1. MASTER LEASE AGREEMENT
Subject to the terms of this Master Lease Agreement, the Lease Agreement and the vHub Terms and Conditions (as each such term is defined below), the Owner (hereinafter defined as the “Lessor”) puts at the disposal of and leases to the Renter (hereinafter defined as the “Lessee”) and the Lessee leases from the Lessor, for the carrying on of its enterprise, the personal or movable property together with all attachments, replacements, parts, substitutions, additions, software licenses, repairs, support, consulting services and accessories relating thereto, or used in connection therewith, now attached to or delivered with, or which may at any time hereafter be incorporated into or affixed, whether or not provided by the Lessor (“Equipment”) more specifically described in the applicable Lease Agreement entered into by the Lessor by placing a Listing on vHub and by the Lessee by placing a Reservation on vHub (defined below). Each lease shall be a separate and enforceable lease (“Lease Agreement”) with respect to the Equipment described therein, incorporating by reference the terms and conditions of this Master Lease Agreement and the vHub Terms and Conditions. Notwithstanding the delivery of the Equipment to, and its possession and use by the Lessee, the Lessor shall retain the full legal title to and ownership of the Equipment, it being expressly understood that each Lease Agreement constitutes a Lease Agreement only.
2. VHUB PLATFORM
The Lessee and the Lessor hereby acknowledge and agree that the Lease Agreement is being entered into in connection with the online sharing platform (“vHub”), provided by Finloc 2000 Inc. (“Finloc”) that connects Lessors and Lessees. The vHub website and mobile application and associated services are collectively referred to as the “Services”. This Master Lease Agreement, the applicable Lease Agreement and the Lessor and Lessee’s use of the Services are subject to the terms and conditions of use of vHub relating to Equipment rental (the “vHub Terms and Conditions”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the vHub Terms and Conditions.
3. NO SET-OFF, NON-CANCELLABLE AGREEMENT
THIS MASTER LEASE AGREEMENT CANNOT BE CANCELLED, RESILIATED OR RESOLVED EXCEPT AS EXPRESSLY PROVIDED HEREIN. The Lessee irrevocably and unconditionally waives and renounces rights of set-off and compensation against any Rental Payments and other amounts due to the Lessor hereunder or thereunder or pursuant hereto or thereto and agrees to pay each such Rental payment and other amounts without regards to any rights of set-off or compensation. Neither defects, vice, damage to, nor loss, destruction or late or non-delivery of the Equipment shall entitle the Lessee to cancel, terminate or resolve this Master Lease Agreement or reduce Lessee’s obligations hereunder or thereunder.
4. RENTAL PAYMENT
The Lessee shall pay to Finloc (on account of the Lessor), the Rental Payments set out in the applicable Lease Agreement together with all applicable sales taxes and any other sums due hereunder (including the penalty set forth in Section 5 below). Unless otherwise provided, the first Rental Payment is payable upon Pick-Up and subsequent payments will be due upon Drop-Off (“Rental Payment”). Please refer to our Payment Terms relating to Equipment rental.
5. RETURN OF THE EQUIPMENT
The Lessee shall return the Equipment, in the same condition as the Pick-up time except for normal wear and tear and at Lessee’s own expense at the Lessor’s Drop-Off address or to any other address determined in a further Notice sent by the Lessor. The Equipment can be returned at any time by the Lessee and the initial Reservation may be extended for so long as the Equipment remains available for rent on vHub. The Lessee will be notified through vHub 24 hours prior to the scheduled Drop-Off. If the Lessee does not or cannot extend the Reservation, the Equipment must be retuned at the specified Drop-Off date and address. The Lessor may, at its sole discretion, decline any requests to extend the Reservation. Any late Drop-Off or Drop-Off at the wrong location shall be subject to a penalty payable by the Lessee of $100 per day. Lessee will be liable to Lessor for all expenses Lessor incurs or would incur in placing the Equipment in the condition required by this Lease (whether or not Lessor actually does place the Equipment in such condition), up to the fair market value of the Equipment. Any additions to the Equipment made in violation with Section 7 hereof which are not removed before return shall become Lessor’s exclusive property (lien free) or, at Lessor’s option and Lessee’s expense, removed and returned to Lessee or sold, destroyed, or otherwise disposed of, all without any liability on the part of Lessor or any other person to Lessee or any other person, and the Equipment restored to its original condition.
