Terms of Service
Last revised: January 1st, 2023
EQPME (PRONOUNCED “EQUIP ME”) IS A DYNAMIC SOFTWARE TECHNOLOGY COMPANY THAT HAS BUILT A GAME-CHANGING ONLINE MARKETPLACE AND E-COMMERCE PLATFORM TO FACILITATE CONNECTIONS BETWEEN OUR USERS IN THE CONSTRUCTION INDUSTRY. OUR MISSION IS LASER-FOCUSED ON INNOVATING AND STREAMLINING THE ENTIRE EQUIPMENT RENTAL AND ACQUISITION PROCESS TO EMPOWER OUR USERS TO WORK SMARTER, SO THEY CAN FOCUS ON BUILDING THEIR CORE BUSINESSES.
IMPORTANT NOTICE: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND EQPME CAN BE BROUGHT, INCLUDING A MANDATORY ARBITRATION PROVISION (SEE SECTION 21 BELOW) THAT ALSO INVOLVES A WAIVER OF JURY TRIALS AND CLASS ACTIONS. PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, AS IT IMPACTS YOUR LEGAL RIGHTS AND REQUIRES YOU TO RESOLVE ALL DISPUTES WITH EQPME ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION.
BY ACCESSING OR USING THE SERVICES IN ANY CAPACITY, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS, AS WELL AS ANY AND ALL POLICIES, WHETHER OR NOT YOU BECOME A USER. BY ACCESSING THE SITE, ANY APPLICATION(S), OR OTHERWISE INTERACTING WITH THE PLATFORM IN ANY WAY, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO, AND MUST IMMEDIATELY REFRAIN FROM USING, THE SITE, ANY RELATED APPLICATIONS AND/OR THE SERVICES AS FURTHER DEFINED HEREIN.
These terms and conditions constitute a binding legal agreement (the “Terms”) which govern access to and use of any EQPME INC., and its successors, assigns, subsidiaries or affiliates (collectively, “Eqpme”, “we”, “our” or “us”): (a) website(s), information, blog(s), products and services (collectively, the “Site”) and (b) mobile application(s) (collectively, “Applications”) by individuals or entities, as applicable, who (i) utilize the Platform in any way, shape or form, (ii) subscribe to, or purchase, as applicable, any form of services offered by Eqpme (“Subscriptions”) or (iii) create an account (“Account”) either as: (i) a renter or purchaser, as applicable, of Equipment (defined below) and their Authorized Users, if applicable (collectively, a “Customer”), (ii) an owner of Equipment and their Authorized Users, if applicable (collectively, an “Owner”) or (iii) both. For the purpose of these Terms, Customers and Owners shall hereinafter be collectively referred to as “Users”. Collectively, the Site, Applications, Platform and Subscriptions shall be referred to herein as the “Services”. By using the Services, Users accept these Terms (whether personally, for or on behalf of an entity, or otherwise). For the purposes hereof, an “Authorized User” includes any entity, whether an individual (i.e. natural person) or otherwise, whether an employee, business partner, contractor, agent or other representative of a User who is registered or permitted by said User to use any one (1) or more of the Services for, or on behalf of, said User.
We reserve the right to update and change these Terms at any time and for any reason in our sole, absolute and unfettered discretion. If Eqpme makes changes to the Terms, it will provide you with notice of such changes by updating the date at the top of these Terms. You are hereby advised to periodically check these Terms for any updates or changes that may impact you.
Supplemental terms may apply to certain options or offers available through the Services from time to time such as policies for a particular rental booking or sale, event, program, activity or promotion. Supplemental terms are in addition to, and shall be deemed to be an integral part of, the Terms for the purposes of the applicable option or offer. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable option or offer only.
Any and all policies of any nature or kind whatsoever adopted by Eqpme from time to time relating to the use of the Services including, but not limited to, the following policies enumerated and hyperlinked below (collectively, “Policies”) also apply to you and form an integral part of the Terms and are incorporated herein by reference, as same may be amended from time to time. For clarity, reference to the Terms shall also include any and all Policies adopted by Eqpme from time to time. Should a determination be required at any time relating to your compliance herewith or with any Policies (individually or collectively, each a “Determination”), you agree that Eqpme shall make such Determination in our sole, absolute and unfettered discretion. You also hereby represent and warrant that you have reviewed each Policy and hereby covenant and agree to be bound thereby as a material condition of using the Services.
Users acknowledge and agree that links to certain select Policies can be found below for ease of reference only and that the below is not an exhaustive list:
- Pricing Policy
- Discrimination and Community Policy
- Eligibility & Maintenance Policy
- Extras Policy
- Fuel Policy
- Hour Policy
- Cancellation and Refund Policy
Eqpme provides Users with access to an online equipment marketplace platform (the “Platform”) that allows you to connect with other Users for the purposes of facilitating any form of permitted transaction involving Equipment, as same may be determined by Eqpme from time to time in our sole, absolute and unfettered discretion, through the Services including, without limitation, the Platform (individually or collectively, a “Transaction”) which may include, without limitation, the leasing, rental, acquisition or sale of Equipment as defined below. The Platform enables, amongst other things: (i) Owners to publish information about Equipment for rent, sale or as may be otherwise permitted in contemplation of entering into a Transaction with a Customer; (ii) Customers to search the Platform for Equipment to rent and/or purchase or engage in such Transaction as may be otherwise permitted from time to time; and (iii) any other individual or entity who opens an Account and/or utilizes or accesses the Platform with or without an Account to view and interact with same. As the provider of the Platform only, Eqpme does not own, control, offer, manage or independently verify any part or portion of the following pieces of information:
Details regarding any Equipment listed on the Platform;
Information provided by any Owner;
Information provided by any Customer;
Content of any Transaction including, but not limited to, any form of rental, sale or other type of agreement that may be required by an Owner; or
Content or adequacy of any insurance and/or loss damage waiver of any kind or description, if any, that may be required by an Owner as part of any Transaction.
Without limitation, Eqpme’s Services permit Users to connect with each other through:
(i) traditional-style online marketplace interactions (where Owners post and/or advertise Equipment for rent, lease, sale or auction that Customers may submit requests or bids on, as applicable, for prescribed Transaction terms); and
(ii) reverse-style online marketplace interactions (where Customers post and/or advertise Equipment leads or requests for rent, lease, sale or auction that Owners may submit proposed Transaction terms for acceptance by Customers).
In addition, subject to these Terms, Eqpme’s proprietary e-Commerce engine (the “Engine”) can be leveraged by Owners to: (a) create online storefronts (“Storefronts”) using various service tier levels to offer their Equipment to the public for Transactions and/or (b) embed Equipment listings within their own websites to enable Users to complete Transactions powered by the Engine.
YOU UNDERSTAND THAT EQPME DOES NOT OWN, MANUFACTURE, STORE, REPAIR, MAINTAIN OR INSPECT ANY EQUIPMENT LISTED AND/OR TRANSACTED THROUGH OUR SERVICES. EQPME IS NOT AN EQUIPMENT RENTAL, SALE OR AUCTION COMPANY. EQPME PROVIDES ONLY THE CHANNEL THROUGH WHICH INDEPENDENT OWNERS LIST THEIR EQUIPMENT AND ENGAGE IN TRANSACTIONS WITH CUSTOMERS SUBJECT TO THESE TERMS. ANY LEGAL CLAIM WHATSOEVER RELATED TO ANY PIECE OF EQUIPMENT INVOLVED IN A TRANSACTION FACILITATED THROUGH OUR SERVICES MUST BE BROUGHT DIRECTLY AGAINST THE OWNER OF SAID EQUIPMENT. YOU IRREVOCABLY RELEASE EQPME FROM ANY AND ALL CLAIMS RELATED TO EQUIPMENT RENTED, LEASED, AUCTIONED OR SOLD THROUGH OUR SERVICES INCLUDING FOR DEFECTS AND MISREPRESENTATIONS.
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, USERS ACKNOWLEDGE AND AGREE THAT:
EQPME STRICTLY PROVIDES THE SERVICES TO INTRODUCE, CONNECT AND FACILITATE PAYMENT BETWEEN OWNERS AND CUSTOMERS FOR ANY EQUIPMENT TRANSACTION PERMITTED THROUGH THE PLATFORM FROM TIME TO TIME. USERS MAY ENGAGE IN SUCH TRANSACTIONS AS THEY DEEM FIT SUBJECT TO ANY LIMITATIONS SET OUT HEREIN. FOR CLARITY, REFERENCE TO THE PLATFORM SHALL INCLUDE ANY EMBEDDED LISTINGS INCORPORATED INTO ANY OTHER WEBSITE OR APPLICATION UTILIZING, LEVERAGING OR OTHERWISE INTEGRATING THE ENGINE;
NOTWITHSTANDING ANYTHING ELSE HEREIN CONTAINED, EQPME IS NOT A PARTY TO ANY AGREEMENTS CONCLUDED BETWEEN ANY OWNER AND ANY CUSTOMER RELATING TO ANY FORM OF TRANSACTION INVOLVING THE SERVICES IN ANY WAY, SHAPE OR FORM IRRESPECTIVE OF WHETHER OR NOT SAID TRANSACTION WAS COMPLETED THROUGH THE PLATFORM IN WHOLE OR IN PART. EQPME SHALL NEVER BE CONSTRUED TO BE A PARTY TO ANY TRANSACTION INVOLVING EQUIPMENT, AS DEFINED IN THE TERMS, FOR ANY PURPOSE SAVE AND EXCEPT TO PERFORM ITS CORE FUNCTION AS SOFTWARE SERVICE PROVIDER, PAYMENT FACILITATOR AND COLLECTOR (IF AND AS REQUIRED). ALL USERS HEREBY AGREE TO FULLY INDEMNIFY AND HOLD EQPME COMPLETELY HARMLESS FOR ANY AND ALL MATTERS RELATED TO ANY LEASE OR SALE TRANSACTION FOR WHICH THE SERVICES WERE UTILIZED;
EQPME IS NOT A PARTY TO ANY LEASE, RENTAL AGREEMENT, RENT-TO-BUY AGREEMENT, AGREEMENT OF PURCHASE AND SALE AND/OR ANY OTHER FORM OF LEGAL AGREEMENT RELATING TO ANY TYPE OF TRANSACTION FACILITATED THROUGH THE PLATFORM WHICH MAY BE CONSTITUTED AS A RESULT OF THE USE OF, OR RELIANCE ON, THE SERVICES INCLUDING, WITHOUT LIMITATION, EQPME’S STANDARD RENTAL TERMS. THIS STATEMENT SHALL NOT BE CONSTRUED AS INCLUDING SUBSCRIPTION AGREEMENTS BETWEEN A USER AND EQPME.;
THE ACT OF PROVIDING CUSTOMER SERVICE AND/OR TECHNICAL SUPPORT TO USERS OF THE PLATFORM TO, WITHOUT LIMITATION, CONNECT OR FACILITATE A TRANSACTION OF ANY KIND RELATES TO THE SERVICES ALONE AND NOT THE EQUIPMENT ITSELF; AND
EQPME HAS NO CONTROL OVER, AND IS NOT LIABLE FOR, THE CONDUCT OF ANY OTHER USERS OF THE SERVICE, OR ANY THIRD-PARTY PROVIDERS OF RELATED GOODS OR SERVICES RETAINED BY USERS INCLUDING, WITHOUT LIMITATION, OWNERS, CUSTOMERS, PURCHASERS, CARRIERS, DELIVERY PERSONNEL, EQUIPMENT MANUFACTURERS, EQUIPMENT OPERATORS AND ANY OTHER THIRD-PARTY SERVICE PROVIDERS RETAINED BY ANY USERS.
The Platform is accessible through any of the Services including, without limitation: (i) online using Eqpme’s Site at eqpme.com (or such other similar domain(s) as may be owned and operated by Eqpme from time to time, as applicable, including, but not limited to, eqpme.pro, eqpme.ca, eqpme.co, eqpme.org, therentalboard.com, etc.) and (ii) through our available Applications. By accessing or using the Services, including by communicating with us or other Users, you agree to comply with, and be legally bound by, the provisions of these Terms and applicable Policies, whether or not you become a registered User of the Services or Account holder.
