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eps canada services inc.

1. Acceptance and Governing Provisions

Each project quote (“Project Quote”) issued by eps Canada Services Inc. (“eps”) is an offer to rent the products and equipment (“Equipment”) and provide the labor and services (“Services”) identified in that Project Quote for a specific project (“Project”). Any Project Quote will be valid only for 30 days from issuance, unless reissued or extended in writing by eps. The proposed customer as indicated on the Project Quote (“Customer”) will be deemed to have accepted a Project Quote as issued if Customer timely returns to eps the signed Project Quote. Upon acceptance, the Project Quote together with these general terms and conditions (“Terms & Conditions”) and any other documents specifically incorporated in the Project Quote by reference or separately agreed to in writing, such as specifications, drawings, or other requirements of Customer, will become a binding contract between Customer and eps (collectively, the “Contract”). eps shall have the right but not the obligation to cancel any Contract if the associated deposit (if any) is not timely received by eps. If Customer objects to a Project Quote or proposes alternate or additional terms, the Project Quote will become a Contract only if and when Customer and eps mutually agree in writing.

2. Changes

Customer or eps may request changes to the Equipment or Services at any time before or during performance of the Project, but no proposed change shall become part of the Contract unless agreed to in writing by both eps and Customer.

3. Rental Term

Unless otherwise specified in the Contract, the rental term is computed on a weekly basis, including any part thereof, beginning upon the departure of the Equipment from eps’ warehouse and ending upon the return of such Equipment to eps’ warehouse. No allowance is made for Saturdays, Sundays or Federal or Provincial statutory holidays. Customer agrees to provide eps a reasonable period for removal of Equipment upon completion of the rental term, not to exceed 24 hours unless otherwise mutually agreed in writing.

4. Shipping and Delivery

Unless otherwise stated in the Contract (i.e., unless Customer has contracted for unloading Services), Equipment will be delivered to Customer’s loading dock (DAP – Incoterms) and Customer will assume responsibility and liability for unloading, installation, dismantling, and loading at conclusion of rental term. eps is not obligated to wait more than two (2) hours beyond each of the times scheduled for delivery and pick-up, and Customer will be responsible for additional charges in the event the Customer is not ready for unloading or pick-up at the agreed-upon time. Customer will be responsible for additional costs of expedited or other special transportation Customer may require as a result of changes to the schedule or for other reasons not caused by eps.

5. Condition of Equipment and Inspection

Customer will be responsible for inspecting all Equipment upon delivery. Unless Customer objects at the time of delivery, it shall be deemed conclusive that all Equipment was delivered and was in good working order when delivered. Customer’s sole and exclusive remedy for non-conforming Equipment, if such non-conformity is noted at the time of delivery to eps, will be to reject the non-conforming Equipment and require eps, at eps’s option and expense (including applicable shipping costs), to either (a) repair or replace the non-conforming Equipment; or (b) credit Customer for the non-conforming Equipment against amounts otherwise due under the Contract. eps reserves the right for any reason to substitute functionally equivalent Equipment for Equipment specified in the Contract. Upon tender of delivery, no allowance will be made for any rented Equipment or portion thereof which is claimed not to have been used by the Customer.

Delivery and Collection of the Equipment & Return of the Equipment

Arrival/departure times as well as set-up times are considered as operating time and are calculated in the same manner. Crane-related downtimes due to strong winds which continuously exceed 1 hour will be charged to Customer at 80 % of the agreed hourly or daily rates as included in the Project Quote – shorter interruptions will be considered normal operating times.

Customer shall ensure that: (a) all access routes, working environment and installation location(s) (the “Site”) for the Equipment are free of all objects that could hinder or impede approaching and working and (b) that the roads to be used or the terrain to be travelled have the necessary level and soil stability. The preparation of the aforementioned places must be carried out in good time by Customer and free of charge for eps. Possible damage to the access roads is at the expense of the Customer.