6. EXCLUSION OF WARRANTIES
THE LESSEE ACKNOWLEDGES THAT THE LESSOR HAS NOT MADE ANY REPRESENTATION NOR GIVEN ANY WARRANTY, WHETHER LEGAL, STATUTORY OR CONTRACTUAL, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS CONCEPTION, GOOD WORKING ORDER, CONDITION, QUALITY, SAFETY, ROAD WORTHINESS, LEGALITY, MERCHANTABILITY, QUIET ENJOYMENT, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LESSOR SHALL NOT, IN ANY WAY, BE HELD RESPONSIBLE FOR ANY LATENT DEFECT OR ANY OTHER DEFECT OF THE EQUIPMENT OR OTHER LACK OF CAPACITY OR PRODUCTIVITY.
THE LESSEE HAS INSPECTED THE EQUIPMENT AND ACKNOWLEDGES THAT THE EQUIPMENT IS IN GOOD CONDITION AND IS SUITABLE FOR THE PURPOSE FOR WHICH IT IS LEASED, AND THAT ALL SUCH REPRESENTATIONS, WARRANTIES, OR CONDITIONS ARE HEREBY EXPRESSLY WAIVED AND EXCLUDED.
THE LESSEE AGREES THAT ITS USE OF EQUIPMENT MAY CARRY INHERENT RISK, AND BY SUBMITTING A RESERVATION, OR USING THE SERVICES, LESSEE CHOOSES TO ASSUME THOSE RISKS VOLUNTARILY. LESSEE ASSUMES FULL RESPONSIBILITY FOR THE CHOICES LESSEE MAKES BEFORE, DURING AND AFTER THE APPLICABLE SERVICE PERIOD.
BECAUSE CERTAIN FEDERAL OR PROVINCIAL LAWS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO THE LESSEE.
THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS MASTER LEASE AGREEMENT.
7. OWNERSHIP, ACCESS AND USE
At all times, the Equipment shall be the sole and separate property of the Lessor; the Lessee shall have no property or other rights therein, but only the right to enter, occupy, and otherwise use the Equipment subject to the provisions hereof and of any Lease Agreement. The Lessee acknowledges and agrees that the Equipment shall in all respects be under the sole responsibility of the Lessee hereunder and under the Lease Agreement. The Lessee is responsible to pay all toll charges, tickets, fines, penalties or any other amounts owing as assessed by any authority for the Lessee’s operation of the Equipment. The Lessee shall keep affixed to the Equipment all markings stating that the Equipment is owned by the Lessor. The Lessee shall conform to all laws pertaining to licensing, possession, use and maintenance of the Equipment and shall not use the Equipment for illegal purposes. The Lessor may inspect the Equipment at any time and the Lessee hereby acknowledges and agrees that the Equipment may be tracked by the Lessor. The Equipment shall only be used by the Lessee or by the Lessee’s employees in a careful, prudent and proper manner. The Lessee shall maintain the Equipment in the same condition as when delivered at Pick-Up, normal wear and tear excepted. Every cost and expense of operating, servicing, inspecting and maintaining the Equipment in accordance with the standards specified by the manufacturer of the Equipment and/or any applicable regulatory authority, shall be at Lessee’s expense. The Lessee shall cause the Equipment to be operated or driven by competent operators only, and, where required by law, such operators shall be duly licensed. The Lessee shall not make any alterations to or modify the Equipment. Unless expressly agreed by the Lessor, the Lessee undertakes not to use the Equipment to transport any hazardous materials and in no event shall the Lessee use the Equipment for the transport of any contraband materials. The Lessor and the Lessee hereby confirm their intents that the Equipment shall always remain and be deemed personal or movable property even though the said Equipment may hereafter become attached or affixed to real or immovable property. The Lessee shall, if requested by the Lessor, use all reasonable efforts to obtain, on behalf of the Lessor, any necessary or desirable waiver of the rights of any third party which arise by reason of any item of the Equipment becoming or being attached or united to any movable or immovable property. The Lessee shall provide such waiver to the Lessor for any owner of any such movable or immovable property, as the case may be, and of any mortgagee of the Lessee.
