ATCO COMMUNITY EQUIPMENT RENTAL AGREEMENT
By using this Website, you represent and warrant that you are the legal age of majority under applicable law to form a binding contract with ATCO and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
This ATCO Community Equipment Rental Agreement (the "Agreement") is made as of the date (the "Effective Date") that you submit your request to borrow Equipment through our Website. This Agreement is between CANADIAN UTILITIES LTD. [ATCO to confirm that CU is the contracting party], a corporation organized under the laws of Alberta, having an office at 5302 Forand Street SW, Calgary, Alberta T3E 8B4 ("ATCO"), and you ("Organizer") (each a "Party" and together the "Parties").
- ATCO facilitates a community equipment rental program to support community events (the "Program");
- Organizer is the organizer of a community event (the "Event") described in Organizer's materials submitted through the Website; and
- Organizer wishes to borrow certain goods (the "Equipment"), selected using ATCO's web portal available at [ATCO to insert link] ("Website"), from ATCO, as part of the Program, on the terms set out in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
Organizer understands that ATCO has established criteria to determine eligibility of community organizers to participate in the Program. Organizer represents, warrants, and covenants that:
- The Event is open to members of the public.
- The Event is not personal in nature.
- The Organization and the Event are not associated, directly or indirectly, with any public office, politician, political party, religion, or any similar person or entity.
- The Organizer is not misrepresenting itself as another individual or company.
- The Event and related activities could not be considered to be unethical, inappropriate, offensive, disrespectful or abusive to others, including but not limited to, defamatory or threatening activities, pornographic or obscene activities, harassing others, discriminatory, abusive, indecent, or other antisocial behaviours.
- The Event shall not include any illegal activities.
- The Organizer shall not represent its opinions as those of ATCO.
Handling of Equipment
2.1 Delivery and Return
In general, the Equipment must be retrieved by Organizer from ATCO, and returned by Organizer to ATCO, as provided in subsection (a). As an exception, some or all of the Equipment shall be delivered by ATCO to and from the event location as provided in subsection (b).
2.1 Title, License, and Availability
Organizer to Pick Up. For items of the Equipment, if any, identified on the Website as "Organizer to Pick Up" (or similar), Organizer shall inspect and accept delivery of the Equipment at a location (the "ATCO Location") during a period of time (the "Pickup Window") set out on the Website. Organizer shall transport the Equipment directly from the ATCO Location to a location (the "Event Location") agreed to through the Website. Organizer shall return the Equipment at the ATCO Location during a period of time (the "Return Window") agreed to using the Website. Organizer shall transport the Equipment directly from the Event Location to the ATCO Location. Organizer shall be responsible for all loading and transport costs and provide equipment and labour reasonably suited and qualified for inspection, receipt, and return of the Equipment at the ATCO Location.
ATCO to Drop Off. For items of the Equipment, if any, identified by ATCO or on the Website as "ATCO to Drop Off" (or similar), Organizer shall inspect and accept delivery of the Equipment at the Event Location during a period of time (the "Drop Off Window") agreed to through the Website. ATCO shall retrieve the Equipment at the Event Location during a period of time (the "Retrieval Window") agreed to through the Website. ATCO may, in its sole discretion, make partial shipments of the Equipment.
Right to Repossess. ATCO may, in its sole and utter discretion, at any time, repossess the Equipment or require Organizer to return the Equipment.
2.1 Organizer Responsible for Equipment
Title. All right, title, and interest in and to the Equipment shall at all times remain with ATCO.
License to Use. ATCO grants to Organizer a limited, non-sublicensable, non-exclusive, revocable license to use the Equipment solely for the Event and for no other purpose, under the terms of this Agreement.
Availability. The Equipment is provided subject to availability and on an "as is, where is" basis. ATCO shall not be liable for any delay or lack of availability.
2.3 ATCO Right to Supervise and Audit
Inspection. Organizer shall inspect the Equipment prior to accepting delivery thereof under section 2.1. Organizer shall inspect the Equipment for health and safety purposes prior to use at the Event Location.
Risk to Equipment. Organizer assumes the risk of loss of, and damage to, the Equipment either (i) when the Equipment is picked up by Organizer under subsection 2.1(a), or (ii) when the Equipment is dropped off by ATCO under section 2.1(b), as applicable. Risk of loss of, and damage to, the Equipment shall return to ATCO when the Equipment is returned to ATCO under section 2.1. Without limiting the generality of the foregoing, if the Equipment is not returned to ATCO in substantially the same state of operability and cleanliness as it was when Organizer received the Equipment, Organizer shall reimburse ATCO for all costs associated with the repair, cleaning, and replacement of the Equipment, as determined by ATCO in its sole and utter discretion. Organizer shall comply with all ATCO and/or manufacturer directions and specifications related to the Equipment.
