Rental and Services Contract Terms and Conditions
BOXX Modular will lease the equipment, including one or more modular structures identified on the Cover Page (the “Structure”), together with any Carry-On Options and Ancillary Equipment identified on the Cover Page, and all other contents and furnishings (collectively, “Equipment”) and provide Transportation Services, Installation Services, Dismantle Services or other services, if any, (collectively, the “Services”), to Customer for the Minimum Commitment and any Holdover (collectively, the “Term”) at the Site, in accordance with the attached Terms and Conditions. The Cover Page sets out the meaning for capitalized terms not defined in these Terms and Conditions.
1. PRICE: Customer must pay BOXX Modular the Rent, other charges set out in this Contract and taxes.
2. PAYMENT: Unless stated otherwise on the Cover Page, Customer must pay BOXX Modular: (i) the Rent each month during the Term and all other invoiced amounts within 30 days of the date of the invoice; (ii) interest at the rate of 1.5% per month (18% per year) on overdue amounts until paid; and (iii) all costs incurred by BOXX Modular in collecting overdue accounts and repossessing Equipment.
(a) Title: BOXX Modular will remain the owner of Equipment. This Contract is not a financing arrangement, and does not give Customer any ownership, rights in Equipment. BOXX Modular may register a security interest under any applicable laws, and Customer waives any right to receive any related statements or notices from BOXX Modular. Equipment is personal property and is not intended to be or become a fixture. If Site is located on lands not owned by Customer, Customer must obtain an undertaking from the owner of the lands that Equipment will not be deemed a fixture and may be removed without notice at any time.
(b) Care, Custody and Control: Care, custody and control of Equipment will pass to Customer on “Delivery” which is the later of the date on which (i) Equipment is delivered to Site or (ii) the Installation Services, if any, are substantially complete. During the Term, Customer: (i) must retain care, custody and control of Equipment and keep it on Site; (ii) bears all risk of loss or damage to Equipment; and (iii) must not sub-rent or allow third parties to use Equipment. Customer grants BOXX Modular a license to enter Site to inspect Equipment and to effect its remedies under Section 9(a).
(c) Permits: Customer must have all necessary licenses and permits, and pay all third party costs, charges, and taxes for the use of Equipment or related to Services, including tolls, ferry/tunnel charges, permissions and inspections. Any amounts for any such licenses, permits, costs, charges or taxes paid by BOXX Modular will be invoiced to Customer.
(d) Maintenance and Care of Equipment: Unless Customer has agreed to a Maintenance Plan, Customer must maintain Equipment (normal wear excepted) by (i) replacing/cleaning air filters; (ii) cleaning fan blower wheels and motors of dust/debris; (iii) inspecting belt driven exhaust fans for belt wear; (iv) inspecting furnaces, hot water heaters, appliances, air units and systems and other similar equipment monthly; (v) inspecting smoke/heat detectors; and (vi) promptly reporting to BOXX Modular any issues detected. No other alterations are permitted to Equipment. Customer must not add or change any signage. Customer is responsible for any damage resulting from accident, modification, misuse, abuse, neglect, unauthorized repairs/alterations, lack of or improper maintenance, fire, weather or other natural causes (collectively “Damage”) to Equipment.
(e) Return of Equipment: Customer must clean, winterize and return Equipment at end of the Term in the same condition Equipment was in at Delivery, normal wear excepted. BOXX Modular’s costs to do any of the above, to repair any Damage to Equipment, and to return Equipment to the condition it was in at Delivery (normal wear excepted), will be invoiced to Customer.
(f) Holdover: If Customer does not return Equipment at end of Minimum Commitment, Customer will continue to rent Equipment until returned (“Holdover”), and BOXX Modular may increase Rent on 30 days’ notice. After the Minimum Commitment, Customer must provide BOXX Modular with a minimum of 30 days’ notice prior to the return of any Equipment.
