1. No terms, representations or warranties express or implied shall be binding on Pacificwest Special Effects Ltd. (“PacWest”) unless expressly set forth in writing herein.
2. The customer (“Customer”) named on the invoice (the “Invoice”) attached to the front of these terms and conditions of sale or lease (as applicable) (the “Terms”), acknowledges and agrees that PacWest is not the manufacturer of the products or equipment being purchased or leased (as applicable) by the Customer (the “Products”), unless otherwise expressly represented herein.
3. PACWEST MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS OR CONDITION OF THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.
4. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE LIABILITY OF PACWEST, IF ANY, ARISING OUT OF THESE TERMS, IS LIMITED TO MONETARY DAMAGES NOT TO EXCEED THE AGGREGATE OF ALL PRIOR PAYMENTS MADE UNDER THESE TERMS BY CUSTOMER TO PACWEST. PACWEST WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY NATURE OR KIND WHATSOEVER.
5. Customer agrees to indemnify and save harmless PacWest from and against all claims, losses, costs and damages which PacWest may suffer, sustain, incur, be, or become liable for or which may be causes by, connected with or have resulted from the use, operation, maintenance or possession of the Products by Customer.
6. Until the purchase price listed on the Invoice is paid in full, title to the Products shall remain in the name of PacWest, but all risk of loss shall remain with the Customer.
7. All monies overdue hereunder shall bear interest in accordance with the interest terms set forth in Customer acknowledges receiving a copy of these Terms from PacWest.
8. Customer acknowledges receiving a copy of these Terms from PacWest.
9. Lease and Term
PacWest hereby agrees to provide Customer, and Customer hereby agrees to rent from PacWest, the Products for the term as specified in the Invoice (the “Term”).
Customer remains in possession of the Products after the date listed for return on the Invoice (the “Due Date”), these Terms shall apply until the Products have been returned to PacWest, or PacWest has, by express agreement in writing, relieved the Customer from its obligations hereunder. Nothing in this subsection 9.2 shall have, or be deemed to have the effect of extending or renewing the Term.
Customer shall pay PacWest the rental amount(s) set forth in the Invoice at such times as may be stipulated in the Invoice (“Rent”).
Customer agrees that its obligation to pay all Rent and any other amounts owing shall be absolute and unconditional under all circumstances. Customer agrees to pay all Rent regardless of any claim in the nature of set off or compensation, which may be made by (or available to) Customer. Customer shall not be entitled to any abatement or reduction of Rent including, but not limited to, abatements or reductions due to any present or future claims of Customer against PacWest or any assignee, under these Terms or otherwise or against the manufacturer of the Products.
11. Place of Use
The Products must be kept and used at Customer’s shipping address specified in the Invoice (the “Location”) and may be used only for the project/job set forth in the Invoice (the “Purpose”). Customer will not remove the Products from the Location without PacWest’s written consent. Customer agrees that the Products will not be taken from the ground in an airplane or any machine used for air travel without the prior written consent of PacWest, notwithstanding that the Purpose may include air travel. The Products shall at all times remain under the immediate control, supervision and direction of Customer.
Customer shall operate, use and preserve the Products in the manner specified by the manufacturer and in accordance with all applicable laws.
The Products must not be used for any illegal, improper or immoral purposes, nor in any place or manner such as to cause the suspension, cancellation, impairment or nullity of any insurance or warranty placed on or in respect of the Products.
Customer agrees not to remove or cover the tag or nameplate on the Products denoting PacWest’s ownership.
CUSTOMER ACKNOWLEDGES THAT PACWEST IS NOT A MANUFACTURER OF THE PRODUCTS. PACWEST MAKES NO REPRESENTATIONS OR WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS OR CONDITION OF THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE OTHERWISE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.
14. Limitation of Liability
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE LIABILITY OF PACWEST, IF ANY, ARISING OUT OF THESE TERMS, IS LIMITED TO MONETARY DAMAGES NOT TO EXCEED THE AGGREGATE OF ALL PRIOR PAYMENTS MADE UNDER THESE TERMS BY CUSTOMER TO PACWEST. PACWEST WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY NATURE OR KIND WHATSOEVER.
15. Repair and Risk of Loss
The Products will at all times in every respect remain at the risk of Customer.
Customer must, at its own expense, keep the Products in good repair. Without limiting the generality of the foregoing, Customer must, in the event of loss, disappearance or theft of the Products, immediately notify PacWest and, at PacWest’s discretion, replace same with similar products or equipment of equal value and condition to the Products and, if requested by PacWest, Customer must execute and deliver to PacWest a valid and effective conveyance and sale thereof.
If replacement as provided in paragraph 15.2 is impossible or if not made within forty-five (45) days of such loss, disappearance or theft, the customer must pay to PacWest, within sixty (60) days of such loss, disappearance or theft, a sum equal to the replacement cost of the equipment, as determined by PacWest.
The customer further agrees to compensate PacWest for any time lost as a result of replacement or the need for making repairs of the equipment.
PacWest or its agents may at any time inspect the Products, and Customer will allow PacWest to enter the Location for such purpose.
17. Liens and Taxes
Customer must keep the Products free of liens, charges, and encumbrances of every nature and kind whatsoever and must pay all fees, taxes, or other which may be levied or assessed, directly or indirectly, on, against, or on account of the Products.
