(i) “Agreement”: means the following terms and conditions which will govern Equipment sales and rentals.
(ii) “Client”: means the person, firm, partnership, company or other legal entity buying or renting the Equipment from Solotech, as per the Invoice.
(iii) “Confirmation”: means any document, e-mail or verbal exchange between Solotech and Client in which Client confirms his acceptance of the Quotation.
(iv) “Delivery”: means the rented Equipment delivery date mentioned in the Quotation;
(v) “Deposit”: means the amount to be deposited by Client as per the Quotation or Invoice.
(vi) “Equipment”: means, as applicable, any lighting, video, audio and/or rigging equipment owned by Solotech which is either rented or sold to Client, as described in the Quotation or Invoice;
(vii) “Event”: means, where applicable, the tour or event mentioned in the Invoice for which Solotech agrees to provide the Services;
(viii) “Fees”: means the fees for Services provided by Solotech as per the Invoice;
(ix) “Party”: means Solotech or Client individually.
(x) “Quotation”: means the quotation to which these Terms and Conditions shall apply.
(xi) “Services”: means the Equipment rental and the services provided by Solotech for set-up, preparation, installation and operation of Equipment;
(xii) “Solotech”: means Solotech Inc. or any of their affiliates, as applicable as indicated in the Quotation or Invoice.
(xiii) “Term”: means the Equipment rental term. The Term shall be effective as of the Confirmation and shall terminate at the end of the Event, upon return of the rented Equipment and it being in Solotech’s control and supervision.
2. GENERAL. This Agreement shall constitute the entire contract between Client and Solotech with respect to the sale or rental of the Equipment mentioned in the Invoice. Any additional terms, including any terms and conditions of Client, are non-binding, unless such terms are in a written form, identified as an amendment to the Invoice and signed by Solotech and Client.
3. PAYMENT. Unless otherwise provided in writing, Client shall pay Solotech all the amounts contained in the Invoice no later than thirty (30) days after the invoice date. Additional invoices will be sent for variable costs, if any. The Fees are comprised of the following: (i) Variable costs for Solotech’s personnel Services, on a “time and material” basis; and (ii) All other expenses required for the provision of the Services. Client shall pay all additional invoices no later than thirty (30) days following their issuance. All taxes and rented Equipment transportation costs, where applicable, from and to Solotech’s warehouse, will be charged to Client in addition to Fees. The existence of any damage to the rented Equipment, while under Client’s control or supervision, shall not cause or justify Client’s failure or delay in making the required payments to Solotech under this Agreement. Solotech shall be under no obligation to repair or replace damaged, lost or stolen rented Equipment if there is an existing payment default by Client. The Client shall pay an annual interest of twenty-four percent (24%) per year on any owed amount which remains unpaid after the due date.
4. DEPOSIT. When required either in the Quotation or in the Invoice, Client agrees to pay the Deposit as per the Quotation, and such Deposit shall be payable no later than thirty (30) days before delivery of any sold or rented Equipment. For sold Equipment, the portion of the Deposit amount applicable to the sale shall be deducted from the sale price unless there is an existing payment default by Client. For the rented Equipment, the portion of the Deposit applicable to the rental will be refunded within thirty (30) days after the end of the Event. Notwithstanding the foregoing, if Client causes (directly or indirectly) damages to the rented Equipment by any action or omission, or if the Agreement is terminated as per its terms, Solotech will retain the Deposit, in addition to any termination fees.
5. PRICES VARIATION. Subject to the following, prices set forth in the Invoice shall be fixed (with no price increase or adjustment). Unless otherwise specified in the Invoice, the sale and rental price shall not include packaging and transportation costs, taxes, duties or brokerage fees, nor any other related charges whether same are imposed under any present or future law, now or hereafter in force. Client must provide Solotech with a written notice of at least thirty (30) business days before the Event for any requested changes in Delivery or Services. Solotech may refuse any requested change at its sole discretion, acting reasonably. If said changes are accepted, Solotech shall adjust the Fees accordingly.
6. DELIVERY. Unless specified otherwise in the Quotation or the Invoice, all sold or rented Equipment shall be delivered to Client’s shipping address as mentioned on the Quotation or Invoice. The sold or rented Equipment shall be deemed to have been delivered and accepted upon delivery to Client.
7. TITLE AND RISK OF LOSS. Title to the sold Equipment shall pass to the Client upon full payment in accordance with this Agreement. No title shall pass to Client for the rented Equipment. The risk of loss and damage to the sold or rented Equipment shall be borne by the Client (i) upon Client’s reception of the sold or rented Equipment to the location mentioned in the Quotation or in the Invoice, if Solotech delivers the sold or rented Equipment to Client, or (ii) if Solotech does not deliver the sold or rented Equipment, upon their arrival at any agreed location and as soon as they are under the supervision of Client or Client’s agents or representatives.