(a) Warranty: BOXX Modular provides only the following "Warranty":
|Warranty Period from Delivery
|Free from defects in workmanship and materials
|Carry-on Options (if new)
|Original manufacturer's warranty
|Original manufacturer's warranty
Ancillary Equipment with manufacturer cost >$500 (if new)
|Original manufacturer's warranty
|Original manufacturer's warranty
(b) Limitations: Warranty is subject to the following limitations:
(i) BOXX Modular will, acting reasonably, make all decisions regarding the Warranty, including validity, applicability and appropriate remedies;
(ii) Warranty will not be valid unless Customer (i) notifies BOXX Modular within 5 days of noticing any issues with Equipment that may be covered by Warranty; and (ii) maintains Equipment as described in Section 3(d). Warranty will not be valid if Equipment was subject to Damage. Unless visually obvious and noted on bill of lading presented at the time of Delivery, BOXX Modular does not warrant that Equipment is at that time or will be during the Term, free from mold, bacteria, fungus or other biological contaminants (“Biological Contaminants”).
(iii) Warranty is limited to supply of parts and non-union labour to remedy defective components, and all other expenses associated with Warranty work, including freight, travel expense, room and board and overhead must be paid by Customer. BOXX Modular is not responsible for any actions, injuries, claims, liabilities, losses, damages, demands, penalties, fines, expenses (including legal expenses), costs, obligations and causes of action of any kind and nature whatsoever (“Claims”) arising from defects except as set out in this Section 4(b)(iii).
(i) Regardless of whether Customer has property coverage on the Structure as set out in Section 5(a)(iii). Customer must at all times during the Term have commercial general liability insurance with coverage of not less than $2,000,000 per occurrence. Such insurance policy must be primary and non-contributory; and name Black Diamond Group Limited as additional insured.
(ii) Subject to Customer’s participation in the Structure Protection Plan set out in Section 5(a)(iii), Customer must at all times during the Term have property insurance in place that covers the Structure at the full replacement value, against loss or damage from all perils, regardless of the cause, including negligence. Such policy must name Black Diamond Group Limited as loss payee and must not contain penalty clauses or co-insurance, but if it does, specifically state that they will not be prejudicial to full reimbursement to Black Diamond Group Limited. If the insurance proceeds are less than the full replacement value, Customer must pay the difference to Black Diamond Group Limited.
(iii) If the Customer elects to participate in the Structure Protection Plan, or if Customer fails to provide BOXX with evidence of property insurance as set out in Section 5(a)(ii) prior to delivery, BOXX will charge the Customer the monthly Structure Protection Plan Fee set out on the Cover Page as a substitute for the property insurance required under Section 5(a)(ii). The Structure Protection Plan will cover the Structure from significant damage or a complete loss resulting from an insurable event while the Structure is in the care, custody and control of the Customer. Customer is responsible for any deductibles payable under the Structure Protection Plan and remains liable for any damage to the Structure (and the Equipment) that may occur and is not covered by the Structure Protection Plan. Additional details may be found in the attached letter describing the Structure Protection Plan, which is incorporated into and forms a part of these Terms and Conditions.
(b) Other Insurance Requirements: Customer must ensure that: each insurance policy contains a waiver of subrogation in favour of Black Diamond Group Limited, the insurer has a rating of no less than A- by the A.M. Best Rating Guide, and the insurer agrees to give BOXX Modular at least 30 days' prior written notice of cancellation of or changes to the insurance policy. Customer must provide BOXX Modular with applicable certificate(s) of insurance prior to Delivery. Customer is responsible for payment of any insurance policy premiums and deductibles.
(a) Site Access: Customer must provide BOXX Modular with reliable and accurate information regarding transportation, Site conditions and access at least 10 business days prior to the date Equipment is to be transported to Site.
(b) Transportation Damage: BOXX Modular is not responsible for any loss or damage to Equipment during transportation, unless such loss or damage is noted on the bill of lading presented at the time of Delivery.
