PRODUCT RENTAL AGREEMENT - TERMS & CONDITIONS
1. Interpretation - In this agreement “you”, “your” and “customer” refer to the person renting the Product described above. Where there is more than one person named, the same terms refer to all persons named and all obligations of the persons named below under this agreement shall be joint and several. “Us”, “we”, and “our” refer to Vista Credit Corp. and its authorized personnel, agents, contractors or assigns. In this agreement “Agreement” refers collectively to the “Rental Agreement”, the “Delivery and Acceptance Certificate” (if applicable) and the “Agency Agreement” (if applicable).
2. Legal Compliance and Taxes - You will comply with all laws relating to this Agreement or to the Product including, without limitation, laws relating to use, operation or maintenance of the Product. You shall pay when due all taxes and other charges of any kind whatever now or in the future imposed by any government or public authority or agency (“Taxes”) related to the operation or maintenance of the Product for the Term.
3. Registration Against Security - You hereby grant to us an exclusive security interest in the Product as collateral security for the amounts owing by you to us under this Agreement. The attachment of security interest has not been postponed. You grant us the right to register the security interest under this Agreement against you and title to the lands where the Product is to be located. Unless prohibited by law, you waive your right to receive a copy of such registration where required and you appoint us as your lawful attorney for so doing.
4. Personal Property - You agree that the Product shall remain portable or movable property (without the need for any other party’s consent or waiver to allow us to remove it) even though it may become attached to real or immovable property.
5. Payments - You must make all payments (the “Payments”) required to be made under this Agreement to us in the manner described starting on the Commencement Date (the “Commencement Date”). The Commencement Date shall be the later of (a) the date you receive the Agreement; and (b) the date the Product has been delivered and installed. This Agreement shall be effective as of the Commencement Date. Your obligation to pay when due all amounts under this Agreement shall be absolute and unconditional without any condition, deduction, set-off, abatement, hold back or claim for compensation whatsoever.
FOR BILLING T: 1-877-318-4782 www.vistaservices.ca
6. Additional Charges - The Payment will increase by a maximum of 3.5% annually or the annual percentage increase (as determined by us) in the Consumer Price Index as published by Statistics
Canada, or any successor agency, for the Province on each anniversary of your Commencement Date. Interest at the rate of .0821918% per day, compounded monthly, (34.489% effective annual rate) shall be payable on all unpaid Payments, from their due date until paid. You further agree to pay to us a returned item charge in an amount equal to the greater of $35.00 or the actual bank charges incurred by us plus any other amounts allowed by law, a Notice of Security Interest registration charge of $ 250.00 (if applicable) and an assignment or account closure charge of $ 50.00 (if applicable).
Your first Payment will be debited on the Commencement Date and each month thereafter on the
same date. (See Section 7)
7. Payment Authorization – You agree to make all payments due under this Agreement via Pre- Authorized Payment (“PAP”). The following terms will apply to your PAP: (a) you hereby authorize us to
debit the bank account identified on the cheque or PAD form you delivered to us for all Payments required to be made under this Agreement; (b) you acknowledge that this PAP is personal; (c) the
account will be debited on the same day of each month commencing thirty (30) days from the Commencement Date; (d) this authority shall remain in effect until you give us written notice to cancel it which notice shall be received 30 days before the next scheduled debit at our address on page 1or by email at [email protected]; (e) you have certain recourse rights if any debit does not comply with this paragraph. For example, you have the right to receive reimbursement for any debit that is not authorized or is not consistent with these terms; (f) you can obtain more information about your right to cancel (including a sample cancellation form) and about your recourse rights, from your financial institution or at www.payments.ca; (g) you hereby waive your right to receive pre- notification of the
amount of the PAP and agree that you do not require advance notice of the amount of PAPs before the debit is processed.