When we refer to “Equipment” in the Terms this will cover all classes of equipment, machinery, vehicles, tools, accessories, manuals and any ancillary items which Eqpme, in its sole, absolute and unfettered discretion, allows: (a) Owners to offer for rent, sale or otherwise and (b) Customers to offer to rent, purchase or otherwise engage in a Transaction, from time to time. For clarity, Equipment does not include anything which is supplied by the Owner as part of the online marketplace listing to facilitate the rental, sale or any other permitted Transaction through the Platform of the Equipment (i.e. pictures, documentation, etc.).
The Services include a “Message Center”. By using our Message Center, Users can arrange a reservation of a rental, sale or any other permitted Transaction of Equipment. Users can also share documentation including, but not limited to, pictures, lease/sale agreements and/or additional Transaction terms, etc. pertaining to the contemplated reservation, sale or otherwise.
ALL USERS AGREE THAT, SUBJECT TO THESE TERMS, ANY FORM OF LEASE, RENTAL AGREEMENT, RENT TO BUY AGREEMENT, AGREEMENT OF PURCHASE AND SALE OR OTHER LEGAL AGREEMENT, AS APPLICABLE, RELATING TO ANY TRANSACTION (NOT INCLUDING THE PURCHASE OF ANY FORM OF SUBSCRIPTIONS FROM EQPME)ON THE PLATFORM IS CONCLUDED DIRECTLY BETWEEN THE OWNER OF THE SUBJECT EQUIPMENT AND THE CUSTOMER IN SUCH MANNER AS THE RESPECTIVE PARTIES DETERMINE, WHETHER THROUGH THE MESSAGE CENTER, EXCHANGE OF FORMAL DOCUMENTS, OR RELIANCE ON THE EXPRESS TERMS OF THE SUBJECT EQUIPMENT LISTING AS POSTED BY THE APPLICABLE OWNER ON THE PLATFORM.
It is the sole responsibility of the Owner and Customer to directly negotiate the terms of any Transaction including, without limitation, the lease or sale of any particular item(s), and to verify any information either the Owner or Customer, as applicable, may require in order to conclude any form of legal agreement as between themselves to facilitate any such Transaction.
Users acknowledge and agree that:
(i) the standard Rental Terms shall apply with respect to any rental or lease Transaction completed using the Services;
(ii) Owners and Customers are free to create and use their own rental terms and/or modify the Rental Terms as they deem fit subject to the restriction that such terms, whether Owner Terms as defined below or not, must not conflict with the Rental Terms or the Terms;
(iii) the Rental Terms form an integral part of the Terms;
(iv) all obligations under the Rental Terms (including all payment obligations) are obligations between the Customer and Owner and are not made by and do not legally bind Eqpme whatsoever;
(v) it is the Users responsibility to review both the Terms and the Rental Terms in advance to determine whether same are suitable for your purpose; and
(vi) the Rental Terms, as a standalone or supplementary contract between a Customer and an Owner, is to be used at the respective Users’ sole risk and expense; and
(vii) Customers may be required by Owners to enter into one (1) or more separate agreements, waivers or terms and conditions prior to renting or purchasing Equipment and an Owner may place additional restrictions on the Customer’s booking, product or service through the Platform.
The Rental Terms, or other separate waivers or agreements, are not a substitute for independent legal advice. Users are advised to obtain local legal counsel to prepare, review and revise as necessary any form of rental agreements to ensure compliance with federal, provincial, state and/or local law and their particular circumstances. Users hereby covenant and agree to fully indemnify Eqpme for any and all claims, losses, costs, damages, liabilities or expenses (including legal fees on a solicitor-client basis) which may be incurred by us as a result of any form of reliance upon the Rental Terms by Users without the provision of such independent legal advice.
When using the Services as a Customer to transact a rental or lease of Equipment with an Owner, the Services will present the Customer a Transaction summary page that confirms all details of the rental or lease. By clicking “I Agree” (or any other means of acceptance presented by the Services from time to time), the Customer agrees that the Rental Terms, any applicable Owner Terms and the Transaction summary page become part of the Terms.
As further set out in Section 18 herein, Eqpme does not guarantee: the existence, quality, safety or legality of items listed or advertised on the Platform; the truth or accuracy of Users’ content, listings or representations; the ability of Owners to conduct Transactions; the ability of Customers to pay for Transactions or that an Owner or Buyer will actually complete a Transaction. Any guidance that is, or may be, provided at any time and from time to time by Eqpme as part of our Services is solely informational.
USERS ACKNOWLEDGE AND AGREE THAT EQPME DOES NOT ACT AS AN AGENT IN ANY CAPACITY FOR EITHER THE OWNER OR CUSTOMER NOTWITHSTANDING ITS HOLDING OF FUNDS RELATED TO ANY GIVEN TRANSACTION. THE SAME APPLIES TO STOREFRONTS POWERED BY EQPME’S ENGINE IRRESPECTIVE OF THE OWNER’S APPLICABLE SERVICE TIER LEVEL. EQPME DOES NOT HOLD FUNDS IN TRUST AND/OR IN ESCROW. FUNDS TRANSITING THROUGH EQPME ARE AUTOMATICALLY DELIVERED BY ITS THEN CURRENT THIRD-PARTY SERVICE PROVIDER (CURRENTLY STRIPE) AND EQPME ASSUMES NO RESPONSIBILITY FOR DELIVERY OR OTHER DISTRIBUTION OF FUNDS WHATSOEVER.
3. Independent Legal Advice/Representation
Eqpme strongly recommends all parties using the Services retain appropriate legal representation before entering into any form of legal agreements of any kind or description whatsoever.
Eqpme hereby advises all Users to consult a solicitor and obtain independent legal advice and/or independent legal representation concerning the advisability of: (i) using the Services in any way, shape or form and being bound by these Terms and/or (ii) entering into any Supplemental Agreement with Eqpme before executing it. If any User elects to use any of the Services or execute any Supplemental Agreements with Eqpme absent such independent legal advice and/or independent legal representation, then this shall constitute an express waiver of the right to same and such User agrees that it is hereby estopped from claiming it was not afforded this opportunity. All Users further acknowledge that any information provided by Eqpme is not to be construed as legal, tax or any other expert advice and Users are cautioned not to rely on any such information without seeking legal, tax or other expert advice.
WE TAKE NO RESPONSIBILITY FOR ANY ATTEMPTED OR PURPORTED USE OF, OR RELIANCE ON, THESE TERMS AND/OR THE USE OF THE SERVICES TO PROVE OR DISPROVE THE EXISTENCE OF ANY CONTRACTUAL RELATIONS BETWEEN ANY USER AND ANY OTHER USER.
Eqpme reserves the right, in our sole, absolute and unfettered discretion, to modify the Services, these Terms, or any Policies at any time, without notice and for any reason whatsoever. If we modify, in whole or in part, any of these Terms, we will post the modification on our Site and will also update the “Last Revised” or “Last Updated” date at the top of these Terms. By continuing to access or use the Services after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your sole recourse is to stop using and accessing the Services and close your Account.
If you have any questions for us concerning these Terms, or Eqpme in general, please contact us at email@example.com.
The Services are intended solely for persons who are of legal age in their relevant jurisdiction to rent and/or purchase Equipment offered via the Services. As a User, you represent and warrant that you are of legal age in your resident jurisdiction and competent to agree to these Terms. You are responsible for understanding and complying with all applicable laws, rules, regulations and contracts with third parties that apply to your rental and/or sale of Equipment.
Any use of the Services by anyone that does not meet the legal age requirement in their jurisdiction is expressly prohibited. Eqpme may, in its sole, absolute and unfettered discretion, prohibit you from accessing or using the Services, in which case, you are not permitted to access or utilize same. If Eqpme has previously prohibited you from using the Services, you are not permitted to access the Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
The Services have a range of features and functionalities. Not all Services or features will be available to all Users at all times and we are under no obligation to make any Services or features available in any jurisdiction.
6. Your Account
To access certain features of the Services, you must sign up for an Account which will require you to provide us with your e-mail address and for you to create a suitable password. Eqpme may accept or reject your application to become a User in its sole, absolute and unfettered discretion and shall be under no obligation to provide an explanation with respect to any acceptance or rejection under any circumstances.
(i) Authorized Users. Where applicable, Authorized Users must be identified by a unique email address and username. Two (2) or more natural persons may not use the Services as the same Authorized User. If the Authorized User is not an employee of User, use of the Services will be allowed only if the Authorized User is under confidentiality and other obligations with the User at least as restrictive as those in these Terms, and is accessing or using the Services solely to support the User’s internal business purposes.
(ii) Account Administrator. A User may assign and expressly authorize one (1) or more Authorized User(s) as its agent to manage the User’s Account; management of a User’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). A User may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
6.1 Updates to Your Account
You agree to update the information you have provided to Eqpme in the event of any changes, including, but not limited to, any changes to your profile, contact information, financial information, listed Equipment (if applicable) or general background information.
Eqpme may deliver notices to you at the most recent e-mail, telephone, or physical address provided by you, and those notices will be considered valid even if you no longer maintain the e-mail account, telephone number, or receive mail at that physical address. It is your responsibility to ensure this information is up-to-date at all times.
6.2 Responsibility for Your Account
You, whether as a User or Authorized User, are solely responsible: (i) for all of the activity that occurs through your Account including those of all Authorized Users thereunder (as applicable), and (ii) to keep all information, password(s) and information relating to the Account, or any Authorized Users (as applicable) secure at all times. You agree that you will not disclose your password to any third-party. EQPME WILL NEVER ASK YOU FOR YOUR PASSWORD. You take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Eqpme of any actual or suspected unauthorized use of your Account. We are not responsible for your failure to comply with this clause in a timely manner, or at all, or for any delay in shutting down or protecting your Account after you have reported suspected unauthorized access to us.
IN THE EVENT OF A DISPUTE REGARDING ACCOUNT OWNERSHIP, WE RESERVE THE RIGHT TO REQUEST DOCUMENTATION TO DETERMINE OR CONFIRM ACCOUNT OWNERSHIP. DOCUMENTATION MAY INCLUDE, BUT IS NOT LIMITED TO, A SCANNED COPY OF YOUR BUSINESS LICENSE, GOVERNMENT ISSUED PHOTO IDENTIFICATION, THE LAST FOUR DIGITS OF THE CREDIT CARD ON FILE, OR CONFIRMATION OF YOUR STATUS AS AN EMPLOYEE OF AN ENTITY.
EQPME RESERVES THE RIGHT TO DETERMINE, IN OUR SOLE DISCRETION, RIGHTFUL ACCOUNT OWNERSHIP AND TRANSFER AN ACCOUNT TO THE RIGHTFUL OWNER INCLUDING, IF APPLICABLE, ANY STOREFRONT WHICH MAY BE ASSOCIATED WITH THE ACCOUNT IN THE CASE OF AN EQUIPMENT OWNER. IF WE ARE UNABLE TO REASONABLY DETERMINE THE RIGHTFUL ACCOUNT OWNER, WITHOUT PREJUDICE TO OUR OTHER RIGHTS AND REMEDIES, EQPME RESERVES THE RIGHT TO TEMPORARILY SUSPEND OR DISABLE AN ACCOUNT UNTIL FINAL RESOLUTION HAS BEEN REACHED AS BETWEEN THE DISPUTING PARTIES.
7. Your Use of the Services
Your use of the Services is subject to the following:
You will not breach any provision of these Terms.
You will not violate any law in your jurisdiction, including but not limited to:
Breach, violate, and/or circumvent any local, state, provincial/territorial, regional, or national law or other law or regulation, or any order of a court, including, without limitation, tax regulations, licensing or registration requirements, or third party rights;
post false, inaccurate, misleading, defamatory, or libelous content; or
infringe, reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Eqpme, or that comes from the Services and belongs to another User or to a third-party, including works covered by any copyrights, trademark, patent, or other intellectual property, privacy, publicity, moral, or contractual rights, except with prior express written permission of Eqpme.