Insurance. During the Term and for a reasonable period thereafter, Organizer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $500,000.00 [ATCO insurer to advise] with financially sound and reputable insurers. Upon ATCO's request, Organizer shall provide ATCO with a certificate of insurance from Organizer's insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name ATCO as an additional insured. Except where prohibited by law, Organizer shall require its insurer to waive all rights of subrogation against ATCO's insurers and ATCO.
ATCO may, at its own expense, attend the Event, inspect Organizer's use of the Equipment, and, at any time during the Term and for a reasonable period thereafter, audit the Organizer's books, records and other documentation, as necessary to verify and enforce compliance with the terms of this Agreement as determined by ATCO. ATCO shall have no obligation to exercise the rights set out in this section 2.4.
Promotion and Advertising
For the purposes of this Agreement, "Mark" means any trademark, trade name, service mark, dress mark, design, industrial design, logo, domain name, or other indicator of the source or origin of any product or service.
3.2 ATCO Marks
3.3 Organizer Marks
- ATCO hereby grants Organizer, and Organizer hereby accepts, a non-exclusive, non-transferable, non-sublicensable right and license to use ATCO's Marks at the Event Location during the Term solely as necessary to satisfy Organizer's obligations in this Agreement.
- Organizer shall not obscure any of ATCO's Marks on the Equipment.
- Organizer shall prominently display ATCO signage at the Event upon ATCO's reasonable request and at ATCO's cost.
- Organizer shall use ATCO's Marks solely in accordance with ATCO's trademark usage guidelines and quality control standards, as the same may be updated from time to time. Organizer shall not use, register, or attempt to register in any jurisdiction any mark that is confusingly similar to or incorporates any of ATCO's trademarks. All uses of ATCO's trademarks, and all goodwill associated therewith, shall enure solely to the benefit of ATCO, and ATCO shall retain all right, title, and interest in and to its trademarks.
- Organizer shall not contest the ownership or validity of any ATCO Mark including in any litigation or administrative proceeding.
- Organizer shall not use any ATCO Mark in any manner, or engage in any act or omission, that tarnishes, degrades, disparages, or reflects adversely on an ATCO Mark or ATCO's or its affiliates' business or reputation, or that might dilute or otherwise harm the value, reputation, or distinctiveness of or ATCO's goodwill in any ATCO Mark.
- Organizer understands that (i) the ATCO Marks are valuable to ATCO, (ii) any breach of this Article 3 by Organizer or its affiliates will cause ATCO irreparable injury, and (iii) the remedies at law for a breach of this Article 3 are inadequate and the resulting damages cannot readily be measured in monetary terms. Without limiting any of Vendor's other rights and remedies, and notwithstanding anything in this Agreement to the contrary, in the event of any breach or threatened breach of this Article 3 by Organizer or its affiliates, ATCO will be entitled to equitable relief, including in the form of orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security or prove actual damages in connection with such relief.
- Organizer hereby grants to ATCO, and ATCO hereby accepts, a perpetual, irrevocable right and license to use Organizer's Marks in ATCO's advertising, marketing, and promotional materials in all formats and media, and to identify Organizer, by name and using Organizer's Marks, as having benefited from the Program.
4.1 ORGANIZER ASSUMES RISK
4.2 NO WARRANTY BY ATCO
GENERAL ASSUMPTION OF RISK. ORGANIZER UNDERSTANDS AND AGREES THAT THE POSESSION AND/OR USE OF THE EQUIPMENT INVOLVES MANY RISKS, DANGERS, AND HAZARDS, INCLUDING BUT NOT LIMITED TO THE RISK OF SERIOUS INJURY, DEATH, OR PROPERTY DAMAGE. ORGANIZER AGREES THAT IT IS VOLUNTARILY BORROWING THE EQUIPMENT FROM ATCO. ORGANIZER FREELY ACCEPTS AND FULLY ASSUMES ANY AND ALL OF THE RISKS, DANGERS, AND HAZARDS INVOLVED AND THE POSSIBILITY OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY THE NEGLIGENCE OF ATCO OR OTHERWISE.
Release. Organizer hereby expressly waives and releases any and all claims which Organizer has or may in the future have against ATCO, its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, successors, and assigns (collectively, "Releasees"), including without limitation on account of injury, death, or property damage, arising out of or attributable to this Agreement, including without limitation any use or possession of the Equipment, due to any cause whatsoever, including without limitation the negligence of ATCO or any other Releasee, breach of contract, or breach of any statutory or other duty of care owing under occupiers liability legislation or otherwise. Organizer covenants not to make or bring any such claim against ATCO or any other Releasee, and forever release and discharge ATCO and all other Releasees from liability under such claims.
INDEMNIFICATION. ORGANIZER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS ATCO AND ALL OTHER RELEASEES AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE LEGAL FEES, IN CONNECTION WITH ANY THIRD-PARTY CLAIM, SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RESULTING FROM THIS AGREEMENT.