8. Option to Purchase – Providing you are not if default, you may elect to purchase the items listed under the Product Description (the “Product”) at any time during the Term on an “as is”, where is basis.To receive your contract purchase price refer to the Buyout Schedule posted on our website (www.vistaservices.ca/buyout). The Term ends at the end of the 144th month or when the equipment is deemed unserviceable by Vista at our sole discretion. If any payment deferrals or postponements were provided, they will be added to the Term. At the expiry of the Term, you may (a) continue to rent the Product on a month to month basis at the then current Payment amount until the end of the useful life of the Product; or (b) return the Product to us; (c) purchase the product for $49.95. If you do not notify us of your intention prior to the expiry of the Term, it will be assumed that you have selected Option ‘a’ and we will continue to bill you at the then current monthly Payment until you notify us otherwise. For greater certainty, you acknowledge that if you continue to rent the Product on a month to month basis, you will do so on the basis that we provide no representations or warranties whatsoever with respect to the Product so that any damage to the Product, or caused by the Product, during such period is entirely at your own risk.
9. Events of Default - Default shall occur upon any of the following events: (a) if you fail to make any Payment, or fail to pay any other amount under this Agreement on its due date; (b) if you remove or attempt to remove the Product from the premises herein described without our consent in writing; (c) if you encumber or transfer ownership or sublet the Product without our consent; (d) if you fail to observe any conditions of this Agreement; (e) if you become subject to a bankruptcy, insolvency, receivership or similar proceeding under the Bankruptcy and Insolvency Act, either voluntarily or involuntarily, or if an encumbrancer takes possession of the Product or a substantial part of your property; (f) if you allow any damage other than that caused by normal wear and tear resulting from proper use of the Product; (g) if you are in default under any other contract, agreement, or obligation, now existing or hereafter entered into with us or any assignee of ours; (h) if any representation or warranty made by you in connection with the entering into of this Agreement is untrue or incorrect; or (i) if you transfer title to the premises herein described without first purchasing the Product, unless we have agreed in writing to the assumption of your obligations under this Agreement by the party acquiring title to the premises.
10. Remedies Upon Default - In the event of Default, we may terminate this Agreement and, in addition to any other right it may have at law or otherwise, may, without notice, do any or all of the following, separately or together, in any order or combination: (a) we may enter wherever the Product is located (or we believe that it is located) and repossess and remove it (if necessary, disconnecting it from any other property) and you waive claims for any damages to property or otherwise arising from such repossession; (b) without terminating or being deemed to have terminated this Agreement, we, upon five (5) days prior written notice to you, may sell or release the Product in such manner and for amounts and upon such terms as we may reasonably determine and may apply the net proceeds against what you owe to us; and/or (c) we may require you to pay immediately on demand damages suffered by us as a result of the termination of this Agreement. These damages will be, as a genuine pre-estimate of liquidated damages for loss of a bargain and not as a penalty, equal to the aggregate of (i) any outstanding Payments owing as at the date of Default, (ii) the remaining Payments due under this Agreement for the balance of the Term following the date of the Default, and (iii) all costs incurred by us, our assignees or agents in enforcing the terms of this Agreement. We agree to remit to you any monies collected by us from you or through our re-marketing efforts, collectively in excess of the aggregate amount of liquidated damages described above, provided that the remittance shall not exceed the amount paid by you under this Section.
11. Damage to Premises - Should the Product be removed by us from the premises herein described due to your Default, we shall not in any way be liable in respect of any damages to your premises resulting from such removal or from any work done in connection with such removal. The customer must ensure that the Product is located in an area with sufficient drainage in the vicinity, and that the drainage is open, unrestricted and effective.
12. Insurance - You will, at your own expense, maintain, in a form acceptable to us, insurance covering the Product. We shall be named as loss payee and the policy shall contain a clause requiring the insurer to give us prior notice of a revision to its provisions or of its cancellation. The total or partial loss of the Product or its use or possession shall not relieve you of your obligations and liabilities under this Agreement.
13. Liability – We are not the manufacturers of this Product and we make no representations, warranties, or conditions as to the performance of the Product except for those given by statute which the Customer cannot waive. We will not be liable for any loss, damage or injury of any type (including as a result of any water leakage) arising out of or related to this Agreement or caused or contributed to in any way by the use and operation of the Product or any indirect, incidental, special or consequential damages, even is reasonably foreseeable. Notwithstanding the foregoing, we warrant that the Product will work for the term of this agreement, subject to any limitations of law or equity. If the Product leaks, discharges water or in any other way damages the Customer’s property; the Customer expressly agrees to pursue a claim on any insurance policy for which the Customer is the beneficiary, and that Vista will only be responsible for the actual amounts of the Customer’s Insurance deductible to a maximum of $1,500.