You will not dilute, tarnish, or otherwise harm the Eqpme brand in any way, shape or form, including but not limited to:
through the unauthorized use of the trademark Eqpme, the Eqpme Logo and/or any User content;
registering and/or using Eqpme or any similar or composite word in any domain names, trade names, trademarks, or otherwise; or
registering and/or using domain names, trade names, trademarks, social media account names, or other means of identification that closely imitate or are confusingly similar to Eqpme domains, trademarks, taglines, promotional campaigns, or Eqpme and/or User content.
You will not provide or submit any false information, including but not limited to:
false name, date of birth, driver’s license, payment method, credit cards, insurance, or other personal information;
a damage claim, or response to any claim (for example about damage to Equipment, with false or misleading information; Please refer to our Frequently Asked Questions (“FAQs”) for more information about making a damage claim in the event that a loss damage waiver (“LDW”) offered by any authorized third-party insurance provider through the Platform was purchased by a User as part of any Transaction. If no such LDW was purchased, then the applicable Owner of the damaged Equipment acknowledges and agrees that it must rely solely upon any external third-party insurance arrangements, if any, to cover any such damage claims resulting from any Transaction;
register for an Eqpme Account on behalf of an individual other than yourself or any form of entity without proper authorization; or
impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
You will not harm, or threaten to harm, any other User for any reason whatsoever, including but not limited to:
for failure to pay fees, penalties, or other amounts owed to Eqpme or another User;
for failure, as either a Customer or Owner, to timely deliver, make available, or return any Equipment and/or any other item provided with or as part of the Equipment;
misuse the Platform including using the Services to find an Owner or Customer, and then complete a transaction partially or wholly independent of the Services, in order to circumvent the obligation to pay any fees related to Eqpme’s provision of the Services or for any other reason; or
transfer your Eqpme Account and/or user identification information to another party without Eqpme’s prior written consent;
You will not harm, or threaten to harm, any other User, including but not limited to:
“stalk” or harass any other Eqpme User or collect or store any personally identifiable information about any other User other than for purposes of transacting as an Owner or Customer in accordance with these Terms;
engage in physically or verbally abusive or threatening conduct;
use our Services for any other purpose than intended under these Terms, including but not limited to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information, or credit, debit, calling card, or account numbers; or
by treating anyone differently based on the way they look, who they love, what they believe, how they self-identify, where they’re from, or when they were born. Discrimination of any kind is not tolerated in the Eqpme community; Please refer to our Non-Discrimination & Community Guidelines for more information on our Discrimination and Community Policy.
You will not use the Services for your own personal purposes that deviate from the purpose of the Platform, including but not limited to:
contacting another User for any purpose other than in relation to a proposed Transaction;
commercialize any content found on Eqpme or any software associated with our Services, including reviews;
harvest or otherwise collect information of any kind or description without our prior written consent in each instance; or
recruit or otherwise solicit any User to join third-party services or websites that are competitive in any way, shape or form to Eqpme.
You will not interfere with the operation of the Services, including but not limited to doing any of the following:
interfering with any other User listings for Equipment;
distributing or posting spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distributing viruses or any other technologies such as cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or e-mail address information, or similar or other methods or technology that may disrupt or interfere with the operation or provision of the Services, or harm Eqpme or the interests or property of others;
bypassing robot exclusion headers, interfering with the working of the Services, or imposing an unreasonable or disproportionately large load on our information technology infrastructure;
systematically retrieving data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory, or the like, whether by manual methods, or through the use of bots, crawlers, spiders, or otherwise;
using display mirroring or framing the Services or any individual element within the Services, Eqpme’s name, any Eqpme trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page in the Services, without Eqpme’s prior written consent in each instance;
accessing, tampering with, or using non-public areas of the Services, Eqpme’s computer systems, or the technical delivery systems of Eqpme’s providers;
attempting to probe, scan, or test the vulnerability of any of Eqpme’s system or network or breach any security or authentication measures;
avoiding, bypassing, removing, deactivating, impairing, descrambling, or otherwise circumventing any technological measure implemented by Eqpme or any of Eqpme’s providers or any other third-party (including another User) to protect the Services;
forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
attempting to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services; or
endeavoring to circumvent a suspension, termination, or closure of your Eqpme Account, including, but not limited to, creating a new Eqpme Account to circumvent an account suspension or closure or giving Equipment registered to you or a member of your household to any other User to list.
8. User Responsibilities & Mobile Applications
The following responsibilities apply to all Users:
Representations and Warranties. You represent and warrant that:
the information you provide as part of your access to and use of the Services is complete and accurate. This includes information about yourself and the Equipment; and
You are legally competent to agree to be bound by these Terms;
You are legally competent to use the Services and any Equipment you may reserve or purchase as a Customer using the Services;
You are legally entitled as an Owner to offer the Equipment for sale or reservation using the Services.
Due Diligence. It is your responsibility to conduct your own due diligence concerning any User that you engage with on the Platform in the use of the Services for any Transaction.
Safety & Training. Eqpme does not independently qualify or verify any Users of the Platform in any way, shape or form and does not educate Users on the safe handling and operation of Equipment or safety hazards inherent in using Equipment. It is the responsibility of each User to engage only in those activities involving the use of Equipment for which it has the prerequisite skills, qualifications, preparation and training. Compliance with all safety, legal and regulatory requirements in connection with any Transaction or the use of any Equipment is the sole responsibility of the Owner and Customer.
- THE OWNER AND CUSTOMER HEREBY ACKNOWLEDGE AND AGREE THAT EQPME SHALL NOT BE LIABLE IN ANY WAY, SHAPE OR FORM FOR ANY MATTERS RELATED TO THE USE OF EQUIPMENT FORMING PART OF A TRANSACTION.
Eqpme has no control over and does not guarantee: the existence, quality, safety or legality of any Equipment listed or advertised on the Platform by any User or the truth or accuracy of Users’ content or listings or the ability of any Owners to sell Equipment.
Users covenant and agree to comply with the following additional terms for Mobile Applications as defined below:
Mobile Applications: We may make available software to access the Services via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. We do not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. We hereby grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for your User Account on one (1) or more mobile devices owned or leased solely by you, solely for your personal and/or commercial use, as applicable. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that we may from time-to-time issue upgraded versions of the Mobile Applications, and may, where your device settings permit, automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions hereof will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license terms, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and we or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. We reserve all rights not expressly granted hereunder. If the Mobile Applications are being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely hereby and is prohibited except to the extent expressly permitted herein. The Mobile Applications are subject to Canadian and United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from Canada and/or the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all Canadian, United States and foreign laws related to use of the Mobile Applications and the Services.
Precedence: To the extent of any conflict between the Terms and the terms of any end-user license agreement distributed with the Mobile Applications, the operative provisions of the Terms will prevail and govern.
9. Customer Responsibilities
The following responsibilities apply to any Customer that uses the Services. A Customer must:
Only rent, buy or otherwise transact for any Equipment which they are legally entitled to rent or buy and, if applicable, operate under any applicable laws of the governing jurisdiction wherein the Equipment is located. These requirements may include, without limitation, having a valid driver’s or operator’s license, obtaining appropriate insurance and/or any relevant permits to operate the Equipment.
Provide a copy of your driver’s license and any other documents as requested by the Owner.
Only use the Equipment for its intended purpose in accordance with all applicable Equipment safety and operations manual(s) and local laws/rules/regulations of any kind or description and to treat the Equipment with respect and reasonable care in the operation thereof.
Exercise commercial best efforts and take all reasonably prudent steps to maintain and keep the Equipment clean during the course of any lease or rental Transaction.
Immediately report any Equipment damage to the Owner occuring during the term of any lease or rental Transaction.
Comply with the Late Fee Policy.
Return the Equipment to the Owner in essentially the same condition as it was received, normal wear and tear excepted.
Return the Equipment to the Owner in accordance with the Owner’s instruction and on time. If there is any chance of a late return, you should immediately request an extension and following these guidelines:
Contact the Owner to alert them to the extension request so they can review and respond; and
Check with Owner if it is possible to rebook the piece of equipment for the required dates. If the Owner replies it is available please rebook once again through the Platform. If the Equipment is unavailable, you have insufficient funds, or the Owner does not respond to you or denies your request you must return the Equipment at the originally scheduled end time or you will be in unlawful possession thereof and, subject to the lease or rental agreement, the Owner may take legal action against you to recover the Equipment.
- If you return the Equipment relating to any rental Transaction facilitated through the Platform past the return time specified on your booking confirmation, then you acknowledge and agree that Eqpme will automatically be entitled to charge you for any such additional usage, together with such additional administrative fees and related charges as may be applicable from time to time. Late fees will be calculated by applying the daily posted rental rate applicable to the booking in question together with Eqpme’s then current administrative and service fees.
Customer Paid for Equipment Transportation Pick-Up
If a Customer has paid for the Owner, through a transportation fee, to retrieve the Equipment at a specified location, provided that the Customer, at its cost, arranges for the Equipment to be readily accessible to the Owner, or its agents, in a safe and unobstructed location at said site, then the Customer will not be deemed to have returned the rental Equipment late as a result of the Owner’s failure to pick-up the Equipment on time.
Not operate any Equipment without being properly trained or qualified to do so.
Not leave Equipment unlocked or running with the keys inside, except where instructed to do so directly by the Owner in writing.
If required, maintain appropriate insurance for the use of the Equipment as part of any rental Transaction whether obtained through any third-party insurance provider using the Platform or otherwise.
You are responsible for understanding and complying with any laws, rules, regulations etc. and contracts with third-parties that apply to your rental Transaction of the Equipment or use of the Services. Some Equipment may require special permits or licences to use and you will be responsible for checking this in your jurisdiction before you reserve any Equipment.
EQPME IS NOT RESPONSIBLE FOR ANY LEGAL RESTRICTIONS WHICH RESTRICT A CUSTOMER’S ABILITY TO UTILIZE A PIECE OF EQUIPMENT.
If you wish to cancel or modify a Transaction involving a rental reservation, then the cancellation or modification will be determined by our Cancellation and Refund Policy.
You assume the entirety of all risks related to the use of the Services and the use of any Equipment in your capacity as either an Owner or Customer directly. Eqpme assumes no responsibility whatsoever for any risk, loss, damages, etc. related to use of the Services or of any Equipment.
WHEN AN OWNER ACCEPTS YOUR RESERVATION IN RESPECT OF A TRANSACTION, A CUSTOMER IS ENTERING INTO A CONTRACT DIRECTLY WITH THE OWNER. AS A CONDITION OF ACCEPTANCE IN RESPECT OF ANY TRANSACTION, THE OWNER MAY REQUIRE THE CUSTOMER TO REVIEW AND ACCEPT ITS OWN STANDARD LEASE, RENTAL AND/OR SALES CONTRACT (THE “OWNER TERMS”). IF A CUSTOMER FAILS, OR REFUSES, TO ACCEPT THE OWNER TERMS, THEN THE LEASE, RENTAL AND/OR SALES TRANSACTION WILL NOT BE ABLE TO BE COMPLETED ON OUR PLATFORM. CUSTOMERS ARE ADVISED THAT EQPME DOES NOT REVIEW, ENDORSE OR AGREE TO BE BOUND IN ANY WAY, SHAPE OR FORM BY ANY OWNER TERMS. CUSTOMERS ARE SOLELY RESPONSIBLE FOR REVIEWING OWNER TERMS PRIOR TO COMPLETING A TRANSACTION ON OUR PLATFORM. USERS AGREE TO PAY ALL APPLICABLE FEES AND TAXES RELATED TO ANY RENTAL AND/OR SALE TRANSACTION. IF THERE ARE ANY INCONSISTENCIES OR CONFLICTS BETWEEN ANY OWNER TERMS AND THE TERMS, THE TERMS SHALL FOR ALL PURPOSES GOVERN.
10. Owner Responsibilities
The following responsibilities apply to Owners that use the Services. An Owner must:
Include complete and accurate information about your Equipment, price, additional charges (cleaning fees, damage claims, fuel adjustments, etc.) and any rules or requirements that apply to your Customer as a condition for engaging in a Transaction through the Platform. You are responsible for keeping your listing information (including calendar availability) and content (like photos) up-to-date and accurate at all times.