8. RISK OF LOSS OR DAMAGE
The Lessee shall bear the entire risk whole or partial loss, theft, destruction or damage to the Equipment from any cause whatsoever from the date of the Pick-Up of the Equipment until it is returned and received by the Lessor as per Section 5 hereof. Except as provided in this section, no loss will condition, reduce, or relieve Lessee’s Lease obligations, including its obligation to pay Rental Payments in full. The Lessee shall promptly notify the Lessor of any loss or damage. No loss or damage shall relieve the Lessee of the obligation to pay the Rental Payment or perform any other obligations under any Lease Agreement. The Lessee, at the Lessor’s option, shall either restore the Equipment to good condition, repair the Equipment, replace the Equipment with an identical product, or pay the Lessor the replacement value, breakage costs and other costs.
9. EXCLUSION OF LIABILITY AND INDEMNITY
The Lessee discharges the Lessor from all liabilities and undertakes to indemnify the Lessor and to hold the Lessor harmless from and against all claims, losses and costs, (including legal fees and reasonable attorneys’ fees) damages and liabilities arising out of the Lease Agreement, the Equipment or its use, whether caused by the Lessor’s negligence or otherwise, including, without limitation, the manufacturing, selection, purchase, specifications, safety, condition, delivery, possession, use, storage or return of the Equipment. Without prejudice to the foregoing, the Lessee shall indemnify and hold the Lessor harmless from and against all costs, losses and damages, claims, suits or penalties whatsoever incurred or which may be incurred by the Lessor or for which it is or may be held responsible: (i) any theft, defect, destruction or loss of the Equipment or damage to the Equipment arising during the Lessee’s possession of the Equipment, whatever the cause or whoever may be responsible, (ii) to the maintenance, repair or lack thereof, (iii) the use or possession of the Equipment by the Lessee, (iv) against the Lessor’s ownership of the Equipment, (v) any bodily injuries, death or material damage which may arise out of the use, operation or ownership of the Equipment or be caused by or related to the same, or (vi) against any fine or penalty resulting from the purchase, use, manufacturing, renovation, or working order of the Equipment in violation of applicable laws of any jurisdiction where the Equipment may be found or located, at all times or from time to time, and any infringement of any patent or similar right. This clause shall survive the termination of any Lease Agreement.
The Lessor and the Lessee hereby agree to indemnify, defend and hold harmless Finloc from and against any and all losses, damages, liabilities, and claims and all fees, costs, expenses, of any kind related thereto (including, without limitation, legal fees and reasonable attorneys’ fees) incurred by Finloc in connection with any claim arising out of, based upon or resulting from the Services, the Lease Agreement, this Master Lease Agreement or any Equipment and any Equipment damage or personal injury, death or property damage caused by the Equipment to anyone or anything and any violation of applicable laws or regulations, including any such laws or regulations related to transportation and handling of the Equipment. This clause shall survive the termination of any Lease Agreement.
10. TAXES, LIENS OR PRIVILEGES, SUBLEASE AND ASSIGNMENT
The Lessee shall keep the Equipment free and clear of all hypothecs (in the province of Québec), security interests, liens, privileges and encumbrances and shall pay all fees, assessments, charges and taxes imposed on under the Master Lease Agreement and under the Lease Agreement, the payments thereunder or related to the possession of, use, or dealing with the Equipment. The Lessee shall pay any sales, usage or other taxes arising out of the Master Lease Agreement and any Lease Agreement required by law. If the Lessee defaults under this provision, the Lessor may make any payment which the Lessee has failed to make, in which case same shall become immediately due and payable as an additional Rental Payment due by the Lessee to the Lessor, together with the interest, provided that the Lessor shall under no circumstance be obliged to make any such payment. The Lessee shall not assign, transfer, hypothecate or otherwise place any lien on this Master Lease Agreement, any Lease Agreement or the Equipment or sublease the Equipment, nor shall it part with possession or control of the Equipment until returning the Equipment pursuant to Section 5 hereof.