14. Product Risks - If the Product is lost or damaged beyond repair or is stolen or for any other reason is not available or suitable for return at any time during the term of this Agreement, you will notify us
of that event and, unless we are agreeable to another arrangement, will immediately on demand pay to us the Casualty Value less the amount of any insurance proceeds paid to us as a result of the event. The Casualty Value shall be equal to the total present value of all unpaid and future Payments under this Agreement. The present value will be calculated by discounting at the rate per annum equal to the lesser of (a) a remaining term Government of Canada bond less 3%; or (b) 3%. Upon payment of the Casualty Value, you shall acquire, without recourse or warranty, all of our right, title and interest, if any, in and to such Product. 15. Maintenance of Product - The Customer shall be responsible for the normal care and maintenance of the Product in accordance with manufacturer’s specifications. Failure to provide maintenance may void the warranty and the Customer will be responsible for any costs associated with repairs that result from the lack of maintenance. We may request evidence that the Customer has carried out maintenance on the Product. Warranties will not cover repairs or maintenance required due to water quality such as, but not limited to, hard water, or water pressure issues. Vista maintains the right to inspect the condition and operation of the Product.
16. Assignment - We may assign, at our sole discretion at any time, without the consent of or notice to you, our right, title and interest in this Agreement, Product described herein and in the pre-authorized payment authorization granted by you; for purposes of this section, "we" shall include any assignee ("Assignee"). You hereby consent to the delivery by us to any prospective Assignee of such information concerning you as may be in our possession. If you sell your premises, you will inform the purchaser of the rental of the Product pursuant to this agreement and provided that (i) you inform purchaser that product is rented (ii) purchaser takes assignment of the rental agreement at closing by signing our standard assignment document; (iii) you notify and provide us with the purchaser name, contact info and intended closing date, prior to closing; and (iv) you have paid us all amounts due under the agreement to the closing date, we will release you of your obligations hereunder. You authorize us to provide information related to this agreement and your account to a purchaser or their representative.
17. General Terms and Conditions - You agree that (a) you will provide all necessary further assurances, do all acts and sign all documents as we may require from time to time to give effect to this Agreement and to protect our rights hereunder; (b) a provision of this Agreement which is void or unenforceable in any jurisdiction is, as to that jurisdiction, void only to the extent of such provision and without invalidating the remaining provisions; (c) the captions, titles and section numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of this Agreement or its effect; (d) this Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and laws of Canada applicable therein; (e) time is of the essence of this Agreement; (f) all of our rights are cumulative and not alternative and may be exercised by us separately or together in any order or combination; (g) ownership of and title to the Product will at all times (except upon a sale hereunder) remain with us; (h) you have no interest in the Product, other than the right to possess, insure and use the Product for the Term;(i) information requests by any person(s) other than you shall be verified and subject to administration charges as set from time to time by us; and (j) we will retain a copy of this Agreement in electronic form only. You agree that a facsimile and/or imaged copy is enforceable in a court of law.
18. Location, Condition and Operation of the Product - You agree to keep the Product at the above address and to allow us reasonable access and the right to inspect the Product. You agree to keep the Product free and clear of all liens and encumbrances of every kind and to keep the Product in as good a condition as when delivered, reasonable wear and tear accepted. You shall not make any alterations to the Product without our prior written consent. Any additions, upgrades, accessories, alterations or replacements to or for the Product will become our property and subject to the terms of this Agreement. You will operate the Product at your own risk. You agree to indemnify and save us harmless from any claims and damages suffered by us, however caused, arising out of the use of the Product. This indemnification will survive termination of this Agreement. During the Term of this agreement, we shall provide you a parts and labour warranty to keep the Product operational. You agree to locate the Product in an area with sufficient and proper drainage to deal with any leak emanating from the Product and to keep such drainage open and unrestricted failing which this warranty shall be null and void.