Review Customer’s insurance policies to ensure that same are sufficient for your purposes for the rental of any particular piece of Equipment (including as to theft, damage, etc.).
Provide safe, legally owned and insured Equipment in all instances.
Ensure that the Equipment is fit for purpose in accordance with manufacturer’s specifications and not subject to any form of safety recall.
Ensure that all Equipment is compliant with Eqpme’s Eligibility & Maintenance Policy.
Not publish any listing on the Platform with false or misleading information or listing with a price that you do not intend to honor.
Not offer, as an Owner, any Equipment or optional extras that you do not yourself own or have authority to publish, rent, sell or otherwise use or exploit.
Not offer, as an Owner, any Equipment that may not be shared for compensation pursuant to the Terms and conditions of an agreement with a third-party, including, but not limited to, a lease or financing agreement with a Customer;
Not offer any Equipment that has a salvaged, branded, written-off, washed, or unclean title or that is not safe, legally registered, or not insured to be operated on public roads (if applicable);
Not offer any attachment or add-on item that is not safe, clean, and acceptable for its intended use.
Act in good faith to accommodate extensions, if possible.
Report late returns for any rental Transaction in a timely manner after taking appropriate self-help steps to ascertain the location and anticipated return date/time for Equipment which has not been returned as of the stated end-time for any Transaction.
Without limitation, these steps may include:
Contacting your Customer via the Eqpme messaging center through the Platform to inquiry if the Customer wishes to extend their Equipment rental booking.
If the Equipment is available, ask that the Customer request an extension.
If the Equipment is not available, please advise the Customer that the Equipment must be returned as soon as possible and that late return fees will be applicable in accordance with Eqpme’s Policies and/or any Owner Terms (if any).
Report only legitimate late returns involving a rental Transaction. Misreporting could result in the imposition of administrative charges, Account suspension and/or an Account removal at the sole, absolute and unfettered discretion of Eqpme.
To submit a late return report, follow the steps below:
(1) Identify the Equipment booking that is late.
(2) Open the Equipment booking details and tap the “Report Issue” button.
(3) Select either: “Late Return: Vehicle Not Returned” or “Late Return: Vehicle Returned”.
(4) Answer all questions presented.
(5) Tap “Report Issue” and “Confirm” your report.
(6) Allow Eqpme’s Customer Support team up to forty-eight (48) hours to review the issue and notify you of the outcome or review the issue status in the My Tickets dropdown in the Help Center.
Be responsible for understanding and complying with any laws, rules, regulations, and contracts with third-parties that apply to your listing of the Equipment or use of the Services.
WHEN YOU ACCEPT A RESERVATION THROUGH THE PLATFORM FOR A TRANSACTION AS AN OWNER, YOU ARE ENTERING INTO A CONTRACT DIRECTLY WITH THE CUSTOMER AND ARE RESPONSIBLE FOR DELIVERING YOUR EQUIPMENT UNDER THE TERMS AND AT THE PRICE SPECIFIED IN YOUR LISTING ON THE PLATFORM. YOU ARE ALSO AGREEING TO PAY ALL APPLICABLE FEES AND TAXES FOR THE TRANSACTION THAT MAY BE REQUIRED AS PART OF THE TERMS IN CONNECTION WITH THE SERVICES. ANY TERMS, POLICIES OR CONDITIONS THAT YOU INCLUDE IN YOUR CONTRACT WITH THE CUSTOMER MUST NOT BE INCONSISTENT WITH THESE TERMS AND THE INFORMATION PROVIDED IN YOUR LISTING ON THE PLATFORM.
WE RESERVE THE RIGHT TO PROVIDE OUR SERVICES TO ANY ENTITY OR GROUP OF ENTITIES WHATSOEVER, WHETHER AS OWNER, CUSTOMER OR BOTH AND MAKE NO PROMISE OF EXCLUSIVITY WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT EQMPE EMPLOYEES, CONTRACTORS AND AFFILIATES MAY ALSO BE CUSTOMERS OR OWNERS AND THAT THEY MAY COMPETE WITH YOU DIRECTLY AND/OR INDIRECTLY, ALTHOUGH THEY MAY NOT USE YOUR CONFIDENTIAL INFORMATION IN DOING SO.
EQPME IS NOT AN INSURANCE COMPANY AND DOES NOT OFFER INSURANCE. NOR DOES EQPME VERIFY THE EXISTENCE OR ADEQUACY OF ANY INSURANCE PURPORTED TO BE IN PLACE BY EITHER THE OWNER OR CUSTOMER WITH RESPECT TO ANY LEASE OR RENTAL TRANSACTION.
WE DO NOT RECOMMEND, ENDORSE OR PROVIDE, NOR ARE WE AFFILIATED WITH, ANY INSURANCE PRODUCTS, COMPANIES, BROKERS, ETC. OTHER THAN THOSE PRODUCTS, COMPANIES AND/OR BROKERS WHOSE SERVICES ARE MADE AVAILABLE THROUGH THE PLATFORM. NOTWITHSTANDING ANY SUCH INCLUSION IN THE PLATFORM, OWNERS AND CUSTOMERS ARE REQUIRED TO DEAL WITH ALL ASPECTS OF INSURANCE DIRECTLY BETWEEN THEMSELVES. PLEASE REVIEW ANY INSURANCE POLICY THAT YOU MAY HAVE RELATED TO THE RENTAL, SALE OR USE OF EQUIPMENT CAREFULLY AND, IN PARTICULAR, PLEASE MAKE SURE THAT YOU ARE FAMILIAR WITH AND UNDERSTAND ANY EXCLUSIONS TO, AS WELL AS ANY DEDUCTIBLES THAT MAY APPLY IN RESPECT OF, SUCH INSURANCE POLICY. YOUR INSURANCE POLICY MAY CONTAIN VARIOUS LIMITATIONS AND RESTRICTIONS WHICH MAY AFFECT YOUR COVERAGE AND/OR DETERMINE WHETHER OR NOT BENEFITS WILL BE PAYABLE IF AN INSURED EVENT OCCURS.
NOTWITHSTANDING ANY AFFILIATION(S) WITH ANY PRODUCTS, COMPANIES, BROKERS, ETC. FROM TIME TO TIME, EQPME DOES NOT REPRESENT OR WARRANT IN ANY WAY, SHAPE OR FORM THE SUITABILITY OF ANY SUCH PRODUCTS, COMPANIES AND/OR BROKERS OF ANY KIND OR DESCRIPTION WHATSOEVER, WHETHER AVAILABLE DIRECTLY THROUGH THE PLATFORM OR OTHERWISE. USERS OF THE PLATFORM ARE ADVISED TO CONSULT WITH THEIR OWN INSURANCE ADVISORS TO ENSURE THE ADEQUACY OF ANY INSURANCE COVERAGE RELATING TO ANY CONTEMPLATED TRANSACTION.
FOR ANY TRANSACTION INVOLVING A CUSTOMER ACQUIRING A LOSS DAMAGE WAIVER (“LDW”) PARTIALLY OR ENTIRELY THROUGH THE SERVICES, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT: (I) IT IS PURCHASING THE LDW FOR AND ON BEHALF OF THE OWNER, (II) THE OWNER IS THE SOLE BENEFICIARY UNDER THE LDW, (III) THAT NO INTEREST WHATSOEVER IS BEING CONFERRED TO OR IN FAVOUR OF THE CUSTOMER BY ADDING AN LDW TO A TRANSACTION, AND (IV) THAT THE PURCHASE OF THE LDW IS A REQUIREMENT OF THE OWNER TO COMPLETE THE SUBJECT TRANSACTION AND IS NOT REQUIRED OR IMPOSED BY EQPME IN ANY WAY SHAPE OR FORM.
Where an Owner represents that it will provide insurance coverage of any kind to its Customers including, without limitation, (i) rental and liability agreement waiver, (ii) protection plan, , (iii) third-party liability insurance, (iv) physical damage protection, and/or (v) on-site assistance, the Customer is solely responsible to verify the existence and/or adequacy of any of the offered products directly with the Owner as Eqpme does not engage in any form of review and/or verification whatsoever of the existence or adequacy of any such insurance or related products.
For those Owners listing Equipment through the Platform for rental purposes, we strongly encourage all such Owners maintain rental insurance with respect to all pieces of Equipment listed using the Platform and Services.
12. No Lease, Rental or Sale Agreement with Eqpme
ALL USERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
- (i) EQPME DOES NOT OWN ANY EQUIPMENT WHATSOEVER AND PROVIDES THE SERVICES ONLY; AND
- (ii) NOTHING HEREIN CONTAINED CONSTITUTES A LEASE, RENTAL AND/OR SALE AGREEMENT OF ANY KIND OR DESCRIPTION WHATSOEVER BETWEEN ANY USER AND EQPME DIRECTLY OR INDIRECTLY.
Users acknowledge and agree that the Rental Terms shall apply as between the applicable Owner and Customer in the case of any lease or rental Transaction. Users further acknowledge and agree that no contractual relationship is formed with Eqpme directly or indirectly as it pertains to any rental, lease or sale Transaction, as applicable, and further that Eqpme has no connection to the Equipment itself. For clarity by completing any Transaction Users form a separate and standalone contractual relationship as between the applicable Owner and Customer directly, which stand-alone contractual relationship is in addition to, and not part of, the User’s contractual relationship with Eqpme, notwithstanding that the terms of such contractual relationship are set, in whole or in part, by Eqpme pursuant to, or as a result of, the required use of the Rental Terms.
Users covenant and agree that any and all agreements pertaining to any Transaction, whether formalized in writing or not, are concluded solely between the Owner and the Customer. A Customer and an Owner may create and use their own form of agreement, including any terms and conditions they see fit subject to the limitations set out herein. It is your responsibility to review any proposed form of agreement in advance of completing any Transaction to determine whether it is suitable for your purpose. You acknowledge and agree that you may be required by an Owner to enter into one (1) or more separate agreements, waivers or terms and conditions prior to engaging in a Transaction and an Owner may place additional restrictions, obligations, etc. on a Transaction in its sole discretion.
ANY DISPUTE IN RESPECT OF A LEASE, RENTAL AND/OR SALE TRANSACTION MUST BE RESOLVED DIRECTLY BETWEEN THE OWNER AND CUSTOMER. NO PRIVITY OF CONTRACT REGARDING THE SUBJECT MATTER OF THE TRANSACTION IS CREATED WITH EQPME BY VIRTUE OF THE PROVISION OF THE SERVICES NOTWITHSTANDING ANYTHING ELSE HEREIN CONTAINED EQPME HAS NO OBLIGATION TO INTERVENE IN DISPUTES BETWEEN OWNERS AND CUSTOMERS WITH RESPECT TO A TRANSACTION AS EQPME IS NOT A PARTY TO SAME INCLUDING, WITHOUT LIMITATION, COLLECTION MATTERS.
13. Betas, Previews & Testing
13.1 Beta Service
This section describes the additional terms and conditions under which you may (a) access and use certain features, technologies, and services made available to you by Eqpme that are not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “preview”, “pre-release”, or “experimental” (each, a “Beta Service”) or (b) access and use Services available in certain regions that are not generally available, including, but not limited to, any regions identified by Eqpme as “beta”, “preview”, “pre-release”, or “experimental” (each, a “Beta Region”).
You must comply with all terms related to any Beta Service or Beta Region as posted on the Site, any Applications or as otherwise made available to you. Eqpme may add or modify terms including, without limitation, lowering or raising any usage limits, related to access to or use of any Beta Services or Beta Regions at any time.
You may provide Eqpme with information relating to your access, use, testing or evaluation of the Beta Services or Beta Regions including, without limitation, observations or information regarding the performance, features and functionality of Beta Services or Beta Regions (collectively, “Test Observations”). Eqpme will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of any Beta Service or Beta Region.