(c) Site: Customer must ensure the Site is clear, level, able to bear the weight of the Equipment, and there must be a clear, flat working area that is 60 feet wider than the Module on each side. Customer must arrange for connection and disconnection of sewer, electric and water utilities and fuel sources. Failure to meet the above requirements will void any Warranty or maintenance obligations BOXX Modular may have, Equipment may not be installed or removed, there may be additional charges and Customer will be responsible for any delays.
(d) Extra Services: BOXX Modular may, at its discretion, perform any obligation of Customer, which Customer has failed to perform, perform additional services at the request of Customer, or as required to provide the requested Equipment and Services if information provided by Customer is incomplete or inaccurate (collectively “Extra Services”). At BOXX Modular’s option, the charges for the Extra Services will be calculated by BOXX Modular in its sole discretion based on (i) a lump sum fee, or (ii) its time and materials cost, plus an applicable percentage mutually agreed upon by the parties.
(e) Delays: If Equipment off/on-loading or performance of Services is delayed due to transportation delays, Site access conditions, Customer not fulfilling its obligations under this Contract or any delay caused by Customer, Customer will pay Rent and be invoiced for charges resulting from the delay at BOXX Modular’s cost plus 15%.
7. INDEMNITY AND LIMITATION ON DAMAGES:
(a) Indemnity: Except to the extent caused by BOXX Modular’s negligence or willful misconduct in performing Services or BOXX Modular’s breach of this Contract, Customer will be liable for and will indemnify BOXX Modular, its affiliated entities, and each of their respective directors, officers, employees, agents and contractors (the “BOXX Modular Parties”) against any Claims suffered by BOXX Modular Parties which: (i) are caused by Customer’s negligence, willful misconduct or breach of this Contract; (ii) relate to or arise during Customer's care, custody and control of Equipment; or (iii) relate to or arise from Biological Contaminants.
(b) Limitation on Liability: Except for third party indemnification Claims or the Termination Fee, no party will be liable to the other party or obligated to indemnify the other party for exemplary, special, incidental, indirect, consequential or punitive damages or damages relating to loss of goodwill, use, revenue, profit or opportunity. BOXX Modular’s maximum liability to Customer for any Claim in relation to this Contract may not exceed an amount equal to the total Rent during the Minimum Commitment.
8. FORCE MAJEURE: BOXX Modular will not be in default of the performance of any of its obligations under this Contract if it is prevented from doing so due to an event beyond its reasonable control, but only to the extent and for the time period that performance of such obligation is so prevented.
(a) Termination for Cause – BOXX Modular: BOXX Modular may immediately terminate this Contract upon notice to Customer if Customer: breaches a material term of this Contract, including failing to make payments when due or is in breach of any other agreement with BOXX Modular, and fails to remedy the breach within 10 days of notice from BOXX Modular. If BOXX Modular terminates this Contract, Customer must pay BOXX Modular an amount equal to: (A) the Rent that Customer is obligated to pay BOXX Modular from the date of termination until the end of the Minimum Commitment, plus (B) the charge for the removal and transportation of Equipment back to BOXX Modular(collectively, the “Termination Fee”), which fee is a genuine estimate of the damages BOXX Modular would have suffered as a result of Customer’s default and is not a penalty. Customer must also pay any costs incurred by BOXX Modular under Section 3(d). Within 3 days of BOXX Modular’s termination of this Contract, Customer must make arrangements and cooperate with BOXX Modular for the return of Equipment, failing which BOXX Modular may enter Site and retake possession of Equipment without further notice. Notwithstanding such repossession, Customer will be liable for and indemnify BOXX Modular against all costs incurred by BOXX Modular relating to the repossession of Equipment and collection of amounts owing. BOXX Modular will not be responsible for any damage arising from the repossession of Equipment, unless arising from BOXX Modular’s gross negligence, or for any personal property in or attached to the Equipment.
