TERMS AND CONDITIONS OF THE LEASE
1.The customer acknowledges having examined and tested the equipment described herein, and that they are in good working order, and the customer accepts them as such and in their present condition and without abatement of rent or claims with respect thereto. The customer acknowledges that such equipment is rented without representations or warranties of any kind either express or implied, and, except as respects the negligence or willful misconduct of the company, the company assumes no liability in facts or law on the performance or operation of such equipment. The customer must send back to the company any piece of equipment that becomes impossible to use after the delivery, to exchange it for other equipment. This provision does not relieve the customer from liability in the event that the equipment hereby leased be damaged, destroyed, or not returned to the company, except if due to the negligence or willful misconduct of the company.
2. The equipment or any part thereof must not be moved outside the province of Quebec without the prior written permission of the company. Equipment leased hereby shall be used only by employees or principals of the customer, who are qualified and have received approval from the company, and in strict accordance with the laws in force in Quebec and with the use specified herein.
3. The customer will maintain the equipment hereby leased exclusively in its custody, and not allow any use of equipment that is contrary to any federal, provincial or municipal law, regulation or order, and the customer agrees to keep the company free and indemnify the company as to any fine, forfeiture or penalty arising from the use of equipment by the customer, and for any breach of a statute, law, ordinance or regulation of any duly constituted public authority, except if due to the negligence or willful misconduct of the company.
4. The customer acknowledges that the company holds all rights to the equipment and the customer agrees not to do anything that might hinder these rights and to keep the equipment free of charge or mortgage. The customer must at all times and at its expense, protect and defend the rights of the company to the equipment on a charge or mortgage caused by customer’s acts or omissions and against any claims by creditors of the customer and the customer must immediately notify the company of any seizure or other legal proceedings that could affect the said equipment.
5. The customer must take delivery of equipment to the place of business of the company. If the customer requires the equipment to be delivered elsewhere in Quebec, the customer assumes all costs and liabilities related to transportation and shipping from facilities of the place of business of the company including, without limiting the foregoing, all packaging costs, insurance, loading and unloading, except as respects the negligence or willful misconduct of the company. The customer assumes the risk of loss and damage of equipment during transport and during their return, except as respects the negligence or willful misconduct of the company. If the customer requires delivery via trucks or drivers of the company, the customer is committed to insuring every truck, at its own expense and according to a formula "all risks", and to hiring and paying each driver directly, on its own payroll or the payroll of its payroll services company, and maintaining coverage for accidents for each driver, to the extent allowed under current local law and in accordance with the indemnity provisions herein. Said drivers will be deemed to be employees of the customer while providing services to the customer, from the time they leave the place of business of the company or any designated place, until they bring the equipment back to the place of business of the company or any place designated, and the customer agrees that the company shall have no responsibility for their actions or omissions during such period of time, except as respects the negligence or willful misconduct of the company.
6. The customer acknowledges that the use and operation of equipment requires skilled and trained technicians, and, unless the operation of leased equipment is made by technicians provided by the company, the customer must not hire or retain services of a technician to operate the equipment without obtaining the prior written permission of the company, but such consent shall not be unreasonably withheld.
7. The customer shall make no alterations, additions, improvements or modifications to equipment without the prior written consent of the company.
8. While the equipment is in their possession, the customer shall at its own expense, take care and maintain the equipment in as good working order as received, reasonable wear and tear excepted, and shall provide any guarantee that the company may reasonably require to ensure this obligation. Repairs and maintenance may only be performed by technicians with the knowledge and skills to repair or maintain the equipment and having received prior written approval of the company. At the expiration of the lease, the customer must return the equipment to the company in the same condition as when delivered to the customer, reasonable wear and tear excepted.
9.
A) The customer agrees to assume, while the equipment in their possession and under his control, all risks of loss, theft or damage arising from his fault or negligence, and the customer agrees to defend, indemnify and take up the cause of the company in respect of all such loss, theft or damage.
B) The customer agrees to defend, indemnify and take up the cause of the company in respect of any claims, reasonable costs, reasonable expenses and liabilities, including reasonable outside attorneys' fees and reasonable legal fees, for personal injury, damage to property or otherwise, arising from the use, possession, storage, operation, transport or handling of the equipment while in the possession and control of the customer, except if due to the negligence or willful misconduct of the company.