Eqpme may suspend or terminate your access to or use of any Beta Service or Beta Region at any time and for any reason whatsoever. Your access to and use of each Beta Service and Beta Region will automatically terminate upon the release of a generally available version of the applicable Beta Service or Beta Region or upon notice of termination by Eqpme. Notwithstanding anything to the contrary herein, after suspension or termination of your access to or use of any Beta Service or Beta Region for any reason whatsoever, (a) you will not have any further right to access or use the applicable Beta Service or Beta Region, and (b) any User content used in the applicable Beta Service or Beta Region may be deleted or inaccessible.
Test Observations and any User feedback relating to a Beta Service or Beta Region, and any other information about or involving (including the existence of) any Beta Service or Beta Region are considered confidential information by Eqpme.
13.2 “As Is” Beta Services
WITHOUT LIMITING ANY DISCLAIMERS IN THE TERMS, YOU ACKNOWLEDGE AND AGREE THAT BETA SERVICES AND BETA REGIONS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EQPME IS PROVIDING BETA SERVICES AND BETA REGIONS TO YOU “AS IS” AND “AS AVAILABLE”. EQPME MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES AND BETA REGIONS, INCLUDING ANY WARRANTY THAT THE BETA SERVICES AND BETA REGIONS WILL BECOME GENERALLY AVAILABLE, BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, EQPME DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. EQPME’S AGGREGATE LIABILITY FOR ANY BETA SERVICES AND BETA REGIONS WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE THIRTY (30) DAYS PRECEDING THE CLAIM.
13.3 The Eqpme AR Experience (Patent Pending)
The Customer agrees that we may limit, suspend, terminate or discontinue the Eqpme AR Experience or any of its features or content at any time and for any reason, without notice.
Use of the Eqpme AR Experience may involve flashing lights or patterns that may trigger seizures or other symptoms for photosensitive Users. User discretion is advised.
Ownership, Licenses, and Restrictions
The Eqpme AR Experience and the content contained therein are the property of Eqpme or its licensors. The Eqpme AR Experience and all content, materials, and software incorporated therein are protected by copyrights, patents, trademarks, trade secrets, and other intellectual property laws and proprietary rights. You are granted a limited personal, non-commercial, non-exclusive, non-assignable, non-sublicensable, and revocable license to access and use the Eqpme AR Experience for its intended use. You may not sell, resell, reproduce, distribute, display, perform, record, sublicense, loan, lease, otherwise transfer, alter, modify, merge, adapt, copy, translate, publish, export, create derivative works of, make any commercial use of, reverse engineer, decompile, attempt to derive the source code, disassemble the Eqpme AR Experience or any software that is part of the Eqpme AR Experience, attempt to disable or circumvent any digital rights management mechanism or other content protection measures, or otherwise use and exploit any part of the Eqpme AR Experience. All rights not expressly granted to you herein are reserved. Your use of the Eqpme AR Experience must comply with all applicable laws, rules and regulations. We may revoke this license at any time without notice.
Source code for parts of the Eqpme AR Experience may be available for use, modification, and distribution under certain open-source licenses. Certain software or technical information may be licensed from third-parties, and may be covered by one or more U.S. Patents, pending U.S. patent applications, and pending counterpart European and international patents.
THE PATENT PENDING EQPME AR EXPERIENCE AND ANY INCLUDED SOFTWARE IS PROVIDED ‘AS IS’, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND BY EITHER EQPME OR ITS LICENSORS. EQPME AND ITS LICENSORS MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, AVAILABILITY, COMPLETENESS, USEFULNESS, SECURITY, RELIABILITY, INTEROPERABILITY, OR THAT THE AR EXPERIENCE WILL BE UNINTERRUPTED, VIRUS FREE, OR COMPATIBLE WITH YOUR DEVICE OR THAT THE EQPME AR EXPERIENCE WILL MEET YOUR EXPECTATIONS AT ALL.
If you do not agree to the terms contained in this Section of the Terms relating to the Eqpme AR Experience, then you are prohibited from accessing and using the Eqpme AR Experience.
14. Use of Content
Subject to your compliance with the provisions hereof, Eqpme grants you a limited, revocable, non-exclusive, non-transferable license, to access and view any Eqpme and/or user content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Eqpme or its licensors, except for the licenses and rights expressly granted in these Terms.
All Eqpme-generated text, data, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, products (including software) and computer code (collectively, “Content”) including, but not limited, to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on any of the Services is owned, controlled or licensed by or to Eqpme, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly provided in these Terms, no part of the Services and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Eqpme’s express prior written consent, in its sole, absolute and unfettered discretion.
14.2 User Content
“Materials” means your trademarks, copyright content, any products or services you list and/or offer through the Services (including description and price), and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by you or your affiliates to Eqpme or its affiliates.
You understand that your Materials may be transferred unencrypted and such transfers may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. We may, in our sole, absolute and unfettered discretion, permit you to post, upload, publish, submit or transmit Materials utilizing the Services such as, without limitation, photographs of you and your Equipment, reviews, feedback, and descriptions of your Equipment, etc. By making available any Materials on or through the Services, or otherwise, you grant Eqpme a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such content on, through, by means of, or to promote or market the Services. Eqpme may use our rights under this license to operate, provide and promote the Services and to perform our obligations and exercise our rights under the Terms. You represent, warrant and agree that you have all necessary rights in the Materials to grant this license. You irrevocably waive any and all moral rights you may have in the Materials in favour of Eqpme and agree that this waiver may be invoked by anyone who obtains rights in the materials through Eqpme, including anyone to whom Eqpme may transfer or grant (including by way of license or sublicense) any rights in the Materials.
By providing any Materials, you authorize Eqpme to request, receive, use, and store such Materials in any manner it sees fit from time to time. You agree that Eqpme can, at any time, review and delete any or all of the Materials submitted to the Services, although Eqpme is not now, and under no circumstances shall be, obligated to do so.
Except as described above, Eqpme does not claim any ownership rights in any such Materials and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Materials. Eqpme does not pre-screen Materials and may in our sole discretion refuse or remove any Materials from any part of the Services, including if we determine in our sole discretion that the goods or services that you offer through the Services, or the Materials uploaded or posted to the Services, violate these Terms. Notwithstanding the foregoing, Eqpme shall be entitled to create and store a copy of any Materials and such copy shall be the sole property of Eqpme and you hereby grant Eqpme a limited, revocable, non-exclusive, non-transferable license, to access, view and utilize such Materials for any purposes related to the Services of any kind or description whatsoever including, but not limited to, marketing, advertising and/or promotion of the Site and/or the Services in any medium. Such license shall only be revocable in the event a User simultaneously deletes its Account and provides written confirmation of its intention to cease using the Services.
You hereby acknowledge and agree that Users may publish and request Eqpme to publish and publicly display on their behalf on and/or through the Site or the Services reviews, feedback, comments or similar writing, audio or video relating to another User with whom they have engaged in a Transaction (hereinafter “Reviews”). Reviews are posted to the Site and/or reproduced in connection with the Services in an unverified and voluntary manner only. Eqpme takes no steps to verify information posted in Reviews and is not responsible for any such information in any way, shape or form whatsoever. Eqpme does not monitor, influence, contribute to or censor Reviews and shall, under no circumstances, have any obligation to any User to do so. Reviews are not, for any purpose whatsoever, an introduction, endorsement or recommendation by Eqpme, whether positive or negative. If a User provides a Review, you acknowledge and agree that it will be free of any inaccurate, erroneous, false, misleading or otherwise libelous material. Reviews are provided in unfiltered form and Users are cautioned to treat same as public forum communications subject to absolutely no standard of review or scrutiny, and are further cautioned to place to reliance thereon whatsoever.
Eqpme reserves the right, though is under no obligation, to remove Reviews and/or any portion thereof, that Eqpme, in its sole, absolute and unfettered discretion determines violates these Terms, negatively affects the Services or otherwise is inconsistent with the business interests of Eqpme.
Eqpme may from time to time offer certain promotions in respect of the Services in its sole, absolute and unfettered discretion. You must be a User in good standing (e.g., not suspended) and in compliance with these Terms and any promotion rules to qualify for any promotional compensation. Users who attempt to abuse our promotions are subject to cancellation/reversal of the promotion amounts and suspension from the Eqpme community, the Platform and a ban on utilization of the Services. Customers and Owners cannot cancel existing Transactions to qualify for new promotions.
You agree to receive all communications, agreements and notices that we provide in connection with any Services (“Communications”) including, but not limited to, Communications related to our delivery of the Services and your purchase of, subscription to or registration to participate in the Services via electronic means, including by email, pre-recorded message calls, in-app notifications, text messages at your telephone number(s), posting them on the Site or through any Services. You further agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.
We may place such emails, calls or texts primarily to confirm your signup; provide notices regarding your Eqpme Account or Eqpme Account activity; investigate or prevent fraud; collect a debt owed to us; or communicate urgent messages. We may share your phone number(s) and email with service providers with whom we contract to assist us in pursuing these interests. We will not share your phone number(s) and/or emails with third parties for their own purposes without your consent. Standard email, telephone minute and text and data charges may apply. Where Eqpme is required to obtain your consent for such communications, you may choose to revoke your consent.
You authorize Eqpme and its partners, affiliates, subsidiaries etc., without further notice or warning, and in our sole, absolute and unfettered discretion, to monitor and copy e-mails and/or record telephone conversations you, or anyone acting on your behalf, has with Eqpme or its agents for quality control, enforcement, security and/or training purposes. You acknowledge and understand that your communications with Eqpme may be overheard, monitored, or recorded without further notice or warning. If you do not wish to have your call recorded, please contact us instead in writing through firstname.lastname@example.org. You agree to communicate solely through the Site, Application and/or Platform, as applicable, and to make and receive payments relating to any Transactions using only the Services for a period of at least two (2) years from the date you first identify and/or meet a counterparty User, unless you pay a conversion fee equal to the greater of: (i) an amount equal to the amount which the User paid to Eqpme in connection with their use of the Services over the previous twenty-four (24) months plus applicable taxes or (ii) in the event the User has used the Services for less than twenty-four (24) months, an amount equal to their current usage pro-rated to obtain the estimate of the amount which the User would have paid to Eqpme over a period of twenty-four (24) months plus applicable taxes. Violations of this Section constitute a serious breach and may result in permanent suspension of your Account and such further action as Eqpme may deem reasonable or necessary in the circumstances.
When you list or book Equipment you provide us with certain information about yourself. We may use this information to verify your identity and conduct any other checks we deem advisable to verify the information you provide. In our sole, absolute and unfettered discretion, we may from time to time also share this information with a third-party in order to verify your identity or check any other information you provide.
14.6 Intellectual Property
EQPME IS THE OWNER OF ALL INTELLECTUAL PROPERTY RIGHTS IN RESPECT OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE TRADEMARK, EQPME, AND ANY COMPOSITE MARK AND LOGO, AS WELL AS ANY COPYRIGHT IN THE SITE, APPLICATIONS, SERVICES AND BETA SERVICES.
You agree that you may not use any trademarks, logos or service marks of Eqpme, whether registered or unregistered, including, but not limited to, the following word marks: EQPME, EQPME Pro, EQPME Storefront, EQPME Yard, The Rental Board, EQPME Procurement Dashboard and Your Local Heavy Equipment Marketplace (collectively, “Eqpme Trademarks”) unless you are authorized to do so by Eqpme in writing. You agree not to use or adopt any marks that may be considered confusing with the Eqpme Trademarks. You agree that any variations or misspellings of the Eqpme Trademarks would be considered confusing with the Eqpme Trademarks.
You agree not to purchase, register, or use search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses, social media names, or domain names (including without limitation top-level domains, sub-domains, and page URLs) that use or include Eqpme or Eqpme Trademarks or that use or include any terms that may be confusing with the Eqpme Trademarks.
You acknowledge and agree that the Terms do not give you any right to implement any Eqpme patents.