4.3 LIMITATION OF ATCO'S LIABILITY
- ATCO MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Equipment. For the avoidance of doubt, ATCO MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- IN NO EVENT SHALL ATCO BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY ORGANIZER OR COULD HAVE BEEN REASONABLY FORESEEN BY ATCO OR ORGANIZER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL ATCO'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $1.00 (ONE DOLLAR).
The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any express provisions of the Agreement, will continue in effect until both Parties' fulfillment of their respective obligations (the "Term").
- Organizer may terminate this Agreement without cause at any time prior to accepting delivery of the Equipment by giving written notice of such termination to ATCO.
- ATCO may terminate this Agreement without cause at any time by giving written notice of such termination to Organizer.
The provisions set forth in the following sections, and any other right or obligation of the Parties under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Articles 1, 2.1, 2.2(a), 2.2(c), 2.3, 2.4, 3.1, 3.3, 4, and 6.
6.1 Compliance with Laws
6.2 Relationship of Parties
Organizer is in compliance with and shall comply with all applicable laws, regulations, codes and ordinances. Organizer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations and exercise its rights under this Agreement.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
6.3 Further Assurances
At all times, each Party, at its expense, shall promptly execute and deliver all such documents including additional conveyances, instruments, transfers, consents and other assurances, and do all such other acts and things as the other Parties, acting reasonably, may from time to time request be executed or done in order to better evidence, perfect or give effect to any provision of this Agreement or other document delivered pursuant to this Agreement or any of the respective obligations created or intended to be created by this Agreement.
6.4 No Costs
Each party will bear its own costs and legal fees arising from the negotiations to enter into this Agreement and from any other actions that may be necessary to execute the terms of this Agreement.
6.5 No Waiver
No party will be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing. No waiver made with respect to any instance involving the exercise of any such right will be deemed to be a waiver with respect to any other instance involving the exercise of the right or with respect to any other such right.
Any notice, consent, determination or other communication required or permitted to be given under this Agreement must be in writing and delivered to the applicable address written above or to any other address or person as a Party may specify in writing.
6.7 Time is of the Essence
Time is of the essence in the performance of the Parties' respective obligations under this Agreement.
This Agreement will be binding upon and enure to the benefit of the Parties and their respective successors, permitted assigns, heirs and legal representatives.
6.9 No Third-Party Beneficiaries
Except as otherwise provided herein, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
The rights and obligations of Organizer under this Agreement may not be assigned or transferred without the prior written consent of ATCO. The rights and obligations of ATCO under this Agreement may be assigned or transferred by giving notice to Organizer.
No modification or amendment to this Agreement may be made unless agreed to by the Parties in writing.
6.12 Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior oral or written agreements, understandings, representations and warranties and courses of conduct and dealing between the Parties on the subject matter thereof.
6.13 Independent Legal Advice
Each of the Parties acknowledges that it has been afforded the opportunity of receiving independent legal and tax advice concerning this Agreement, and in the event that any Party has executed this Agreement without the benefit of independent legal or tax advice, such Party fully understands the provisions of this Agreement and hereby waives the right to receive any such independent legal and tax advice.
6.14 Neutral Interpretation
Each Party has participated fully in the negotiation of all provisions of this Agreement and each provision will be interpreted and construed in accordance with its fair and plain meaning, with no inference, presumption or burden of proof in favour of or against any of the Parties for reason that one party drafted or was more responsible for the drafting of this Agreement or any of its provision(s).
If any arbitrator or court of competent jurisdiction determines any provision of this Agreement or portion thereof to be illegal, invalid or unenforceable, that provision or portion thereof will be severed from this Agreement without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
6.16 Governing Law and Attornment
This Agreement will be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein without regard to conflict of laws principles. Each of the Parties attorns to the jurisdiction of any court within the Province of Alberta having subject matter jurisdiction over this Agreement.
In this Agreement, the headings are for convenience of reference only, do not form a part of this Agreement, and are not to be considered in the interpretation of this Agreement.
6.18 Number and Gender
In this Agreement, the use of words in the singular or plural, or with a particular gender, will not limit the scope or exclude the application of any provision to such person(s) or circumstance(s) as the context otherwise permits.
6.19 Certain Phrases, etc.
In this Agreement: (i) the words "including," "includes" and "include" mean "including (or includes or include) without limitation," and (ii) the phrase "the aggregate of," "the total of," "the sum of," or a phrase of similar meaning means "the aggregate (or total or sum), without duplication, of". In the computation of periods of time from a specified date to a later specified date, unless otherwise expressly stated, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding".
This Agreement may be executed and delivered in counterparts and may be delivered in original or electronic form, each of which when so executed and delivered will be deemed to be an original and when taken together, will constitute one and the same Agreement.