11. LESSEE’S AND LESSOR’S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Lessee hereby represents, warrants and undertakes as follows:
11.1 If the Lessee is not an individual, it is duly constituted and validly subsisting under the laws of its constitution and where it operates, and shall remain as such for the entire term hereof and of any Lease Agreement (it shall not proceed with any corporate reorganization, merger or other, without the Lessor’s written consent) and has the power and capacity to execute this Master Lease Agreement, any Lease Agreement and to supply all required certificates and other documents required hereunder or contemplated hereby, including, without limitation, any resolution or certificate of an officer or director of the Lessee;
11.2 This Master Lease Agreement (including any Lease Agreement) has been duly authorized by the Lessee; where the said document has been executed and delivered in its name by its appropriate directors duly authorized to do so. This Master Lease Agreement (including any Lease Agreement) constitutes a legal, valid and binding obligation of the Lessee, enforceable in accordance with its terms; copies of said authorizations, duly certified by an authorized officer of the Lessee, are delivered to the Lessor; and
11.3 There are no actions, suits or proceedings pending or, to the knowledge of the Lessee, threatened against the Lessee for (i) its property or its assets or (ii) the financial situation of the Lessee or its business, either of which could affect the carrying out of this Master Lease Agreement (including any Lease Agreement) (collectively, “Lessee Legal Proceedings”). The Lessee shall promptly notify the Lessor and Finloc of any Lessee Legal Proceedings.
11.4 At all times during the term of this Master Lease Agreement, the Lessee shall comply with all applicable laws or regulations, including any such laws or regulations related to transportation and handling of the Equipment.
11.5 The Lessee will not change, as the case may be, (i) its name, (ii) its jurisdiction of incorporation or formation, (iii) the location of its registered head office, (iv) the location of its principal place of residence or (v) the location where its books and records are currently stored, in each case without providing the Lessor with reasonable written notice thereof.
Lessor hereby represents, warrants and undertakes:
11.6 Lessor is the legal owner of the Equipment, has the power and capacity to execute this Master Lease Agreement, and this Master Lease Agreement (including any Lease Agreement) constitutes a legal, valid and binding obligation of the Lessor, enforceable in accordance with its terms; copies of said authorizations, duly certified by an authorized officer of the Lessor, are delivered to the Lessee; and
11.7 There are no actions, suits or proceedings pending or, to the knowledge of the Lessor, threatened against (i) the Lessor or the Equipment, or (ii) the financial situation of the Lessor or its business, either of which could affect the carrying out of this Master Lease Agreement (including any Lease Agreement) (collectively, “Lessor Legal Proceedings”). The Lessor shall promptly notify the Lessee and Finloc of any Lessor Legal Proceedings.
11.8 At all times during the term of this Master Lease Agreement, the Lessor shall comply with all applicable laws or regulations, including any such laws or regulations related to transportation and handling of the Equipment.
The Lessee shall be in default in any of the following cases:
- The Lessee fails, for any reason, to pay when due, in whole or in part, any Rental Payment or any other sums due under the Master Lease Agreement, or the Lessee fails to fulfill any of its obligations under the insurance provisions hereof;
- The Lessee defaults in the observance or performance of any of the covenants, undertakings and agreements of the Lessee hereunder or under any Lease Agreement, and such default shall continue and remain uncured for a period of five (5) days from the date the Lessor notifies the Lessee of such default;
- The Equipment or any part thereof is, in the opinion of the Lessor, in imminent danger of serious damage or loss or destruction;
- The Equipment or any part thereof is seized under legal process, confiscated, sequestered, seized or attached;
- Any proceeding in bankruptcy, insolvency, receivership, winding-up or dissolution is instituted against the Lessee or any guarantor of the Lessee;
- The Lessee or any guarantor of the Lessee makes a general assignment for the benefit of its creditors or declares bankruptcy;
- The Lessee or any guarantor of the Lessee no longer carries on business or sales a substantial part of its assets;
- If the Lessee is a legal person, the identity of the holders or beneficial owners of the majority of the Lessee’s outstanding voting shares is modified (otherwise than by death) without the Lessor’s prior written consent;
- The Lessee fails to comply with any other terms or conditions hereof or of a Lease Agreement;
- The Lessee admits to be insolvent;
- The Lessee or any guarantor of the Lessee is in default under any other agreement, contract or undertaking it may have with the Lessor (for the purposes hereof, the Lessor means any other company or person related thereto) or anyone else;
- The Lessee or any persons related to or of the same group of persons as the Lessee or any guarantor of the Lessee is in default under any agreement, contract or undertaking it may have with the Lessor or any other persons;
- Unless expressly permitted by this Master Lease Agreement or the applicable Lease Agreement, Lessee relocates the Equipment or purports to assign or sublet any interest in the Equipment or this Master Lease Agreement or applicable Lease Agreement; or
- there is in the Lessor’s sole opinion acting reasonably a material adverse change in the financial condition of the Lessee.