14.7 Data Usage & Retention
Usage Data may include, without limitation, any data models created, extrapolated, derived from, adapted, enhanced, or developed by Eqpme using User Data based on use of the Services by any User and/or its Authorized Users, and any underlying data architecture, including, without limitation, the data infrastructure, schema, rules, components, specifications, methods or processes and components that dictate how data interacts and is organized, calculated or translated from various sources into one or more meaningfully defined data models and related security protocols as integrated and applies at each stage of data processing. Without limitation of any term in the Terms, Eqpme may analyze User Data and User usage patterns using techniques such as machine learning in order to improve and develop Eqpme’s current and future products, services, methods, and processes. Any output from such machine learning techniques, including the resultant machine learning models, is deemed Usage Data that is owned by Eqpme. Eqpme retains all right, title, and interest in and to the Usage Data, and any unauthorised use of Usage Data is strictly prohibited. Eqpme may retain transaction data for as long as it has a business purpose (which if required under applicable law, is covered by a legal basis) to do so.
Where applicable, Users with requisite access may use curated Usage Data specific to their Account, provided that you: (1) use such information only for the limited commercial purpose of internal business purposes of the specific User and do not copy, post (or allow to be copied or posted) such information on any network, broadcast it in any media whatsoever, or post it in a public or publicly accessible place [without the express prior written consent of Eqpme in each instance] and (2) make no modifications to any such information, and (3) not make any additional representations or warranties relating to such Usage Data. No unauthorized commercial use of any Content or Usage Data in any way, shape or form is permitted. The sale or re-sale of Content or Usage Data, in whole or in part, including the sale of temporary or limited access thereto, is a material breach hereof and Eqpme may immediately and irrevocably lock down any Account and terminate any User(s) whom Eqpme believes, acting in a commercially reasonable manner, may have violated such prohibition.
As a “free-to-list” digital Platform, Users acknowledge and agree that Eqpme generates income from its Services based on fees for: (i) which Owners are charged equal to the then applicable Eqpme Service Fee associated with the Account of any applicable Owner for any Transactions completed using the Platform, (ii) advertising and/or listing placement prioritization on the Platform, (iii) subscriptions for select types and tiers of Services including, without limitation, e-commerce storefronts and enterprise-level solutions and (iv) development services and licensing of Eqpme software solutions to third-parties for, without limitation, payment processing and data collection purposes.
Overdue payments to Eqpme in connection with any Services shall bear interest at a rate equal to the lesser of: (a) two percent (2%) per month compounded monthly or (b) the maximum rate of interest permitted under any applicable law until paid in full. All payments shall be applied to outstanding interest, if any, first and the remainder to principal.
15.1 General Payment Terms & Pricing
Eqpme provides payments services, facilitated through third-party provider(s) as outlined herein, to Users publishing, offering and/or booking Equipment for rent, sale or otherwise to complete a Transaction through the Services. Such payment services may include (if available) and, without limitation, the following (collectively, “Payment Services”):
(i) Collecting payments from Customers or Owners which are owing as a result of: (a) any Transaction, (b) for use of the Services or (c) enforcement of the Terms, as applicable, by charging the payment method associated with the User’s Account to satisfy such obligation including, without limitation, by credit card, debit card, bank account, PayPal, Stripe, Google Pay, Apply Pay or any similar account registered on Eqpme for such purpose (the “Payment Method”);
(ii) Effecting payments to Owners (a “Payout”) to a financial instrument associated with their Account, such as a PayPal account, bank account, a prepaid card, or a debit card (the “Payout Method”) in connection with a Transaction net of any applicable fees owing to Eqpme;
(iii) Effecting payments to a third-party Payout Method designated by an Owner;
(iv) Payment collection services; and
(v) Other payment-related services in connection with the Services.
In order to use the Payment Services, you must be at least eighteen (18) years old, must have an Account in good standing in accordance with the Terms, and must keep your payment and personal information accurate and complete. By agreeing to use the Payment Services offered by Eqpme, directly or indirectly, the User agrees to comply with the payment terms set out herein.
Eqpme may charge fees for use of certain Payment Services and any applicable fees will be disclosed to you in the Terms and/or Policies. In addition, further details relating to the applicable fees charged by Eqpme to different types of Users for using our Services and other cost structures can be found in our Pricing Policy.
Users authorize Eqpme, directly or through third parties, to make any inquiries we consider necessary to verify your identity and information you provide relating to the Payment Services. This may include (i) screening you against third-party databases or other sources, (ii) requesting reports from service providers, (iii) asking you to provide a form of government identification (e.g., driver’s license or passport), your date of birth, your address, and other information; or (iv) requiring you to take steps to confirm ownership of your email address, Payment Method(s) or Payout Method(s). Eqpme reserves the right to terminate, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information in our sole, absolute and unfettered discretion.
Payment Authorizations: You authorize Eqpme to collect from you amounts due pursuant to the Terms by either: (i) charging the Payment Method associated with the relevant booking, or any other Payment Method on file that you authorize in your Account (unless you have previously removed the authorization to charge such Payment Method(s)), or (ii) by withholding the amount from your future Payout. Specifically, you authorize Eqpme to collect from you:
(a) Any amount due to Eqpme (e.g., as a result of a Transaction, cancellations or other actions as a User of the Services), including reimbursement for costs prepaid by Eqpme on your behalf. Any funds collected by Eqpme will be set off by the amount owed by you to Eqpme to extinguish your obligation to Eqpme;
(b) Any amount due to an Owner from a Customer which Eqpme collects as the Owner’s payment collection agent;
(c) Taxes, where applicable and as set out in the Terms;
(d) Any amount you pay in connection with your Account;
(e) Any amounts owed to Eqpme in accordance with the Terms;
(f) Overholding penalties payable under the Terms, including any cost and expenses incurred in collecting the overholding penalty; and
(g) Any service fees or cancellation fees imposed pursuant to the Terms (e.g., if, as an Owner, you cancel a confirmed booking).
If your Payment Method associated with the relevant booking is determined to be expired, invalid or otherwise not able to be charged for any reason (such as insufficient funds), you remain responsible for any uncollected amounts and Eqpme may charge the Payment Method related to your booking again or use any other Payment Method on file associated with your Account, if available, to collect such Additional Charges (as defined in the Additional Charges Policy). Any amount not collected for any reason will be subject to any remedies that may be available, including, but not limited to, referral to a collections agency, or pursuit of available causes of action or claims against you.
If Eqpme has reason to believe that you as an Owner participated in fraudulent and/or malicious activity, such as an overpayment scam, booking fraud or other fraud, and Eqpme released the payout for such Transaction, Eqpme may recoup from you such amount by reducing, setting off or debiting the amount from any future Payouts owed to you. Eqpme may additionally charge the Owner our then current administrative fee for addressing any such fraudulent and/or malicious activity. The administrative fee associated with fraudulent and/or malicious activity may also be charged by Eqpme as set out herein in connection with any attempts to obtain a Payout which are unsuccessful.
In addition to any amount due as outlined above, if there are delinquent amounts or chargebacks associated with your Payment Method, you may be charged fees that are incidental to Eqpme’s collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges.
You hereby represent, warrant, acknowledge and agree that by providing Eqpme with payment information: (i) you are authorized to use the Payment Method, (ii) all payment information is accurate and current, and (iii) that we may charge you for the Services using the subject Payment Method. We may bill you: (a) in advance, (b) at the time of, or shortly after, a Transaction and/or (c) on a recurring basis. We may bill you for more than one (1) billing period at a time for amounts that were previously not processed for any reason(s) whatsoever. If you set up a free trial using a credit card, you agree that we may automatically charge said credit card the applicable Fees plus a reasonable processing fee when said free trial ends unless you cancel your subscription before the end of such free trial. The authorization to charge a credit card or other payment method set out herein continues until such time as you terminate your subscription in accordance herewith and close your Account, provided your Account is in good standing at time of closure. If not, your authorization extends until such time as all amounts payable to us or any other User are collected in full.
If, at any time or from time to time, your Account is in arrears or all amounts payable are not otherwise paid as and when due, interest will accrue on any such outstanding amounts at a rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, determined and compounded daily rom the date due until the date paid. You will reimburse any costs and/or expenses (including, but not limited to, attorney fees on a solicitor-client or full-indemnity basis) incurred by us to collect any unpaid amounts. We may accept payment in any amount without prejudice to our right to recover the balance due or to pursue any other right or remedy whatsoever. No amounts due and payable pursuant to any Transaction may be withheld or offset by any User for any reason.
Eqpme will provide an invoice in a format we choose, which may change from time to time in our sole, absolute and unfettered discretion. We reserve the right to correct any errors or mistakes that we identify even if we have already issued an invoice and received payment. You agree to notify us of any billing problems or discrepancies within thirty (30) calendar days after they first appear on your invoice. If you do not bring such problem/discrepancy to our attention within thirty (30) calendar days, you acknowledge and agree that such failure shall constitute a full and complete waiver of your right to dispute such problem or discrepancy.
You may receive, or be eligible for, certain pricing structures, discounts, features, promotions, upgrades and/or other benefits (collectively “Benefits”) through a separate agreement with us (a“Master Services Agreement” or “MSA”). Any and all such Benefits are provided to you solely in connection with such MSA and, subject to the terms thereof, may be modified and/or terminated without notice in our sole, absolute and unfettered discretion.
Customer-Specific Payment Terms
(i) Payment Authorization: As a Customer, you authorize Eqpme to charge your Payment Method (including charging more than one (1) Payment Method), either directly or indirectly, for all fees due (including any applicable taxes) in connection with your Account, including post-Transaction collection claim amounts in accordance with the Terms. For greater clarity, you hereby authorize Eqpme to use and charge your stored Payment Method to cover any balances owing in connection with a Transaction or the Services, in general, including, without limitation, outstanding payments, fines, fees and damages (e.g., late fees, extension fees, damage fees, insurance deductible fees, transportation costs, processing fees, fuel charges, hour adjustments, claims costs and related administrative fees) all in accordance herewith.
(ii) Automatic Update of Payment Method: If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, Eqpme may acquire that information from our financial services partners or your bank and automatically update your Payment Method on file.
(iii) Payment Details Collection & Use: When you provide Eqpme with a Payment Method, you expressly authorize Eqpme, or any third-party service providers acting on Eqpme’s behalf, to collect and store your Payment Method information for future use in the event you owe any monies pursuant to these Terms.
(iv) Booking Request Status: If a requested booking for Equipment is declined because it is not accepted by the Owner, you cancel the booking request before it is accepted by the Owner, or Eqpme cancels the booking, as applicable, any amounts collected by Eqpme and due to you pursuant to the Terms, will be refunded to you (if processed), and any pre-authorization of your Payment Method will be released (if applicable).
(v) Your Payment Method, Your Responsibility: Eqpme is not responsible for any loss suffered by you as a result of incorrect Payment Method information provided by you.
(vi) Collection Claims: If an Owner submits a post-Transaction collection claim, you will have forty-eight (48)hours to review the evidence submitted and initiate a dispute. If the Customer chooses to initiate a dispute, the Messaging Centre will re-open to allow discussions related to the collection claim to occur and review the evidence submitted in connection therewith. The Messaging Centre will remain open for a period of seventy-two (72) hours from the time the dispute is initiated. In the event that the Owner and Customer are unable to resolve the dispute amount(s), then Eqpme shall adjudicate the dispute and advise the parties of the final result within five (5) business days (in Ontario). Users authorize Eqpme to charge any Payment Method associated with their Account (unless authorization was, prior to the collection claim, removed) to settle any amounts owing relating to the use of the Services or in connection with a Transaction.
You agree that either Eqpme, or the applicable Owner, may seek to recover from you under any insurance policies you maintain and that either Eqpme, or the applicable Owner, may also pursue against you any rights or remedies they may have available, including, but not limited to, referral to a collections agency, or pursuit of causes of action or claims against you, including in relation to a collection claim, or payment requests made by Owners in accordance with the Terms. All payment obligations owing by a Customer to Eqpme, or any applicable Owner, shall indefinitely survive the expiry of any Transaction and/or the termination or ban of the Customer from the Services.
Owner-Specific Payment Terms
(i) Payment Collection: Eqpme charges the Customer’s Payment Method for the total amount of a Transaction booking at the time that the Customer’s booking request is accepted by the Owner, unless noted otherwise.