If eps has undertaken to deliver and collect the Equipment and/or to assemble and dismantle it, the Customer shall ensure that the Site where the Equipment is to be used is accessible and drivable for trucks with a permissible total weight of up to 48,000 lbs and that the Site is suitable for the assembly and use of the Equipment. The Customer shall provide eps with electricity, water and storage facilities at the Site free of charge – insofar as this is necessary for delivery and collection as well as assembly and disassembly. If the Customer does not fulfil the aforementioned obligations and if delivery or assembly of the Equipment cannot take place for this reason, eps is not obliged to wait longer than a maximum of two hours at the Site for the above-mentioned conditions to be met. If delivery and/or assembly cannot take place in such a case, the Customer shall be obliged to bear the costs of further delivery and assembly attempts and shall pay the contractually agreed leasing fee for each day by which delivery of the Equipment or assembly thereof is delayed as compensation. eps is not prevented from asserting further damages.

At the end of the lease term, Customer shall return the Equipment in a cleaned condition or, if eps has undertaken to collect it, in a cleaned condition and freely accessible for collection or dismantling. eps is not obliged to wait longer than two hours for the readiness for dismantling or for collection. Customer shall bear the additional costs of a new dismantling or collection attempt as well as cleaning of the Equipment carried out by eps, insofar as such cleaning is necessary. For each day after the end of the lease term on which Customer does not return the Equipment or make the Equipment available for dismantling or collection, Customer shall owe eps the contractually agreed lease fee for each day of delay as compensation. eps is not prevented from claiming further damages.

7. Proper Use, Damage, Loss or Missing Equipment

Customer warrants that Customer has personnel available or otherwise contracted for who are familiar with the safe and proper unloading, installation, use, dismantling, and loading of the Equipment. Customer will keep the Equipment secure and Customer agrees, apart from customary wear and tear, all Equipment shall be returned to eps clean and in good repair. Customer assumes the risk of loss or damage to Equipment during the rental term, regardless of the cause. Equipment returned by Customer other than as agreed, will be cleaned, repaired, refurbished and/or replaced as necessary by eps at Customer’s expense. Customer is not authorized to perform any repairs without the express consent of eps. All Equipment which cannot be repaired or refurbished at less than the current published list price will be invoiced to Customer at its current published list price. Acceptance of returned Equipment by eps does not constitute a waiver of any of the rights eps has under the Contract. Without limiting the foregoing, Customer will provide eps at no charge for the duration of the rental term a secure location to store eps tools, pallets and other equipment and material used for loading/unloading, installation and dismantling of Equipment and Customer shall be liable for any loss or damage not attributable to eps.

8. Title

Customer agrees that rental of Equipment does not grant Customer any title or property rights in the Equipment, and all title and property rights shall remain with eps. Customer covenants that it shall keep eps’ interest in this agreement and the Equipment free from all liens and encumbrances of any kind whatsoever.

9. Subletting

All Equipment identified in a Project Quote is intended for a specific Project at a specific Site. No part of the Equipment shall be sublet, transferred or assigned by Customer, or removed from the Site, except with the prior written consent of eps.

10. Payment

All prices are quoted, and payments must be received, in Canadian Dollars (CDN). Final invoices are due and payable upon transmission by eps unless otherwise expressly indicated. eps will accept payment by check or other cash equivalent, including electronic funds transfer. Customer is responsible for payment of goods and services, harmonized sales, value added, provincial sales, excise and other applicable taxes and charges imposed by any governmental authority.

11. Cancellation, Reduction or Alteration

The cancellation of a Contract, the reduction of the Service or the subject matter of the Contract or any other changes on the part of the Customer is not possible without payment of compensation to eps due to eps’ preparatory work and keeping appointments free, even in case of termination due to force majeure. Cancellations, reductions of the Service or the object of the Contract or other changes must be made in writing by e-mail within eps’ office hours from Monday to Friday from 09:00 am to 04:00 pm EST. If a cancellation and/or reduction or other change is made outside of these hours, the cancellation shall not be deemed received until the next working day (except Saturday). In the event of any cancelation of the Contract, reduction of the Services or the object of the Contract or other changes, Customer shall pay eps as liquidated damages a sum calculated in accordance with the table below:

Timing of Cancellation, Reduction or Other Change Liquidated Damage
On the day of delivery/collection 100 % of the Contract amount
1 – 3 calendar days before the delivery/collection date 90 % of the Contract amount
4 – 12 calendar days before the delivery/collection date 75 % of the Contract amount
13 – 180 calendar days before the delivery/collection date 50 % of the Contract amount
181 or more calendar days before the delivery/collection date 25 % of the Contract amount

 

If the Contract is cancelled within 5 days of the date of issue, no compensation will be due, except for the agreed fee of 5 % of the Contract amount for the preparation of the offer and concept.
If it is a short-term order within 1 month and the Contract has already been signed and returned, a compensation payment of 90 % of the Contract amount is due if the Contract is cancelled.
The parties agree that the damages as outlined in this Section 11 are not a penalty but represent a genuine and reasonable pre-estimate of the damages that eps will suffer as a result of the happening of the specified event and would be difficult or impossible to quantify upon the happening of the specified event.