The Lessee undertakes to immediately notify the Lessor of any default or notice of default the Lessee may be given, and shall so advise the Lessor of the measures taken to dispute or cure such default.
13. REMEDIES ON DEFAULT
Upon the occurrence of an event of default and without any obligation on its part, the Lessor may give the Lessee notice of default and, upon giving of such notice or at any time thereafter, at its entire discretion, exercise any of the following rights, without prejudice to and in addition to, any other right it may have at law or in equity against the Lessee:
(a) Declare the Lease Agreement terminated and take possession of the Equipment wherever located, without further formality or proceeding, Notice or demand and sell, lease or otherwise dispose of the Equipment upon such terms and conditions as the Lessor may determine. The Lessee hereby waives all claims for damages from the Lessor arising out of repossession, voluntary assignment, removal, resale or any other disposition of the Equipment. The Lessee shall pay to the Lessor all disposition costs, legal expenses, disbursements, commissions, and other expenses incurred by the Lessor as a result of the default by the Lessee;
(b) Make any payments to remedy the default and recover such payments from the Lessee together with all other sums due under any Lease Agreement;
(c) Receive forthwith upon demand, for any or all of the Equipment, the following amounts which the Lessee shall be obliged to pay:
(i) Pre-estimate of damages suffered by the Lessor and not as penalty, an amount equal to the replacement value, less the proceeds derived from the sale, Lease or other disposition of the Equipment after deducting all disposition costs (all costs, legal expenses, disbursements, commissions, fees and other expenses incurred by the Lessor in recovering possession of, removing, transporting, storing, dismantling, reassembling, reinstalling, repairing, reconditioning, selling, Lease, or otherwise disposing of the Equipment) if the Lessor has sold, leased or otherwise disposed of the Equipment;
(ii) Financial costs, current or potential, incurred or to be incurred by the Lessor and arising out of any financing arrangements made by the Lessor, including the use of its own funds, relating to the purchase price of the Equipment and with respect to unwinding any funding relating to the purchase price of the Equipment or redeploying such funds in order to match contractual obligations; and
(iii) All other costs and expenses (including reasonable solicitor’s fees) incurred by the Lessor in collecting any sums due hereunder and under any Lease Agreement.
Throughout the entire term of any Lease Agreement, the Lessee assumes all risks of loss or damage to the Equipment resulting from any cause whatsoever, and all risks of liability and property damage resulting from the Equipment, its use, its sublease and, without limiting the generality of the foregoing:
14.1 The Lessee shall obtain and maintain insurance coverage on the Equipment for its full replacement value, against all risks of loss or damage to property, including, without limitation, risks of fire, theft, collision and such other risks and perils as are customarily insured against the Equipment leased herein in similar circumstances by a diligent commercial enterprise conducting similar operations. The Lessor reserves the right to require the Lessee to effect and maintain insurance coverage against other risks and perils and for additional amounts as Lessor deems necessary. The Lessor shall be named as loss payee as its interests may appear and as the sole beneficiary in all policies with respect to damage or loss to the Equipment.
14.2 The Lessee shall obtain and maintain commercial general liability insurance covering damages as a result of bodily injury and property damage caused by the Equipment, its condition, possession, maintenance, operation and use, and by the Lessor’s ownership of the Equipment, throughout the term of any Lease Agreement and with a minimum limit of two million dollars ($2,000,000) per occurrence or such other limit as Lessor may reasonably require. Such insurance shall be in a form, an amount, and with insurers approved by the Lessor.