(ii) Valid Payout Method: In order to receive a Payout as an Owner you must have a valid Payout Method linked to your Account. When you add a Payout Method to your Account, you will be asked to provide information such as name, government identification, tax ID, billing address, and financial instrument information either to Eqpme or its third-party payment processor(s). Depending on the Payout Method selected additional information may be required, such as: residential or commercial address, as applicable, name on the account, account type, routing number, account number, email address, payout currency, identification number and account information associated with a particular payment processor. Providing requested information is required for a Payout Method to be valid. The information Eqpme requires for a valid Payout Method may change, and Eqpme may request additional information at any time; failing to provide requested information may result in Eqpme temporarily placing a hold, suspending, or canceling any Payout until the information is provided and, if necessary, validated. You authorize Eqpme to collect and store your Payout Method information. Eqpme may also share your information with governmental authorities as required by applicable law.
(iii) Payout: Your Payout for a booking will be the total amount of the Transaction less all applicable fees which include, without limitation, (a) the Eqpme Service Fee, (b) all processing fees and (c) any applicable taxes thereon. In the event of cancellation of a confirmed booking, Eqpme will remit the amount you are due (if any) as provided in the Terms together with any applicable Master Services Agreement and cancellation policy.
(iv) Payout Restrictions: Eqpme may temporarily place a hold, suspend, or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or completing an investigation; or if we are unable to verify your identity, or to obtain or verify requested information.
(v) Pre-Authorized Collections by: (a) Owners or (b) Eqpme on behalf of Owners: Owners acknowledge and agree that:
a. Eqpme has no obligation whatsoever to formally intervene in any collection action between an Owner and a Customer whatsoever. The Platform and Storefronts are designed to provide the software and technological solutions to facilitate e-commerce between Owners and Customers;
b. Invoicing will be the primary self-help collection tool available to an Owner in the event that any post-Transaction fees of any kind are incurred by a Customer pursuant to the Terms, the Rental Terms or any applicable Owner Terms;
c. The use of any supplemental collection tools and services for qualifying Storefronts are a privilege and not a right which may be made available in certain circumstances determined by Eqpme in its sole, absolute and unfettered discretion;
d. The collection tools and services require reasonable proof in each instance to support the basis of any given collection action;
e. If the collection tool(s) or service(s) are abused in any manner (including if insufficient proof is provided), then Eqpme reserves the right to disable, modify and/or restrict this feature for or on behalf of any particular Owner, in whole, in part, temporarily, permanently or otherwise, as may be required in its sole, absolute and unfettered discretion;
f. Customers will be notified through an automated process that any given collection action has been initiated by an Owner relating to a Transaction and provided with a reasonable opportunity to respond and/or dispute any collection action;
g. To mitigate chargeback risks, if applicable, Eqpme will not release any funds obtained through a pre-authorized collection action for such period of time as determined by Eqpme from time to time up to a maximum of one hundred twenty (120) days, depending on the Payment Method utilized.
(vi) Limits on Payouts: For compliance or operational reasons, Eqpme may limit the amount of a Payout. If you are due an amount above that limit, Eqpme may make a series of Payouts (potentially over multiple business days) in order to provide your full Payout amount.
(viii) Handling of Funds: Eqpme may combine amounts that it collects from Customers and invest them as permitted under applicable laws. Eqpme will retain any interest or other gains of any kind or description it earns on those investments.
(ix) Your Payout Method, Your Responsibility: Eqpme is not responsible for any loss suffered by you as an Owner as a result of incorrect Payout Method information provided by you.
(x) Payment Authorization: As an Owner subscribing to any applicable Services including, without limitation, Storefronts, you authorize Eqpme to charge your designated Payment Method (including charging more than one (1) Payment Method), either directly or indirectly, for all fees due (including any applicable taxes) in connection with your Account. For greater clarity, you hereby authorize Eqpme to use and charge your stored Payment Method to cover any balances owing in connection with the Services, in general, including, without limitation, outstanding payments, fines, fees and damages (e.g., late fees, processing fees, claims costs and related administrative fees) all in accordance herewith. You further authorize Eqpme to deduct payment for amounts owing to Eqpme from any amounts held by Eqpme for or on Your behalf from time to time, if determined to be necessary or expedient by Eqpme in it’s sole, absolute and unfettered discretion.
(xi) Automatic Update of Payment Method: If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, Eqpme may acquire that information from our financial services partners or your bank and automatically update your Payment Method on file.
(xii) Payment Details Collection & Use: When you provide Eqpme with a Payment Method, you expressly authorize Eqpme, or any third-party service providers acting on Eqpme’s behalf, to collect and store your Payment Method information for future use in the event you owe any monies pursuant to these Terms.
15.2 Promotional Codes
Eqpme may, in our sole, absolute and unfettered discretion, create promotional codes from time to time that may be redeemed for Account credit, or other features or benefits related to any fees charged for using the Services provided on the Platform, subject to any supplemental terms that Eqpme may establish on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Eqpme; (iii) may, as permitted by law, be disabled by Eqpme at any time without liability to Eqpme; (iv) may only be used pursuant to the specific terms that Eqpme establishes for such Promo Code; (v) have no cash value; and (vi) may expire prior to your use. Eqpme reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other User in the event that Eqpme reasonably determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of these Terms.
15.3 Customer Referral Program
Eqpme may, in its sole, absolute and unfettered discretion, create, amend and/or or terminate any type of Customer referral program (the “Customer Referral Program”) relating to its Services and reward any valid referrals in such a manner as it deems fit. For the purposes of any such Customer Referral Program, a User may become a “Referrer” by making referrals to friends, family members or colleagues that subsequently result in a Transaction completed on the Platform.
Unless otherwise stated, rewards have no monetary value and may not be redeemed for cash. They are not transferable and may not be auctioned, traded, bartered or sold. Rewards are subject to verification. Eqpme may delay a reward for the purposes of investigation. Eqpme may also refuse to verify and process any Transaction for any reason.
A Referrer cannot refer to themselves or create multiple, fictitious or fake accounts with Eqpme. No User may use the Customer Referral Program to violate any law, infringe or violate the rights of any third party, or otherwise act in a manner that is deemed harassing, harmful, illegal, hateful, obscene or outside the spirit and intent of the Customer Referral Program. In addition, you may not (i) tamper with the Customer Referral Program, (ii) act in an unfair or disruptive manner, or (iii) use any system, bot or other device or artifice to participate or receive any benefit in the Customer Referral Program. This includes, but is not limited to, a general prohibition on posting of the referral codes on any website which offers the referral code to anyone other than individuals to whom you personally know. If we believe that a referral code associated with a User’s account was used in such a manner, we reserve the right to remove all credit associated with that Account and remove the User from the Platform as well as initiate proceedings to reclaim any amounts paid out to said Account, regardless of the date of payment and the date of discovery of the suspect activity.
CAUTION: ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PLATFORM MAY BE IN VIOLATION OF CRIMINAL AS WELL AS CIVIL LAWS. SHOULD SUCH AN ATTEMPT BE MADE, EQPME RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING REFERRING ANY CONDUCT TO THE RELEVANT AUTHORITIES FOR CRIMINAL PROSECUTION.
15.4 Payment Processing
Payment processing services are currently provided by Stripe and subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement (collectively, the “Stripe Terms”). In countries where you receive payment proceeds via Stripe, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Eqpme enabling payment processing services through Stripe, you authorize Eqpme to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate sharing of your piece(s) of equipment. You further agree to provide accurate and complete information about you, and authorize Eqpme to share it and transaction information with Stripe for the purposes of facilitating payment processing services provided by Stripe. Eqpme reserves the right to switch payment processing providers at its sole, absolute and unfettered discretion. By using the payment system Stripe, you will receive your payment approximately ten (10) business days after the rental Transaction is complete. You will be paid directly from Stripe.
You understand and acknowledge that appropriate governmental agencies, departments, or authorities may take the position that you owe taxes in connection with your profits made as a result of your use of the Services. It is your responsibility to familiarize yourself with any and all applicable tax rules and regulations and to consult with your personal/business tax advisor. It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Services (“Taxes”).
We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Notwithstanding the integration of any third-party software (such as Avalara) into the Platform which may assist in such determinations, we take no responsibility for the accuracy thereof and any use or reliance on such systems by any User is subject to the applicable terms and conditions of use of any such third-party.
Users are solely responsible for the collection, filing and payment of Taxes in their jurisdiction. Eqpme makes no representations or warranties regarding how taxing authorities in any jurisdiction will treat income earned by Owners utilizing the Services. Amounts received by Owners from transactions using the Platform are inclusive of any Taxes which may be required to be paid by the Owner. EQPME is not responsible for remittance of any Taxes on behalf of any User. Owners are hereby cautioned to ensure that Taxes are taken into consideration when determining a listing price for their Equipment.
15.6 Third-Party Services and Links to Other Websites, Applications, etc.
You acknowledge and specifically consent to our use of third-party service providers as part of the Services, and in particular you authorize us to enter into service contracts that we deem necessary or appropriate to provide the Services. The providers and services may change from time to time, without notice being sent to you and you acknowledge that your consent is not required for us to change service providers. You authorize us to disclose to third-party service providers the information necessary to receive their service. You authorize us to accept the terms and conditions, including any applicable privacy policies, as determined in our sole, absolute and unfettered discretion, of third-party service providers we choose to engage. You waive the right to any and all claims against us for any liability arising out of the use of third-party service providers, including without limitation for disclosures of confidential information.
15.7 Collection of Fees
Eqpme will employ all legal methods available to collect unpaid amounts, including the engagements of collection agencies or legal counsel. Eqpme, or the collection agencies we retain, may also report information about your Eqpme Account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your Eqpme Account may be reflected in your credit report. In addition to the amount due, delinquent accounts and/or chargebacks will be charged with fees and/or charges that are incidental to the collection of delinquent accounts and/or chargebacks including, but not limited to, collection fees, convenience fees, and/or other third-party charges. You hereby explicitly agree that all communication in relation to delinquent accounts may be made by e-mail or phone, as provided to Eqpme by you. Such communication may be made by Eqpme or by anyone on its behalf, including but not limited to a third-party collection agent. If you wish to dispute the information Eqpme reported to a credit bureau (i.e., Experian, Equifax, or TransUnion) please contact email@example.com. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Eqpme Account, you should contact the collection agency directly.
15.8 Data Charges
Data charges may apply when you download and use the Services over a cellular network or otherwise. You are responsible for all data or service charges in connection with downloading and use of the Services.
16. Violation and Enforcement
16.1 Policy Enforcement
When an issue arises, without limitation, we may consider any of the following in our sole, absolute and unfettered discretion:
(i) the User’s Account rating, performance history, compliance record and, in appropriate circumstances, if any infringing action is relating to a specific-Authorized User under an Account,
(ii) the tier of the User in any applicable reward and/or performance programs then in place; and
(iii) the specific circumstances of the case and conduct of the parties,
in applying these Terms. We may enforce these Terms in strict accordance herewith or we may choose to be more lenient with enforcement in our sole, absolute and unfettered discretion.
Eqpme has the right, but not the obligation, to investigate, pursue, and seek to prosecute, litigate, or refer to law enforcement violations of the Terms to the fullest extent permissible at law. Eqpme may access, preserve, and disclose any of your information if we are permitted or required to do so by law; if we believe in good faith that it is reasonably necessary to respond to claims asserted against Eqpme or to comply with permissible legal process (for example, subpoenas or warrants); to enforce or administer these Terms; to do so for fraud prevention, risk assessment, investigation, customer support, product development, and debugging purposes; and/or to protect the rights, property, or safety of Eqpme, its employees, its users, or members of the public.
Eqpme reserves the right, at any time and without prior notice, in accordance with applicable law, to remove or disable access to any content that Eqpme, in its sole, absolute and unfettered discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Services or our community. If we believe you are abusing Eqpme, our users or employees or in any way are violating the letter or spirit of any of these Terms, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your Eqpme Account(s) and access to our Services, remove Owner content, remove and/or demote your listings, reduce and/or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our sole, absolute and unfettered discretion to the full extent permitted under applicable law.