C) The customer shall at its own expense, procure and maintain insurance on a formula "all risks", to protect the company against any loss including any loss of rent, theft and damage arising from the acts or omissions of the customer, and for a value that must not be less than the full replacement value of equipment leased hereby, including taxes, customs fees, transportation and others related costs. The company must be named as additional insured as its interests may appearunder all such policies. The customer must also, at its own expense, hold liability insurance for an amount reasonably satisfactory to the company and appointing the company as the additional insured. If at any time whatsoever, the company has reasonable grounds to believe that the customer has not fully complied with its obligations under this paragraph, the company may purchase insurance policies mentioned above or any part thereof, and then the customer must immediately repay the cost of those policies to the company. The customer must provide the company at the time of signing this lease, certificates of insurance as evidence of the insurance policies required hereunder.
D) If the customer requires the delivery of equipment via trucks, vans or other vehicles used to transport from the place of business of the company or place of storage and for return to the place of business of the company or to a storage area, these vehicles will be deemed part of the equipment for the purposes of this paragraph 9.
10. If the equipment is lost, stolen or damaged in whole or in part, while in the possession or control of the customer, the customer must notify the company immediately and the customer agrees to pay the company, upon request, the lesser of the following amounts:
A) The reasonable costs incurred to repair such equipment and bringing it back to the same good operating condition as received, reasonable wear and tear excepted, or;
B) The full replacement value of such equipment or;
C) As respects vehicles, the actual cash value of said vehicles at the time of rental.
In addition, the customer shall pay all lease payments that the company would have received from the customer if the equipment had not been lost, stolen or damaged at the same daily or weekly rate as established bythe present lease until the earlier of the time that the equipment or vehicle is promptly repaired or the company is paid full replacement cost for the damaged equipment (or actual cash value for damaged vehicles). The loss or theft of equipment must be reported to law enforcement within 48 hours of its discovery.
11. If on behalf of the customer, the company gathers, delivers or handles property of the customer or third parties, without charge or payment, the company assumes no liability for any loss or damage in respect to such property, except as respects the negligence or willful misconduct of the company, and the customer agrees to defend, indemnify and take up the cause of the company in respect of any and all reasonable costs, reasonable expenses, liabilities and claims, including reasonable outside attorneys' fees, arising from such loss or such damage to such property, or arising due to the pickup or delivery of such goods by the company, except if due to the negligence or willful misconduct of the company.
12. When the company authorizes in writing under the hand of a director, that the equipment is to be moved out of Canada, the equipment must be registered with Canada Customs prior to departure. At the request of the customer, the company will provide a list of serial numbers, country of origin and value of equipment. The customer must provide and pay adequate guarantees and customs charges. Any delay arising from failure to register the customer rented equipment will be charged as a normal day until the equipment is returned to the company.
13. This Agreement supersedes any prior agreement or contract, written or oral, and constitutes the entire agreement between the parties and cannot be changed except by a document signed by the parties hereto. This lease shall not constitute a contract and neither party shall be bounduntil signed by a director of the company.
14. When the equipment is being returned and accepted by the company, this does not constitute a waiver of any claim that the company could make against the customer under this lease, or a waiver of claims for hidden or apparent damage to the equipment. Notwithstanding the foregoing, the company shall provide written notice to customer of any damage claimed to be caused by the customer within two (2) weeks of return to the company. Failure to provide this notice within this time period shall be deemed a waiver of claim.
15. Thecustomerwarrants to company that all information on its credit and financial condition, provided to the company for the purpose of inducing the company to enter into this lease is true and complete in all material respects. In the event of an adverse change of material aspects of such information, or in the event that the equipment is lost or damaged, the customer must promptly notify the company in writing.