18. Assignment and Subletting
Customer may not, without obtaining the prior written consent of PacWest (which consent may be arbitrarily withheld), assign, transfer, pledge or hypothecate these Terms or any interest herein or in the Products or any part thereof, or sublet the Products or permit the use thereof by any person other than Customer or its employees.
CUSTOMER AGREES TO INDEMNIFY AND SAVE HARMLESS PACWEST FROM AND AGAINST ALL LOSS, COSTS AND DAMAGES WHICH PACWEST MAY SUFFER, SUSTAIN, INCUR, BE OR BECOME LIABLE FOR OR WHICH MAY BE CAUSED BY, CONNECTED WITH OR HAVE RESULTED FROM, THE USE, OPERATION, MAINTENANCE OR POSSESSION OF THE PRODUCTS BY CUSTOMER.
CUSTOMER SHALL AT ITS OWN EXPENSE: (A) INSURE AND KEEP INSURED THE PRODUCTS FOR THE FULL REPLACEMENT COST THEREOF, AGAINST LOSS OR DAMAGE BY FIRE, THEFT, WATER, COLLISION, TRANSPORTATION, ACT OF GOD AND OTHER PERILS AND RISKS AS WOULD NORMALLY BE INSURED AGAINST BY A PRUDENT OWNER AND AGAINST SUCH OTHER RISKS AND PERILS AND IN SUCH AMOUNTS AS PACWEST MAY REQUIRE; AND (B) MAINTAIN COMMERCIAL GENERAL LIABILTY INSURANCE AGAINST ANY LIABILITY IMPOSED BY LAW ON PACWEST OR ON CUSTOMER FOR INJURY TO, OR DEATH OF, PERSONS, OR DAMAGE TO OR DESTRUCTION OF PROPERTY, IN SUCH AMOUNTS AS WOULD BE MAINTAINED BY A PRUDENT OWNER OF THE PRODUCTS, OR SUCH OTHER AMOUNTS AS PACWEST MAY REQUIRE.
ALL POLICIES OF INSURANCE MUST COVER AND PROTECT PACWEST AND CUSTOMER AND MUST CONTAIN AN ENDORSEMENT PROVIDING FOR LOSS PAYABLE TO PACWEST AND CUSTOMER AND ANY OTHER ENDORSEMENTS WHICH PACWEST MAY REQUIRE. CUSTOMER MUST PROVIDE PACWEST WITH EVIDENCE, TO ITS SATISFACTION, OF SUCH INSURANCE BEING IN PLACE FROM TIME TO TIME.
21. Return of Products
At the end of the Term, Customer shall return the Products at its expense to PacWest’ address listed in the Invoice or at such other address as PacWest may require. Acceptance by PacWest of the return of the Products shall not be a waiver by PacWest of any claims it may have against Customer herein.
The occurrence of any of the following events shall constitute an event of default by Customer (a “Default”): (a) if a petition for a receiving order is made or filed against Customer or if Customer makes any assignment for the benefit of creditors or if any proposal is made or petition filed by Customer under any bankruptcy or insolvency law; (b) if the Products are seized under legal process, confiscated, sequestered or attached or if distress is levied thereon and not released or satisfied within ten (10) days thereafter; (c) if the Products are in imminent danger of loss, serious damage or destruction; (d) if Customer fails to pay any amount due under the Invoice; (e) if Customer fails to observe and perform or commits any act in breach of any term, condition or provision of these Terms.
23. Remedies on Default
In the event of a Default, PacWest may, at its option: (a) take possession of the Products wherever located and in such case Customer waives any and all damages occasioned by such taking of possession; and (b) after having taken possession of the Products or without taking possession of the Products, claim by written notice to Customer liquidated damages in an amount equal to the unpaid Rent for the Term, and Customer agrees to pay same upon demand.
24. Early Termination
PacWest shall have the option in its sole discretion to terminate these Terms and obligations of the parties created herein upon 24 hours’ written notice to Customer, whereupon Customer shall immediately return the Products to PacWest, at Customer’s sole expense, in the same condition as first rented and PacWest shall upon receipt and satisfactory inspection of the Products, refund the un-expired portion of any prepaid Rent to Customer.
25. Legal Fees
Customer agrees to pay all reasonable legal fees and expenses incurred by PacWest in protecting its rights under these Terms.
26. Further Assurances
Customer agrees, at its own expense, to promptly upon receipt of PacWest’ written request, to execute and deliver any instrument and to take any action as may reasonably be required by PacWest to perfect and keep perfected as against third parties the interest of PacWest in the Products. Customer authorizes PacWest to record such documents as PacWest may consider appropriate and Customer agrees to pay all costs in connection with same.
27. Overdue Payments
Any overdue amounts set forth in the Invoice or herein shall bear interest in accordance with the provisions of the Invoice.
28. General Contract Terms
Sections 3, 4, 13, 14 and 19 herein shall survive the expiration or earlier termination of these Terms.
All rights and remedies of PacWest hereunder are cumulative and not alternative and may be exercised in any order, sequence or combination.
No term or condition of these Terms may be waived, amended or varied except by writing signed be both parties.
Any forbearance or indulgence by PacWest in any regard whatsoever does not constitute a waiver of Customer’s obligations hereunder unless such waiver is delivered to Customer in writing by PacWest.
Time is of the essence.
Save as otherwise herein expressly provided, these Terms ensure to the benefit of, and is binding upon, the parties hereto, their respective heirs, executors, administrators, successors and assigns.
These Terms will be governed by and interpreted in accordance with the laws of British Columbia.