14.3. (a) Canadian Transactions. The Lessee shall obtain and maintain an automobile insurance policy owner’s form, on any Equipment that represents a licensed motorized vehicle legally qualified to be operated on a public road, that is fully compliant with all applicable laws and with a minimum limit of two million dollars ($2,000,000) per occurrence or such other limit as Lessor may reasonably require. The Lessor shall be added therein as a named insured or as an additional insured. Depending on the provincial jurisdiction of the Lessee, the automobile policy will be a Quebec Automobile Insurance Policy Owners’ Form QPF #1 including QEF No. 5a – Lease or Lease Endorsement, an Ontario Automobile Policy OAP #1 including OPCF No. 5 Permission to Rent or Lease automobiles and extending coverage to the specified Lessee(s), a Standard Owners Automobile Policy SPF #1 including SEF No. 5 Permission to Rent or Lease Endorsement covering damages as a result of bodily injury or property damage caused by the licensed motorized vehicle, its condition, possession, maintenance, operation and use and by the Lessor’s ownership of the motorized vehicle, with a minimum limit of two million dollars ($2,000,000) in any one accident or such other limit as Lessor may reasonably require. If the Lessee is renting or leasing the unit for a term of less than one year, the Lessee shall obtain and maintain proof of non-owned automobile insurance in the form of a QPF #6 or an SFP #6 (depending on the Provincial jurisdiction of the Lessee) with minimum limits of two million dollars ($2,000,000) in any one accident or such other limits as Lessor may reasonably require. In addition, such insurance shall not include the endorsements QEF #6-99 or SPF #6-99 (Excluding Long Term Leased Vehicles) if the Lessee is renting or leasing the unit for a term of 30 days or more.
(b) US Transactions. The Lessee shall obtain and maintain a Commercial Auto insurance policy (Business Auto Coverage Form no. CA 00 01 10 13 or equivalent), on any Equipment that represents a licensed motorized vehicle legally qualified to be operated on public roads, that is fully compliant with all applicable laws and with a minimum limit of two million dollars ($2,000,000) per occurrence or such other limit as Lessor may reasonably require. The Lessor shall be added therein as an Additional Insured. Coverage under the Business Auto Coverage Form shall apply to Symbol 1 – Any “Auto” as defined therein and shall at a minimum provide coverage for Hired and Non-owned “Autos”.
14.4. (a) Canadian Transactions. The automobile insurance policy owner’s form must also include coverage for physical loss or damage to the licensed motorized vehicle for an amount sufficient to cover the replacement value of such licensed motorized vehicle and subject to a maximum collision and comprehensive deductible of two thousand and five hundred dollars ($2,500) per loss. The Lessee shall pay all insurance premiums and furnish to the Lessor certificates of insurance evidencing such coverages, to be followed by certified copies of all insurance policies and of all renewals therewith as they come into effect. Each insurer shall agree in writing (a) to give the Lessor at least thirty (30) days prior written Notice of any alteration or cancellation or non-renewal of the policy and (b) as respect to the Lessor’s interest, that such insurance shall not be suspended or voided as a result of any act, omission, concealment or misrepresentation on the part of the Lessee. Proceeds of such insurance, at the Lessor’s option, shall be applied to the replacement or repair of the Equipment or to the payment of the replacement value/value and to any monies due to the Lessor hereunder. The Lessee appoints the Lessor or its assigns, as the Lessee’s attorney of fact to make claims, to sue for, and to obtain payment of checks or drafts for claims or refundable premiums under such insurance policies. If the Lessee fails to procure and maintain such insurance, the Lessor reserves the fact to affect such insurance and pay any premiums, which amount, together with interest, shall then be due and payable forthwith as additional Rental Payments by the Lessee to the Lessor, provided that the Lessor shall in no event be obliged to effect and maintain such insurance. All liability insurance policies required under this Master Lease Agreement shall be on an “occurrence” basis.