12. Liability and Indemnity

Customer is solely responsible for Site design and selection of Equipment and shall be liable for all losses and damages arising from the use or misuse of the Equipment, including any accidents to persons or property arising therefrom. Customer shall indemnify, defend and hold harmless eps and its predecessors, successors, parents, subsidiaries, attorneys, agents, officers, directors, employees, contractors, and other affiliates (“eps Affiliates”) from and against any and all claims, actions, suits, damages and liabilities, including legal fees, arising out of, connected with, or resulting from the rented Equipment and/or its complimentary tools or attachments. This includes, without limitations, the selection, delivery, possession or use of the rented Equipment.

13. Insurance

Customer shall maintain comprehensive, all-risk insurance against loss, theft, damage or destruction of the Equipment in an amount no less than the full insurable value of the Equipment. Customer shall also maintain comprehensive general liability insurance in an amount not less than $1,000,000.00. Whenever Equipment is being rented for a Project, a certificate of insurance naming eps as an additional insured and including eps as a loss payee, must be received by eps before any Equipment is shipped or delivered.

14. Warranty and Limitation

TO THE FULLEST EXTENT PERMITTED BY LAW, EPS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR EQUIPMENT, INCLUDING ANY WARRANTY, REPRESENTATION OR CONDITION, ORAL, EXPRESS, IMPLIED, LEGAL OR STATUTORY INCLUDING, BUT NOT LIMITED TO (A) ANY WARRANTY OR CONDITION OF MERCHANTABILITY, QUALITY OR DURABILITY, (B) WARRANTY OR CONDITION THAT THE EQUIPMENT SHALL BE FIT 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. FURTHER, EPS IS NOT OBLIGATED TO RENDER ADVICE TO THE CUSTOMER OR TO MAKE RECOMMENDATIONS CONCERNING THE USE OF EQUIPMENT OR ANY ASSOCIATED SITE DESIGN, AND EPS ACCEPTS NO RESPONSIBILITY FOR GRATUITIOUS ADVICE OR RECOMMENDATIONS MADE BY EPS PERSONNEL OR ANY LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF SUCH INFORMATION OR DAMAGES ARISING THEREFROM.

15. Damages and Limitation

TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF EPS AND ANY EPS AFFILIATES, IF ANY, UNDER THIS AGREEMENT, OR ARISING OUT OF ANY CLAIM RELATED TO THE EQUIPMENT OR SERVICES, FOR DIRECT DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY EPS FROM CUSTOMER HEREUNDER UP TO THE TIME THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY OCCURRED. IN NO EVENT SHALL EPS OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY BENEFICIARY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES RELATED TO EQUIPMENT OR SERVICES PROVIDED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16. Default

In the event of Customer’s default or breach of any term or condition of this Contract, eps may terminate this Contract and declare the entire unpaid balance immediately due and payable and, in addition to any remedy provided by law, at eps’ sole option, Customer shall: (a) immediately dismantle the Equipment and make it available for loading and transport; (b) permit eps to enter the Site and remove the Equipment; or (c) permit eps to dispose of the Equipment on Site in such manner as eps may determine.

17. General

17.1 Headings
The headings and captions used in these Terms & Conditions are used for convenience only and are not to be considered in construing or interpreting these Terms & Conditions.

17.2 Relationship of the Parties
Customer and eps are independent parties, and nothing in these Terms & Conditions or the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party. Except as otherwise provided in the Contract, eps shall have no right to control Customer’s use and operation of the Equipment.

17.3 Entire Agreement
The Contract, including these Terms & Conditions, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Contract, including Customer’s request for quotation unless specifically incorporated in the Contract. No subsequent terms, conditions, understandings, or agreements purporting to modify the terms of the Contract will be binding unless confirmed in writing by both parties.

