Chef Choice Equipment Rentals Inc.
Rental Agreement A
TERMS & CONDITIONS
Capitalized words not defined below refer to terms appearing above. “You/you”, “Your/your” includes each Customer(s) and Guarantor(s) that will enter into this Rental Agreement as a Customer or Guarantee including all applicable aliases. “Chef Choice” refers to Chef Choice Equipment Rentals Inc. The words Rental Agreement refers to this Agreement. Whenever the context so requires, the singular shall include the plural and vice versa. Upon signing this Agreement, you agree to all of the terms and conditions herein.
Notice: This is a non-cancelable, binding Agreement. It contains important legal and financial terms and conditions. Please read all pages carefully, including all attached schedules. Feel free to ask questions and seek legal and/or financial counsel before signing.
- Service Provider. You acknowledge that in addition to renting the equipment described in the attached schedule (collectively the “Equipment”) from Chef Choice, you may be obtaining software, service support (collectively the “Service”) from a service provider, who has been chosen solely by you. You acknowledge that the Service is being provided by an independent service provider and not Chef Choice, with all applicable terms and conditions with respect to the Service being governed by whatever agreement(s) you have with the service provider, including the relevant costs, charges, fees and length of term pertaining to the Service (collectively the “Service Fee”). All issues, questions, obligations and liability in relation to the Service and Service Fee are between you and the service provider, and are to be directed by you to them. You acknowledge that the name ‘branded’ at the top of the first page of the Agreement may be that of the vendor, service provider or any combination thereof and not necessarily that of Chef Choice. Regardless of same, you understand and acknowledge that these parties are independent and arm’s-length from Chef Choice which is the Lessor.
- Consideration. You selected the Equipment and vendor, and instructed Chef Choice to purchase the Equipment, which includes all affixed parts and accessories, for the purpose of renting it to you on the terms described herein. You are renting the Equipment “as is”. You may not cancel this Agreement for any reason, including but not limited to, Equipment failure, loss or damage, or any deficiency or issue with respect to the Equipment or Service.
- Pre-Authorized Payment Plan (“PAD”). You authorize Chef Choice to draw payments periodically under a pre-authorized payment plan from your bank account to cover the Payment Amount(s) and other amounts due under this Agreement. Prior to commencement of this Agreement, you shall provide Chef Choice with a void cheque for the purposes of the pre-authorized payment plan. Additionally, you will advise Chef Choice on an immediate and ongoing basis of any changes to your bank account for the purposes of the pre-authorized payment plan. You may revoke your authorization at any time in writing, but only upon: (1) at least thirty (30) days advance notice to Chef Choice; and (2) upon making alternative payment arrangements of your obligations hereunder in a manner satisfactory to Chef Choice in the Chef Choice’s sole and absolute discretion. You have certain recourse rights if any debit does not comply with this PAD agreement. For example, you have the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD agreement. To obtain: (1) more information on your recourse rights; (2) a sample cancellation form; or (3) for more information on your right to cancel this PAD agreement; you may contact your financial institution or visit www.payments.ca
- Title. Chef Choice is the owner of the Equipment. Title to the Equipment shall at all times remain with Chef Choice. You shall have no right, title or interest in the Equipment except as contained in this Agreement.
- Transfer and Assignment. You will not transfer, sell, sublease, assign, pledge or encumber either the Equipment or any rights under this Agreement, whether directly, by change of ownership of your shares or otherwise, without Chef Choice’s prior written consent. Any such consent is in the sole and absolute discretion of Chef Choice. If Chef Choice consents, Chef Choice may charge a fee, in an amount as determined in Chef Choice’s sole and absolute discretion. The fee to be charged by Chef Choice will be deemed reasonable. Chef Choice may sell, assign, or transfer its rights and interests under the Agreement, without notice, with the assignee having the same rights and benefits Chef Choice now enjoys. The rights of the assignee will not be subject to any claims, defenses or set offs that the Customer may have specifically against Chef Choice.