(b) US Transactions. The Commercial Auto Insurance policy must also include cover under Section III – Physical Damage Coverage with respect to any physical loss or damage to the licensed motorized vehicle for an amount sufficient to cover the replacement value of such licensed motorized vehicle and subject to a maximum collision and comprehensive deductible of two thousand and five hundred dollars ($2,500) per loss. The Lessee shall pay all insurance premiums and furnish to the Lessor certificates of insurance evidencing such coverages, to be followed by certified copies of all insurance policies and of all renewals therewith as they come into effect. Each insurer shall agree in writing (i) to give the Lessor at least thirty (30) days prior written Notice of any alteration or cancellation or non-renewal of the policy and (ii) as respect to the Lessor’s interest, that such insurance shall not be suspended or voided as a result of any act, omission, concealment or misrepresentation on the part of the Lessee. Proceeds of such insurance, at the Lessor’s option, shall be applied to the replacement or repair of the Equipment or to the payment of the replacement value/value and to any monies due to the Lessor hereunder. The Lessee appoints the Lessor or its assigns, as the Lessee’s attorney of fact to make claims, to sue for, and to obtain payment of checks or drafts for claims or refundable premiums under such insurance policies. If the Lessee fails to procure and maintain such insurance, the Lessor reserves the right to effect such insurance and pay any premiums, which amount, together with interest, shall then be due and payable forthwith as additional Rental Payments by the Lessee to the Lessor, provided that the Lessor shall in no event be obliged to effect and maintain such insurance. All liability insurance policies required under this Master Lease Agreement shall be on an “occurrence” basis.
Any notice, demand, consent or other communication required or permitted hereunder (“Notice”) shall be in writing and may be delivered, or sent by prepaid registered mail, or by fax or other means which produce a permanent written record (“Transmission”). A mailed Notice shall be deemed to have been given three (3) business days after mailing. A delivered Notice shall be effective upon delivery, and the other Transmissions shall be deemed to have been received at the opening of the next business day. Addresses for a Notice shall be those stated on the face hereof and may be changed in accordance with the foregoing.
The Lessor may proceed to make any registrations, publications, inscriptions or filings as deemed necessary in order to protect its rights and interests hereunder or to provide a release thereof, as the case may be, as to the Equipment, the whole at the Lessee’s expense. Except where prohibited by law, the Lessee waives receipt of copies of any financing statement or financing change statement or other like registration, publication, inscription of filing made by the Lessor against the Lessee.
The parties hereto acknowledge and agree that neither party is granting any intellectual property rights to the other party or any third party in this agreement, that nothing in this Master Lease Agreement shall be construed as any such grant of rights, and that each party retains all such intellectual property rights.
17. SURVIVING RIGHTS
Subject to any subsequent Lease Agreement or renewal of any such contract as to the Equipment all terms and conditions of this Master Lease Agreement and of the relevant Lease Agreement, including, but not limited to, the obligation to pay the Rental Payment(s) shall survive and be applicable following the expiry of the term until the Equipment has been returned; the foregoing does not constitute the Lessor’s agreement to extend the Lessee’s rights to keep the Equipment. Notwithstanding the foregoing, Sections 4, 9, 15 to 17, and 19 to 31 hereof survive expiration/termination of this Master Lease Agreement and the relevant Lease Agreement.
18. TIME OF ESSENCE
The prompt and timely execution of its obligations by the Lessee is of the essence of this Master Lease Agreement and of any Lease Agreement.
19. REMEDIES CUMULATIVE
All rights and remedies of the Lessor hereunder shall be cumulative and not exclusive and may be exercised separately or jointly, in any order or combination.
20. GOVERNING LAW, JURISDICTION AND ELECTION OF DOMICILE
In regard to all matters wherein Finloc is a party and/or its rights are in dispute or are to be determined and with respect to any dispute in relation thereto, the Lessee and the Lessor agree that this Master Lease Agreement and any Lease Agreement executed pursuant thereto and any such dispute will be resolved in accordance with the Governing Law and Dispute Resolution clause of the vHub Terms and Conditions, which is hereby incorporated by reference.
With regards to matters not involving Finloc, this Master Lease Agreement and any Lease Agreement executed pursuant thereto are governed and shall be construed and interpreted in accordance with the laws of the Lessor’s jurisdiction of domicile and the federal laws applicable therein. With respect to any question or litigation in relation thereto, the Lessee and the Lessor irrevocably submit to venue and exclusive personal jurisdiction of the courts of the Lessor’s jurisdiction of domicile and each waives all objections to jurisdiction and venue of such courts.
21. WAIVER OF SET-OFF
The Lessee waives and renounces any and all of offsets, compensations, holdbacks and reserves in respect to Rental Payments and any other sums due hereunder and agrees to pay such Rental Payments and other sums due regardless of any claim which may be asserted by the Lessee or on its behalf.
