the goods and the Customer do so in accordance with the supplier’s instruction.