- Representations and Warranties. You acknowledge that: (1) you alone have full knowledge of the Equipment and its condition; and (2) that Chef Choice has had no part in the selection of the Equipment nor had the opportunity to inspect the Equipment. Except as hereafter set forth, you agree there are no representations, warranties or conditions (express, implied, statutory or otherwise) whatsoever from Chef Choice with respect to the Equipment, including, without limitation, as to its condition, merchantability, design, capabilities, operation, use, quality or fitness for any particular purpose. To the extent that they are assignable, Chef Choice assigns to you, without recourse as against Chef Choice, all warranties from the Vendor in respect of the Equipment. Chef Choice is not responsible for Equipment failure or the Vendor’s acts, or for any service, repairs or installation. Chef Choice is not liable for any loss, expense or damage of any kind whatsoever caused, directly or indirectly, by the Equipment or Service, or their use, operation, ownership, any loss of business or other damage(s) whatsoever and howsoever caused.
- Business Purposes and Equipment Location. You agree that the Equipment will be used for commercial purposes only and not personal, family or household purposes and accordingly will not be subject to or interpreted in accordance with any consumer protection laws. You may not move the Equipment from the address indicated above, or alter the Equipment, without Chef Choice’s prior written consent. Such removal or alteration without consent shall be deemed a default of this Agreement.
- Payment Frequency. Rental payments will be collected weekly, unless otherwise approved by Chef Choice and described in this Agreement.
- Security Deposit. Chef Choice may apply the Security Deposit as it wishes, at any time, to any amounts due under this Agreement if not paid by Customer. Customer will not earn any interest on the Security Deposit. At termination date of this Agreement, the Security Deposit, net of all arrears or payments due, will be refunded to Customer. In the event of default, customer forfeits any rights or claims to the Security Deposit.
- Minimum Term, Early Buyout and Buyout Rebate. The customer is obligated to: (1) make at least the minimum number of payments described in the Agreement or (2) buyout the Equipment. In the event of a buyout, sixty percent (60%) of every regular rental payment, before taxes, collected by Chef Choice can be applied as a buyout rebate. The buyout rebate will be deducted from the original purchase price of the equipment to calculate the current buyout amount. The customer will pay all required sales tax in addition to the buyout amount.
- After Minimum Term. When the customer has completed the minimum term described in the contract, the customer has the option to: (1) continue renting the Equipment according to the terms and conditions described in this Agreement or (2) execute a buyout by applying the buyout rebate against the original purchase price or (3) apply for a credit approval to convert the Agreement into a long-term lease agreement or (4) return the Equipment to Chef .
- End of Agreement, Termination and/or Equipment Return. Upon expiration of the Term, in the event of voluntary surrender, or default of this Agreement, you shall deliver the Equipment to Chef Choice or a party designated by Chef Choice, at your expense, in good working order and repair. If the Equipment when returned by you or recovered by Chef Choice, is not in good condition or repair, Chef Choice may, at your expense, payable on demand as additional amounts owed under this Agreement, make all repairs and replacements necessary to put such Equipment in as good condition as at the commencement of the Term, reasonable wear and tear excluded. However, assuming the Agreement is in good standing, Chef Choice may, in its sole and absolute discretion, extend to you, in writing, an option to purchase the Equipment for a specified price (the “Purchase Option”), plus a selling fee of $150.00 plus applicable taxes upon expiration of the Term or as otherwise indicated in writing. If you do not return the Equipment or exercise any applicable Purchase Option, then this Agreement shall continue to be in force, until either the Equipment is returned or an applicable Purchase Option is exercised. All other terms and conditions contained in this Agreement will remain unchanged.
- Rental Payment and Charges. You agree to rent the Equipment from Chef Choice during the Term for the number of payments and for the amounts specified herein, and under the terms and conditions set out herein as well as any schedule hereto (collectively, the “Payments”). You acknowledge that the Payments are rental payments for the use of the Equipment, and not payments of principal and interest. The Payments include a return on investment to Chef Choice and therefore the total payments are greater than the purchase price of the Equipment. You also agree to pay Chef Choice an initial administration fee of up to $500.00. Your receipt of an invoice is not a condition of your obligation to pay the Payments or other amounts owing under this Agreement, when due. When a Payment or other amount is not paid when due, you agree to pay interest on the overdue amount(s) at the rate of 26.82% per annum, on such amount(s), calculated and compounded at the rate of 2% per month, compounded monthly. You also agree to pay Chef Choice a returned payment charge of up to $75.00 for each dishonored payment. You agree to indemnify Chef Choice against any costs, expenses, fees, charges, taxes and claims (including legal costs on a full indemnity basis) which Chef Choice may incur or become liable for in connection with your possession, maintenance, use or operation of the Equipment or the Agreement, without set-off, reduction or abatement.