16. This lease was written in the province of Quebec and is subject to and must be interpreted under the laws of the Province of Quebecapplicable to contracts of this nature and customer hereby consents to the jurisdiction of said Province. Any controversy or claim arising out of or relating to this agreement, its enforcement, arbitrability or interpretation shall be submitted to final and binding arbitration, in accordance with the procedures set forth in the Civil code of Quebec. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. The arbitration shall be a confidential proceeding, closed to the general public. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator's award is based. The parties will share equally in payment of the arbitrator's fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorneys' fees and other expenses to the same extent as if the matter were being heard in court). Nothing in this paragraph shall affect either party's ability to seek from a court injunctive or equitable relief at any time to the extent same is not precluded by another provision of this agreement.
Company’s rights and remedies in the event of any breach by customer of this Agreement shall be limited to company’s right to recover damages, if any, in an action at law. In no event shall company be entitled to enjoin or restrain or otherwise impair in any manner the production, distribution, or exploitation of any of customer’s or Sony Pictures Entertainment’s productions, or any parts or elements thereof, or the use, publication or dissemination of any advertising, publicity or promotion in connection therewith.
17.If this lease is guaranteed by a security deposit, the security deposit may be applied against all undisputed rent payments due from the customer and any other undisputed obligation or agreement of the customer hereunder, and the company may apply the deposit without having to first proceed against the customer.
18.In the event that the company successfully instituted legal action to enforce the provisions hereof or to declare rights hereunder, the company will be entitled to receive, in addition to any compensation, reimbursement of reasonable expenses, reasonable outside attorneys' fees and legal costs.
19. Giventhe strong demand for the equipment leased hereunder and the difficulty of re-renting rapidly, the execution hereof by the customer constitutes an obligation to pay rent for all days covered by the contract, regardless of whether the customer can use the equipment or not (except if the customer is unable to use the equipment due to the negligence or willful misconduct of the company). In the event of a termination by the customer in respect of one or more days covered by the contract, the company will make good faith efforts to rent the equipment and, where applicable, will release the customer from the obligation to pay the costs of these leased back days. The company technician will be paid at least eight hours per day for any day that is the subject of termination, unless the customer has been released by the company from its obligation to pay.
20. The rates payable to a technician/operator for the Pegasus crane, Giraffe Crane, Jimmy Jib, Jib crane and Swiss Technocranes are:
The day of the said technician has a minimum of eight (8) billable hours at the rate of $ 45.00 per hour. (APVQ-VIDEO 10 HOURS MIN)
The applicable rate for overtime after eight (8) hours is multiplied by 1.5, or $ 67.50 per hour.
The applicable rate for overtime after twelve (12) hours is multiplied by 2, or $ 90 per hour.
The standard amount of the meal after six (6) hours corresponds to the then applicable rate multiplied by 2.
Holidays are paid at the rates set multiplied by 2
21. The calculation of fees for a technician begins when the technician leaves the place of business of the company, and ends when the technician returns to the place of business of the company, unless otherwise agreed between the customer and the company.
22. The Technician follows regulations of the "Collective Agreement" (Montreal, November 18.1996) between the APFTQ STCVQ and especially Article 10 (extra time), Article 11 (holidays) and Article 14 (costs-out of town).
23. The company hereby warrants that the equipment provided to customer is certified and complies with all applicable local, state/provincial and federal regulations. The company acknowledges that any crane technicians provided to customer are authorized, qualified and trained, and that they are familiar with and will abide by any and all governmental regulations that are applicable to this type of crane operation. These rules and regulations may include, but are not limited to, requirements set forth by local, state/provincial and federal regulatory agencies. If crane technicians are provided, the company’s technicians shall provide proof of operator training in the form of a certification card, if applicable, and the company shall provide evidence in the form of certification of the Equipment’s annual Cal/OSHA Inspection Certificate (Plate V), or the equivalent thereof if outside the state of California, if applicable.
24. The company represents and warrants that the equipment is in good repair and working order, and to the best of the company’s knowledge, the equipment has no defects, and that the company is the owner of the equipment. The company will indemnify customer for any breach of the foregoing representations and warranties. Customer acknowledges that the equipment is leased without warranty or guarantee except as required by law and as described herein.
25. The parties agree that, where the context requires, the singular shall be deemed to include the plural and vice versa, and that masculine words shall be deemed to include the feminine. (Translation of clause 23 French version)