8. RENTED EQUIPMENT INSPECTION/ACCEPTANCE AND REPAIR. Upon Delivery, Client shall inspect the rented Equipment and immediately notify Solotech of any rented Equipment missing or not in good working condition. Unless Solotech is notified in writing, Client shall be deemed to have accepted the rented Equipment without any warranty (express or implied) from Solotech (“Acceptance”). After Acceptance, the cost of all necessary repairs to the rented Equipment following the act, omission, negligence or willful misconduct of Client, its employees, agents or subcontractors (including any third parties having access to the rented Equipment at any time) shall be borne by Client. If during the Event, any rented Equipment supplied by Solotech is damaged or becomes unusable, Solotech undertakes to provide an equivalent replacement. However, if the damage to the rented Equipment was caused by Client or by any of its employees or representatives, Client will fully reimburse Solotech for all replacement costs. Client acknowledges that it shall be solely responsible for the rented Equipment i) from Delivery until the end of the Event, when under its control and supervision and ii) during any transit period, including rented Equipment storage and transportation. Client shall at all times protect and preserve the rented Equipment from damage or loss and provide a safe environment, in accordance with Solotech’s instructions and those of the rented Equipment’s manufacturer. Client shall not make any alterations, changes, modifications or improvements to the rented Equipment without Solotech’s prior written consent, nor remove or cover any nameplate, bar code, stamp or insignia on the rented Equipment without prior written permission from Solotech. Solotech may at any time, upon reasonable notice, inspect the rented Equipment where it will be held. Solotech shall retake possession of the rented Equipment without delay if, in Solotech’s reasonable opinion, same is being used improperly. Client shall use, operate, protect and maintain the rented Equipment i) in good operating order, condition, in the same condition as when received, except for ordinary wear and tear; ii) consistent with prudent industry practice; and iii) in compliance with all applicable laws, rules, regulations and manufacturer’s recommended procedures. Client shall promptly notify Solotech in writing of any occurrence of any damage to, or loss, theft or destruction of any rented Equipment.
9. SOLD EQUIPMENT WARRANTY. Provided that the Client has not modified the sold Equipment nor removed the sold Equipment’s serial number, Solotech warrants that the sold Equipment: (i) shall conform to the specifications, if any, set forth in the Invoice; (ii) shall be free of defects in material, workmanship or design; (iii) shall be of merchantable quality and are fit for the intended purpose for which they are manufactured; and (iv) shall be new, unless otherwise specified in the Invoice. This warranty is not applicable (i) if defect to sold Equipment is due to improper operation or maintenance of the sold Equipment by or on behalf of the Client; (ii) in case of normal wear and tear, under normal usage; (iii) if defect to sold Equipment is caused by a Force Majeure event; or (iv) any repair or maintenance of the sold Equipment was done by any person other than Solotech. If a sold Equipment fails to comply with any specification of the Quotation or Invoice, Solotech shall, following a written notice of such defect sent by Client within a reasonable delay, promptly correct such defect by replacing the sold Equipment, at Solotech’s expense.
10. LIMITATION OF LIABILITY. Notwithstanding anything else in this Agreement, in no event shall Solotech be liable for any punitive, incidental, indirect, special or consequential damages by reason of any act or omission including, without limitation, any loss of anticipated or actual revenues, income or profits, costs of capital or any similar losses or damages, loss of use, data, business or goodwill, interruption in use or availability diminution of value. Solotech’s aggregate liability to Client for any claim or recovery of any kind hereunder shall in no event exceed the price mentioned in the Invoice for the sold or rented Equipment giving rise to such claim.
11. SET-OFF/DEDUCTION. No deduction shall be allowed without the prior written authorization of Solotech. Any deduction not previously agreed on shall be considered as a failure to pay justifying the suspension of deliveries. Solotech reserves the right to recover, by any and all means at its discretion, sums that would thus be deducted. Moreover, Solotech shall be entitled to require cash on delivery for subsequent orders.
12. CONFIDENTIAL INFORMATION. Each Party and its representatives may be exposed to information of a confidential or proprietary nature which is either marked as confidential or provided under circumstances reasonably indicating it is confidential (“Confidential Information”). Each Party agrees to (i) hold such Confidential Information in confidence using the same degree of care normally used to protect its own proprietary and/or confidential information within its own organization, but not less than a reasonable degree of care; (ii) restrict disclosure of such Confidential Information solely to its representatives with a need to know in connection with the Quotation or Invoice (and provided that such persons are advised of the obligations assumed herein and are bound by obligations of confidentiality and non-use to protect the disclosing Party’s rights and interest hereunder), and (iii) shall not disclose such Confidential Information to any third party that is not a representative of receiving Party, without prior written approval of the disclosing Party. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information as required by law.