- Taxes. You will be responsible for, and pay, all taxes and charges (Federal, Provincial, Territorial, Municipal, or otherwise) incurred by you or Chef Choice which may now or hereafter be payable with respect to this Agreement.
- Equipment Maintenance. At your own expense, you will maintain the Equipment in good working condition; furnish parts, repair and obtain other services necessary for such purpose, as set out in the owner’s manual in accordance with the manufacturer’s suggested maintenance schedule. Only certified technicians will be allowed to repair the Equipment. Chef Choice, or a party designated by Chef Choice, shall, at all reasonable times, have access to the Equipment for the purpose of inspecting it. You may, from time to time, add parts or accessories to the Equipment only if such addition does not impair the value or utility of the Equipment or affect any warranty, and only upon receiving written permission from Chef Choice. All replacement parts and accessories shall immediately upon attachment to the Equipment become the property of Chef Choice. Chef Choice may, in its sole discretion, but is under no obligation, to arrange and pay for all repairs and replacements necessary to maintain the Equipment in good repair. Any costs incurred by Chef Choice relating to the Equipment shall be immediately due and payable to Chef Choice by you and shall form part of the outstanding balance of the Agreement.
- Insurance. You are responsible for the risk of loss or damage to the Equipment. You agree to: (1) keep the Equipment insured against all risks of loss in an amount at least equal to its replacement cost, with a maximum deductible of $1,000; (2) list Chef Choice as sole loss payee and additional insured; and (3) give Chef Choice written proof of the applicable insurance. Evidence of renewal of the expiring policy must be delivered to Chef Choice at least thirty (30) days prior to the expiration date. If you do not give Chef Choice such proof, Chef Choice shall have the right, but not the obligation, to obtain insurance at your expense. Proceeds of insurance may be applied as Chef Choice deems fit, including toward payment of your obligations hereunder. You agree to notify Chef Choice forthwith of any loss or damage to the Equipment. You will, at your own expense, complete all proofs of loss and take all other steps necessary to assist Chef Choice with recovering insurance proceeds. If the Equipment should be damaged but is capable of being repaired and the proceeds are insufficient to pay the cost of the repair, you accept that the Equipment will be repaired or replaced and you will be responsible and pay any and all shortfalls between the insurance proceeds and the repair or replacement costs. Where the Equipment is to be repaired, you agree that Chef Choice shall not be required to provide you with replacement equipment in the interim, but you shall continue to pay the Payments for the Term, uninterrupted. Where the Equipment is lost, stolen, destroyed or otherwise unavailable to the Customer or, in the opinion of the insurer, the Equipment is damaged beyond repair, you agree to continue to pay the Payments for the Term until a complete and full satisfaction, as determined by Chef Choice, in its sole and absolute discretion, is received by Chef Choice from the insurer and/or you. Performance by Chef Choice under this section will not affect or release your obligations and liabilities. Any shortfall resulting from an insurance indemnity and any expenses incurred by Chef Choice under this Agreement shall be paid by you on demand. You authorize Chef Choice to settle on your behalf any insurance claim and to complete any proof of loss or related documents in your name. You further assign to Chef Choice any benefits from a premium reimbursement or an insurance indemnity and you further authorize Chef Choice to endorse your name on any cheque made payable to you.
- Default. You are in default under this Agreement if: (1) you fail to pay any Payment or any other amount under this Agreement when due; (2) you default under any other rental agreement or agreement between you and Chef Choice or under the terms of any other indebtedness; (3) any representation or warranty which you make in obtaining or performing the Agreement, is or becomes untrue; (4) you fail to provide adequate insurance as detailed in the “Insurance” clause herein; (5) any of the Equipment is lost, stolen, damaged or destroyed and such loss, etc., is not covered by insurance; (6) as contemplated in the “Insurance” clause herein, the Equipment is damaged beyond repair; (7) you make any assignment for the benefit of your creditors, become insolvent, commit an act of bankruptcy, cease or threaten to cease to do business as a going concern or seek any arrangement or composition with your creditors; (8) any proceeding in bankruptcy, receivership, liquidation, or insolvency is commenced against you or your property; (9) Chef Choice, in good faith, believes that the prospect of payment under this Agreement is impaired; (10) Chef Choice, in good faith, believes the Equipment, or the business premises at which the Equipment is located, is in jeopardy or otherwise at risk; or (11) you fail to comply with any other provision(s) of this Agreement.