(b) Termination for Cause – Customer: Customer may immediately terminate this Contract upon notice to BOXX Modular if: BOXX Modular breaches any material provision of this Contract, and fails to remedy the breach within 10 days of notice from Customer.
(c) Termination – Holdover: Either party may terminate this Contract during a Holdover for any reason by providing the other party with 30 days' notice.
10. GENERAL: Every notice to be given under this Contract must be in writing and sent to the other party's Address for Notices set out in Cover Page. A party may change its Address for Notices by providing notice. This Contract will be governed and construed under and in accordance with the law where Site is located without regard to conflict of law principles. Each party submits itself to the jurisdiction of the courts where Site is located. During the Term, each party must comply with all laws that apply to such party's performance, or are necessary for the other party's performance under this Contract. This Contract constitutes the entire agreement between the parties pertaining to the rental of Equipment and provision of Services. No modification or waiver of this Contract in whole or in part is binding unless it is in writing and duly executed by each party. No waiver of any provision in this Contract will constitute a waiver of any other provision, whether similar or not, or constitute a continuing waiver unless otherwise expressly provided. BOXX Modular may assign this Contract in whole or in part upon notice to Customer. Customer must not assign this Contract. If Customer sends BOXX Modular a purchase order in respect of the Services or rental of Equipment, then that purchase order will be used to assist Customer in its internal accounting only and any terms or conditions contained in such purchase order will have no effect whatsoever on this Contract. Where a conflict exists between the Terms and Conditions and Cover Page, the provisions of the Terms and Conditions will take precedence. If any provision of this Contract is determined to be invalid, illegal or unenforceable in whole or in part, such invalidity, illegality or unenforceability will attach only to such provision and all other provisions in this Contract will continue in full force and effect. Sections 1, 2, 3, 6, 7, 9(a) and 10 will survive the termination of this Contract and continue in full force and effect for the benefit of, and will be binding upon, the parties. This Contract may be executed by the parties using electronic copies in separate counterparts each of which when so executed and delivered will constitute one and the same document.
11. PUBLIC REFERENCE: Neither party shall use the other party’s legal name, trade name, brand, or trademark in any (i) advertising; (ii) promotional, marketing or publicity materials; (iii) website; or, (iv) any similar fashion without the prior written consent of the other party.
Short Form Equipment Rental and Services Agmt (BOXX) Version (Sept 2018).docx
Structure Protection Plan
To Whom It May Concern:
This letter is written as a summary of insurance providing some details in what our Structure Protection Plan (the “Plan”) includes in the way of coverage. It is not meant to take the place of an insurance certificate or policy nor is it an inclusive document detailing our entire coverage, exclusions, limits or other insurance details. It is meant as a summary description only, to the basic coverages you receive when you take advantage of our Plan. What the purchaser of our Plan receives is as follows:
Rented Asset Coverage
Provides coverage for significant damage to, or complete loss of our modular structures resulting from an insurable event while the asset(s) are under the care, custody and control of the Customer.
- Policy limit for each rental unit $250,000 (Note 1)
- Policy limit per occurrence $1,000,000 (Note 2)
- Deductible 15% of the insured value
Customer is responsible for payment of the deductible in the case of any claim for damage or loss.
IMPORTANT - Customer of this Plan continues to be responsible for the procurement and evidence of any required insurance relating to Commercial General Liability, Non-Owned Automobile Coverage or any other forms of coverage other than the above-mentioned Rented Asset Coverage. Customer is also responsible for contents of the rented modular structure(s) and any equipment inside the rented modular structure(s).
This notice is issued as a matter of information only and confers no rights to the Customer and imposes no liability on the owner.
Note 1 – For purposes of rentals of Complexes, each unit separately identified in the rental contract will be considered an individual rental unit.
Note 2 – While each unit is subject to a maximum coverage of $250,000, a complex rental will be subject to a maximum coverage of $1,000,000 for the total complex.