13. FORCE MAJEURE. Neither Party shall be liable to the other for default or delay in performing its obligations under the Agreement if such default or delay is caused by any occurrence beyond its reasonable control, including natural phenomena (“Force Majeure”). Force Majeure does not include events that were reasonably foreseeable or were caused by the Party claiming the Force Majeure. If a Party is delayed or prevented from performing due to Force Majeure, that Party must inform the other Party in writing as soon as practicable. If the Force Majeure lasts, or is reasonably expected to last, more than thirty (30) days, the non-breaching Party may immediately terminate the Agreement by giving written notice to the other Party. Otherwise, both parties’ rights and obligations as per the Agreement shall be suspended for the period of the Force Majeure and a new agreement shall be agreed upon, in writing, between the Solotech and Client.
14. TERMINATION. Solotech may immediately terminate the Agreement: (a) in the event that Client fails to pay any amount due to Solotech as per the Invoice and such payment default remains uncured for fifteen (15) days following written notice by Solotech, (b) if the Client is or becomes insolvent, files for bankruptcy, makes an assignment for the benefit of its creditors or if similar proceedings involve Client or (c) if the Client fails to maintain in full force and effect the insurance coverages required in the Agreement. Client may terminate the Contract upon providing Solotech a fifteen (15) day notice. If termination of the Contract by Client or Solotech terminates any Services, Solotech shall be entitled to compensation for any losses following cancellation of the Event. Additionally, Client agrees to pay Solotech a termination fee equivalent to no less than twenty-five percent (25%) of Fees in addition to any and all other amounts owed by Client to Solotech. In case of termination, Solotech or any of its representative shall be able to recover the rented Equipment or unpaid sold Equipment. In addition to termination fees, Client shall pay Solotech: (i) total cost for the return of the rented Equipment to Solotech’s warehouse (including costs of repossessing, reconditioning and storing the rented Equipment and transportation costs), and (ii) travel expenses incurred for Solotech’s personnel to return home, or to such other location specified by Solotech. Termination of this Agreement shall not relieve or release a Party from any rights or obligations which should by their nature survive to such termination, including payment obligations.
15. INSURANCES. Client shall be responsible for the loss or damage to the rented Equipment caused by any act, omission, negligence or willful misconduct of Client or its employees, agents (including transportation company hired by Client) or subcontractors. It shall be responsible for the rented Equipment at all times from the Delivery until return of rented Equipment to Solotech’s control and supervision. Client shall maintain during the Term, at its sole expense, an insurance covering the rented Equipment. Such insurance shall be in an amount sufficient to cover i) the full new replacement value of rented Equipment and ii) Solotech’s rental charges incurred, if any, until the rented Equipment is repaired or replaced. Solotech (and its affiliates) shall be appointed as additional insured for such insurance. Client shall also maintain during the Term, at its sole expense, or shall ensure is maintained, a commercial general liability insurance with general aggregate limits of not less than $10,000,000 and personal injury and advertising injury limits of not less than $10,000,000 (and per occurrence limits of not less than $5,000,000). Solotech shall be named as additional insured on such policy or policies. Furthermore, Client shall secure cancellation insurance coverage for Event cancellation, for any cause or reason, and Solotech shall be named as an additional insured. Client must provide the certificates of insurance attesting the above-mentioned coverages within the earlier of: i) ten (10) days after the Confirmation or ii) five (5) days before Delivery but in all cases, before the beginning of the Event. All above insurance shall contain a waiver of subrogation against Solotech. Should Client fail to secure or maintain such insurance, Solotech may secure such insurance and Client shall reimburse Solotech on demand for such costs.
16. REMEDIES. The warranty set forth in the Agreement shall be the sole and exclusive remedy provided by Solotech. All other implied and statutory warranties and remedies are hereby expressly excluded.
17. ASSIGNMENT. Client may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Solotech. Solotech may assign or otherwise transfer its rights and obligations under this Agreement without the Client’s prior consent.
18. INTELLECTUAL PROPERTY. Client undertakes to not use in any way Solotech’s, the sold or rented Equipment’s name, logo, picture, brands, trade-marks. The Client agrees that Solotech may use Client’s name or logo for marketing purposes, including on Solotech’s web site, social medias, public relations and communications activities.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the province of Quebec (Canada), without regards to the conflict of law provisions.