22. LEGAL WAIVERS
To the extent applicable, the Lessee waives, to the fullest extent permitted by law, the application of the provisions of: (i) The Distress Act (Manitoba); (ii) The Limitation of Civil Rights Act (Saskatchewan); (iii) Articles 1848 and 1849 of the Civil Code of Quebec; and (iv) the sale of goods legislation of any applicable jurisdiction. The Lessee agrees that the provisions of this Master Lease Agreement are commercially reasonable.
23. ADDITIONAL DOCUMENTS
The Lessee shall provide the Lessor with any other documents or written confirmations the Lessor may reasonably request with respect to this Master Lease Agreement and to any Lease Agreement.
24. SUCCESSORS AND ASSIGNS
Save as aforesaid, this Master Lease Agreement together with any Lease Agreement shall inure to the benefit of and bind the successors and permitted assigns of the Lessor and to the recognized heirs, executors, successors and assigns of the Lessee. The Lessee declares that it has read this document and that it was given sufficient explanations on the nature and the extent of its obligations hereunder and under all schedules and appendices to this Master Lease Agreement.
25. THIRD PARTY BENEFICIARY
The Lessee and the Lessor mutually acknowledge and agree that the provisions of this Master Lease Agreement shall also enure to the benefit of Finloc, who will be entitled to rely upon those provisions as fully as though it were a party hereto and have standing, in its sole discretion and in its own name, to require the parties to perform their obligations and responsibilities under those provisions, and to assert and protect its rights thereunder as against the parties directly, including but not limited to initiating, defending and otherwise pursuing legal proceedings. The parties further acknowledge that Finloc has accepted such stipulations to its benefit and that they shall not be permitted to amend this Master Lease Agreement in any way if the effect of such amendment is to terminate, diminish or otherwise modify the rights of Finloc as third party beneficiary (without Finloc’s prior written consent).
26. ENTIRE AGREEMENT AND CONFLICT OF PROVISIONS
The vHub Terms and Conditions, this Master Lease Agreement together with any Lease Agreement duly executed by the parties hereto constitutes the entire agreement between the Lessee and the Lessor. Titles of the sections hereof are for reference purposes only and shall not be construed to limit or define in any way the provisions of these sections and shall not affect the interpretation thereof. If any provision hereof or of any Lease Agreement is deemed to be invalid or unenforceable, the remaining provisions shall remain in full force and effect as though the said invalid or unenforceable provision was never a part hereof. In the event that certain terms or conditions hereof conflict with any Lease Agreement, the terms of the Lease Agreement shall be operative and controlling except with regards to the vHub Terms and Conditions, which shall in all cases be operative and controlling.
Neither the Lessor or the Lessee may assign this Master Lease Agreement and any Lease Agreement or delegates its rights pursuant thereto.
28. SOLIDARY LIABILITY
When more than one person is designated as the Lessee or when one or more than one person assumes or otherwise becomes liable for the obligations of the Lessee, their obligations towards the Lessor are solidary (joint and several). Each of them is obliged to perform all of the obligations of the Lessee hereunder or under any Lease Agreement in whole as though they were designated as the Lessee in this contract and may, among other things, be compelled by the Lessor to perform them alone and in totality, each of them waiving and renouncing the benefits of discussion and division. Forfeiture of term incurred by one of these persons may be set up against all of them.
29. EFFECTIVE DATE OF THE MASTER LEASE AGREEMENT
This Master Lease Agreement shall be deemed effective as and from the date of acceptance by the Lessee and the Lessor and remain in force so long as the parties continue to use the Services. A Lease Agreement shall become effective at the time of the applicable Activation and shall terminate at the time of the applicable Deactivation.
The terms, conditions and provisions hereof and of any Lease Agreement, saved as herein provided, shall not be disclosed by the parties hereto without their respective prior written consent. Notwithstanding the foregoing, it is hereby agreed that the Lessor may, for financing or refinancing purposes, or from any total or partial assignment, disclose any information in its possession, the Lessee hereby expressly agreeing to such disclosure.
31. ELECTRONIC SIGNATURE
The Lessee and the Lessor hereby agree to conducting business electronically and accepting this Master Lease Agreement and all related documents electronically via vHub.
Last updated on: May 10th, 2022