- Remedies. If you are in default under this Agreement: (1) all Payments, reduced by a net present value discount of 2% per annum, and other amounts due to the end of the Term shall immediately and without notice become due and payable; (2) you will immediately return all Equipment to Chef Choice in good working order, at your cost, in a manner and to a location designated by Chef Choice; (3) Chef Choice may, without notice and with or without resort to legal process, take immediate possession of the Equipment; (4) Chef Choice may, without notice and without court order, enter the premises where the Equipment is located for the purposes of repossessing the Equipment; (5) Chef Choice is entitled to sell, rent or otherwise dispose of the Equipment on such terms as Chef Choice deems fit; (6) Chef Choice may make any software used on the Equipment inoperative; (7) the Customer hereby irrevocably grants Chef Choice the right to sign a voluntary consent and order for the surrender and sale of the Equipment on Customer’s behalf; and (8) Choice is entitled to any other remedies available at law, in equity, by statute or otherwise. Chef Choice’s remedies shall be cumulative and not alternative. You shall pay Chef Choice all costs of repossession of the Equipment and of enforcement of all Chef Choice’s rights, including without limitation, legal costs on a full indemnity basis. You shall have no recourse or claim for damages as against Chef Choice whatsoever in respect of Chef Choice exercising any of its rights and remedies within this Agreement.
- Cross-Collateral Default. A default under this Agreement shall be deemed and trigger a default under any other agreement(s) between Chef Choice (whether Chef Choice is original funder or assignee) and any or all Customers that are a party to this Agreement. Chef Choice may elect, in its sole discretion, to forebear enforcement on any other agreement, but in so doing, Chef Choice shall not be deemed to have waived its rights under this section. Chef Choice, for the purposes of this section only, shall be defined to include associated companies.
- Additional Collateral Security. As general and continuing collateral security for the payment and performance of all of your present and future debts, obligations and liabilities to Chef Choice, from time to time, you hereby grant a continuing security interest in, and charge all of your right, title and interest in and to all present and future equipment, vehicles and other assets with regard to which Chef Choice has provided or may provide any value (including without restriction, for acquisition, Rental, Lease, use, operation or otherwise) together with all proceeds thereof of whatever nature and kind howsoever arising, for all debts, obligations and liabilities owed to Chef Choice running concurrently with this Agreement. If the Equipment was located in Quebec at Agreement inception, you hereby hypothecate to and in favor of Chef Choice, the universality of your movable property, accounts receivable, tangible and intangible, present and future, wherever situated, in an amount equal to $25,000.
- Governing Law. This Agreement shall be interpreted and enforced, at the sole option of Chef Choice, in accordance with the laws of the Province in which the Equipment is located at the commencement of the Agreement, where located upon default in the Agreement, or, the Province of Ontario and the Customer attorneys to the jurisdiction of such court as Chef Choice selects. You waive the provisions of The Limitations of Civil Rights Act (Saskatchewan). You agree that in enforcing Chef Choice’s rights under this Agreement, Chef Choice is not restricted to fees set out in the Distress Act (Manitoba). To the extent permitted by law, you waive your rights, benefits and protection given by the Judicature Act (Alberta). To the extent possible, you waive the right to receive any financing statement, financing change statement or other filings made by Chef Choice with respect to this Agreement. If the Equipment was located in Quebec at Agreement inception, this Agreement shall be construed as a leasing contract in accordance with Section 1842 of the CCQ.
- Joint and several obligation. If more than one lessee has signed this Agreement, you recognize that you are all jointly and severally (solidarily in the Province of Quebec) liable towards Chef Choice relating to the performance of all of your obligations stipulated in this Agreement.