17.4 Paramountcy
These Terms & Conditions are the only terms that govern the provision of Services and Equipment by eps to the Customer. These Terms & Conditions prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for a Project Quote or entered into a Contract. The provision of Services or Equipment to Customer by eps does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms & Conditions.

17.5 Priority
Specific terms and conditions on the Project Quote and the other documents comprising the Contract will take priority over any inconsistent provision in these Terms & Conditions.

17.6 Incorporation into Subsequent Contracts
After the first Contract between the parties, these Terms & Conditions will be deemed to be incorporated into every subsequent Project Quote, and acceptance of any subsequent Project Quote by Customer shall be deemed an acceptance of these Terms & Conditions, including any subsequent amendments, in each subsequent Contract.

17.7 Amendment
These Terms & Conditions, as published on the eps website located at www.eps.net at the time of delivery of rental Equipment and/or provision of Services, are the governing terms and conditions between eps and Customer, and may be amended from time to time by eps without further notice to Customer.

17.8 Force Majeure
Neither party shall be excused from timely performance based on acts of God such as rain, storm or other natural disaster or on the failure of performance of third parties such as labor disruptions or failures of third-party contractors or suppliers (“Force Majeure Events”), but eps shall be granted a reasonable extension to any delivery schedule based on Force Majeure Events that interfere with the timely transport of Equipment to the Site, provided that eps: (a) gives prompt notice thereof; and (b) takes all steps reasonably necessary to mitigate the effects of the Force Majeure Event.

17.9 Fuel Surcharge
Quoted prices that include delivery of Equipment are based on prevailing fuel prices in the geographical area in which the Project is occurring. In the event prevailing fuel prices increase by more than 20% between the date of the Project Quote and delivery, eps shall have the right to add a fuel surcharge to the Contract price to offset the increase in the prevailing fuel price.

17.10 Compliance with Laws
Customer shall comply with applicable laws, rules and regulations of the jurisdiction(s) where the Equipment will be used.

17.11 Language
The Customer and eps confirm that it is their express wish that these Terms & Conditions, as well as any other documents relating to this agreement, including but not limited to the Project Quote, Contract, notices, schedules, authorizations, invoices and purchase orders, have been and will be drawn up in the English language only. Les parties aux presentes confirment leur volonte expresse que cette convention, de meme que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rediges en langue anglaise seulement.

17.12 Notices
Unless otherwise provided, any notice required or permitted under this Contract shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or by a nationally-recognized delivery service (such as Federal Express or UPS) or forty-eight (48) hours after being deposited with Canada Post, by registered or certified mail, postage prepaid and addressed to the party at the address set forth in the Contract, or at such other address as may be designated in writing.

17.13 Waiver
The failure of either party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.

17.14 Governing Law.
The Contract shall be governed by, construed under and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to principles of conflict of laws or choice of laws.

17.15 Dispute Resolution and Attorney Fees.
Customer and eps will first endeavor to resolve through good faith negotiations any dispute arising under or relating to the construction, interpretation or enforcement of these Terms & Conditions, or any Contract arising therefrom. If a dispute cannot be resolved through good faith negotiations, the prevailing party in any resulting action or proceeding will be entitled to recover its expenses and costs, including reasonable legal fees, in addition to any other relief that may be granted.

17.16 Venue.
The exclusive venue for any action or proceeding relating to the construction, interpretation or enforcement of these Terms & Conditions, or any Contract arising therefrom, shall be the Provincial or Federal courts located in the City of Toronto, Province of Ontario, Canada. Customer hereby consents to jurisdiction in those courts, and waives any defenses Customer otherwise might have relating thereto.

17.17 Assignment
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either Customer or eps without the prior written consent of the other party, provided however that eps may assign any Contract to any successor of eps or any purchaser of all, or substantially all, of the company’s assets, without further consent.

17.18 Severability
If one or more provisions of these Terms & Conditions or any associated Contract is held to be unenforceable under applicable law, such provision(s) shall be excluded therefrom provided that such severance does not alter the fundamental terms and conditions of any applicable transaction, and the remaining provisions shall be fully enforceable in accordance with their terms.

17.19 Survival
Provisions of these Terms & Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract.

eps canada services inc. Terms and Conditions Effective 4/13/22