- Miscellaneous. You have expressively requested that this Agreement and its related documents be drafted in the English language. Vous avec expressément convenu que la présente entente et les documents y ayant trait soient redigés en langue anglaise. In the event that any provisions of this Agreement are invalid, illegal or unenforceable, it shall not affect the validity, legality or enforceability of any other provision of this Agreement or the Agreement as a whole. You agree to execute such further documents as Chef Choice may require, to give effect to this Agreement. This Agreement, including any amendment, addition or schedule hereto constitutes the entire agreement between you and Chef Choice for this Agreement. Any amendment, addition or schedule to this Agreement must be in writing and signed by the applicable party/parties. Any waiver of a right under this Agreement must be in writing. Any notice shall be in writing and shall be deemed to be received when actually received or five (5) business days after mailing to the address set out in the Agreement or any other address communicated in writing by one party to the other. Even though previously signed by you, Chef Choice is authorized to: (1) complete or correct this Agreement by the insertion or correction of your name(s), serial number(s), make/model number(s) and/or identifying references to the Equipment; and (2) make adjustment and/or corrections deemed by Chef Choice to be clerical in nature. Clerical errors shall not affect the validity of this Agreement, and Chef Choice shall be entitled to unilaterally correct same.
- Fax/Electronic Copy and Counterparts. This Agreement and any ancillary documents hereto may be signed in counterparts, each of which shall be deemed to be an original and which together shall constitute one and the same document. A fax, scan, DocuSign, Adobe Sign or other electronically transmitted copies of the Agreement, and any ancillary documents, and the signatures therein, or any counterpart thereof, shall be sufficient for contractual purposes, with the fax, scan, DocuSign, Adobe Sign or other electronically transmitted versions being deemed to be an original. Notices and other documents required by law may also be sent by Chef Choice electronically or by fax, with the documents being deemed received on the same day of the transmission.
- Agreement Commencement Authorization. You confirm that: (1) the Equipment has been delivered/provided and installed, where applicable, and that you have inspected it and found it in good working order and satisfactory for its intended use; or (2) despite the Equipment not having been delivered, you nonetheless authorize the early commencement of your payments and all other terms and conditions of the Agreement. Upon Vendor presenting invoice to Chef Choice, you approve and authorize Chef Choice to pay the full amount of the invoice and you instruct Chef Choice to commence the Agreement and acknowledge immediately being subject to the terms and conditions of the Agreement.
- Each signatory identified as a Guarantor on the signature page hereto (the “Guarantor”), jointly and severally (if more than one) (solidarily in the Province of Quebec), absolutely and unconditionally guarantee the prompt payment to Chef Choice, including its successors and assignees, of any and all obligations incurred by Customer pursuant to this Agreement. Each Guarantor agrees to repay the obligations on demand, without requiring Chef Choice first to enforce payment against Customer. This is an absolute, unconditional, primary, and continuing obligation and will remain in full force and effect until the first to occur of the following: (i) all of the obligations have been indefeasibly paid in full and Chef Choice has terminated this Guarantee, or (ii) 30 days after the date on which written notice of revocation is actually received and accepted by Chef Choice. No revocation will affect: (i) the then existing liabilities of the revoking Guarantor under this Guarantee, (ii) obligations created, contracted, assumed, acquired or incurred prior to the effective date of such revocation that said obligation is owing or is only prospectively to become owing; (iii) obligations created, contracted, assumed, acquired or incurred after the effective date of such revocation pursuant to any agreement entered into or commitment obtained prior to the effective date of such revocation; or (iv) any obligations then or thereafter arising under the agreements or instruments then in effect and then evidencing the obligations. Each Guarantor waives all notices to which the Guarantor might otherwise be entitled by law, and also waives all defenses, legal or equitable, otherwise available to the Guarantor. This Guarantee shall be construed in accordance with the laws of the Province of where the Equipment was located at the Agreement inception and all federal laws applicable therein, and shall enure to the benefit of Chef Choice, its successors and assigns. For any Guarantors located in the province of Alberta a Certificate of Notary Public, in the form required by law, has been obtained by all Guarantors, and each Guarantor acknowledges that this Guarantee shall not be effective until such time as evidence of such Certificate of a Notary Public has been provided to Chef Choice. Each Guarantor hereby executes and delivers this Guarantee to acknowledge its terms and conditions, and to agrees to be bound by all provisions thereof related or applicable to the Agreement. For greater certainty, each Guarantor hereby represents, warrants and covenants that the representations, warranties, covenants, undertakings and indemnities made by Customer and contained in the Agreement or any other documentation evidencing the obligations are equally true and applicable to such Guarantor and each Guarantor further renounces to the benefits of division and discussion. The Guarantor(s) have expressly requested that this Guarantee clause be drafted in the English language. Le(s) caution(s) a(ont) expressément requis que le présent cautionnement soit rédigé en langue anglaise.