16.3 Liquidated Damages
You acknowledge that the actual damages likely to result from you: (i) engaging in gray market transactions (i.e., using Eqpme to find a Customer or Equipment, and then completing a reservation or related transaction partially or wholly independent of Eqpme, in order to circumvent the obligation to pay any Eqpme Fees), (ii) registering domains, social media handles, bidding on keywords, or otherwise using the Eqpme domains, trademarks, or taglines; or (iii) suing or making claims against another User are difficult to estimate and would be difficult for Eqpme to prove. You therefore acknowledge and agree that the administrative costs associated with any such conduct shall be, at a minimum, equivalent to the greater of: (a) FIVE THOUSAND UNITED STATES DOLLARS ($5,000.00 USD) or (b) the equivalent Eqpme Service Fee plus applicable taxes for any contemplated Transaction that is so diverted which Eqpme is able to reasonably prove and you hereby agree to pay Eqpme such amount as liquidated damages, and not as a penalty, to compensate Eqpme for each and every occurrence relating to any such conduct.
You may discontinue your use of the Services at any time by deleting your Account and refraining from further use of the Services. If Eqpme determines, in its sole, absolute and unfettered discretion, that a User is violating the Terms in any way, shape or form, Eqpme may, without limitation: (i) suspend any use of the Services, (ii) remove any Materials including, without limitation, any listings for any reason, or no reason, or (iii) disable and/or terminate the User Account together with any associated Authorized Users linked to such Account. Termination of access to the Services will not release a party from any obligations hereunder. Users will pay to Eqpme any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs, if applicable. Any form of licenses and use rights granted to a User with respect to the Services, including with respect to intellectual property, will immediately terminate. Eqpme may retain and continue to use any information, including, but not limited to, photography, previously provided by you.
TERMINATION OF YOUR USE OF, OR ACCESS TO, THE SERVICES WILL NOT HAVE ANY EFFECT ON THE TAX RESPONSIBILITIES OF EQPME AS SET OUT HEREIN OR UNDER ANY APPLICABLE LAWS AS WELL AS ANY DISCLAIMERS, WAIVER OR LIABILITY LIMITATIONS, OR LEGAL DISPUTES PROVISIONS UNDER THE AGREEMENT AND/OR ANY FEES DUE, AND ALL OF THOSE TERMS WILL SURVIVE: (I) YOUR DISCONTINUATION OF USE OF THE SERVICES, (II) THE DELETION OF YOUR ACCOUNT AND (III) ANY OTHER PURPORTED OR ACTUAL TERMINATION HEREOF OR OF ANY OTHER AGREEMENT BETWEEN YOU AND EQPME.
18. Disclaimer of Warranties
WE PROVIDE THE PLATFORM, SERVICES AND ALL CONTENT, INCLUDING ANY AND ALL INFORMATION, USER CONTENT, MATERIALS AND USAGE DATA, (COLLECTIVELY, THE “DISCLAIMED ITEMS”) ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. YOUR USE OF THE DISCLAIMED ITEMS SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE AT LAW, EQPME AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES AND LICENSORS (COLLECTIVELY, THE “EQPME PARTIES”) HEREBY: (A) MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (B) EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE; AND (C) DO NOT WARRANT THAT THE DISCLAIMED ITEMS ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM YOUR USE OF THE DISCLAIMED ITEMS. FOR CLARITY, “EQPME PARTIES” INCLUDES REFERENCE TO EQPME.
MOREOVER, THE EQPME PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT DISCLAIMED ITEMS HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY THEREOF, AND ASSUME NO RESPONSIBILITY FOR ANY: (I) ANY ERRORS, MISTAKES OR INACCURACIES RELATED THERETO, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE DISCLAIMED ITEMS, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE DISCLAIMED ITEMS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SERVICES, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE DISCLAIMED ITEMS, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE DISCLAIMED ITEMS THROUGH THE ACTIONS OF ANY THIRD-PARTY, (VI) ANY LOSS OF YOUR DATA OR OTHER CONTENT FROM THE DISCLAIMED ITEMS, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE DISCLAIMED ITEMS. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE EQPME PARTIES TO ANY THIRD-PARTY.
WE DO NOT ENDORSE OR WARRANT THE EXISTENCE, CONDUCT, PERFORMANCE, SAFETY, QUALITY, LEGALITY OR SUITABILITY OF ANY OWNER, CUSTOMER, EQUIPMENT, LISTING OF EQUIPMENT OR THIRD-PARTY;
WE DO NOT WARRANT THE PERFORMANCE OR NON-INTERRUPTION OF THE PLATFORM;
WE DO NOT REPRESENT OR WARRANT THAT VERIFICATION, IDENTITY OR BACKGROUND CHECKS WILL BE CONDUCTED ON ANY OWNER OR CUSTOMER;
WE DO NOT WARRANT HOW TAXING AUTHORITIES IN ANY JURISDICTION WILL TREAT INCOME EARNED BY OWNERS UTILIZING THE SERVICES;
WE DO NOT WARRANT THAT THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE LISTING AND/OR ANY EQUIPMENT OR OPTIONAL EXTRA, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; AND
WE DO NOT WARRANT THE QUALITY OF ANY LISTINGS, EQUIPMENT, OWNERS, CUSTOMERS, EXTRAS, THE SERVICES, OR ANY CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. THE DISCLAIMERS IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU HAVE STATUTORY RIGHTS OR WARRANTIES WE CANNOT DISCLAIM, THE DURATION OF ANY SUCH STATUTORILY REQUIRED RIGHTS OR WARRANTIES, WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
EQPME PROVIDES SERVICES THAT ENABLE, WITHOUT LIMITATION, THE RENTING OR BUYING OF EQUIPMENT AND OPTIONAL EXTRAS BETWEEN OWNERS AND CUSTOMERS. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, EQPME DOES NOT ITSELF PROVIDE EQUIPMENT SHARING OR RENTAL SERVICES AND/OR INSURANCE SERVICES AND IS NOT RESPONSIBLE FOR ANY OF THE ACTS OR OMISSIONS OF ANY OF THE USERS OF ITS SERVICES, OR THE SAFETY, USABILITY OR MANUFACTURE OF THE EQUIPMENT OR ANY OPTIONAL EXTRAS, OR ANY THIRD-PARTY PROVIDER OF SERVICES (E.G. EQUIPMENT GPS OR OTHER SYSTEMS).
ALL DOCUMENTS SUPPLIED BY EQPME ARE SAMPLES ONLY NOT FOR USE OR DISSEMINATION WITHOUT PRIOR LEGAL ADVICE. EQPME IS NOT A LAW FIRM AND CANNOT, AND DOES NOT PURPORT TO, PROVIDE LEGAL ADVICE. WE PROVIDE INFORMATION AND SOFTWARE AND YOU ARE RESPONSIBLE FOR APPROPRIATELY USING THIS MATERIAL. NOTHING IN THE EQPME TERMS SHALL BE CONSTRUED OR RELIED ON AS ADVERTISING OR SOLICITING TO PROVIDE ANY LEGAL SERVICES, CREATING ANY SOLICITOR-CLIENT RELATIONSHIP OR PROVIDING ANY LEGAL REPRESENTATION, ADVICE OR OPINION WHATSOEVER ON BEHALF OF THE EQPME PARTIES.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE (A) ADVERTISED OR OFFERED BY A THIRD-PARTY IN ASSOCIATION WITH THE SERVICES, OR (B) ANY HYPERLINKED WEBSITE, ANY SERVICE FEATURED IN ANY BANNER OR ANY OTHER ADVERTISING. WE ARE NOT A PARTY TO, NOR WILL WE IN ANY WAY MONITOR, ANY ACTIVITIES OR TRANSACTIONS BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES WITH WHOM YOU COMMUNICATE OR INTERACT WITH AS A RESULT OF YOUR USE OF THE SERVICES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages as set out in the Terms. Accordingly, some of these limitations may not apply to you.
19. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THE EQPME PARTIES SHALL NOT BE LIABLE TO YOU FOR, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, COVER, PUNITIVE,EXEMPLARY OR SIMILAR DAMAGES ARISING OUT OR RELATED TO THE USE OF THE DISCLAIMED ITEMS INCLUDING, BUT NOT LIMITED TO, GOOD WILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE BEING, WITHOUT LIMITATION, EITHER ACTIVE, AFFIRMATIVE, SOLE OR CONCURRENT), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:,
(B) THIS LIMITATION OF LIABILITY SHALL INCLUDE YOUR WAIVER OF ANY AND ALL RIGHTS TO SUE OR MAKE CLAIMS AGAINST ANY OF THE EQPME PARTIES FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE DISCLAIMED ITEMS INCLUDING, WITHOUT LIMITATION, (I) EQUIPMENT AVAILABILITY (E.G. EQUIPMENT NOT BEING AVAILABLE OR RETURNED WHEN IT WAS SUPPOSED TO BE), (II) PROBLEMS WITH THE EQUIPMENT (E.G. ANY MALFUNCTION OF OR DEFICIENCY IN EQUIPMENT), (III) EQUIPMENT WARRANTY ISSUES (E.G. ANY BREACH OF WARRANTY OR OTHER OBLIGATION BY ANY MANUFACTURER OR OTHER THIRD PARTY ASSOCIATED WITH THE EQUIPMENT), (IV) THE LEGAL OR LICENCE STATUS OF A EQUIPMENT, OWNER OR CUSTOMER, (V) THIRD-PARTY ASSESSMENTS OF ANY EQUIPMENT VALUE, (VI) ANY ACTION OR INACTION OF A CUSTOMER OR OWNER OR (VII) ANY PERSONAL INJURY OR PROPERTY DAMAGE SUFFERED BY YOU OR ANY OTHER THIRD-PARTY.
EQPME HAS NO RESPONSIBILITY AND ASSUMES NO LIABLITY FOR DISPUTES BETWEEN OWNERS AND CUSTOMERS.
CAP ON DAMAGES:
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE OWNERS OR CUSTOMERS PURSUANT TO THESE TERMS, THE TOTAL, OR AGGREGATE, LIABILITY OF ALL EQPME PARTIES TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF ANY OF THE DISCLAIMED ITEMS WE SUPPLY YOU (INCLUDING, WITHOUT LIMITATION, WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE BEING, WITHOUT LIMITATION, EITHER ACTIVE, AFFIRMATIVE, SOLE OR CONCURRENT) OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE GREATER OF: (I) THE AMOUNTS YOU PAID TO EQPME FOR ITS SERVICES OVER THE PAST THIRTY (30) CALENDAR DAYS (NOT INCLUDING AMOUNTS PAID TO OWNERS FOR ANY PARTICULAR TRANSACTION(S)) OR (II) ONE HUNDRED CANADIAN DOLLARS (CAD $100.00). THE EXISTENCE OF MORE THAN ONE (1) CLAIM SHALL NOT ENLARGE THIS LIMIT.
THE LIMITATIONS OF LIABILITY FOR DAMAGES OR CAPS THEREON SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EQPME AND YOU.
HOWEVER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION, LIMITATION OR CAPS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SUCH AS, CONSEQUENTIAL OR INCIDENTAL DAMAGES. AS SUCH, PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH EXCLUSIONS, LIMITATIONS AND/OR CAPS, AS APPLICABLE, SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW (AND EQPME’S LIABILITY SHALL BE LIMITED, EXCLUDED AND/OR CAPPED AS PERMITTED UNDER ANY SUCH MANDATORY APPLICABLE LAW).
EQPME TAKES NO RESPONSIBILITY FOR ASSISTING IN RECOVERY OF ANY FEES, CHARGES, COSTS OR EXPENSES OF ANY KIND OR DESCRIPTION WHATSOEVER RELATED TO DAMAGED EQUIPMENT.
INDEPENDENT ALLOCATIONS OF RISK:
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES REPRESENTS AN AGREED ALLOCATION OF THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THESE TERMS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
THIS PROVISION SHALL HAVE NO EFFECT ON EQPME’S CHOICE OF LAW PROVISION SET OUT HEREIN.
To the extent permitted by applicable law, you agree to release, defend, indemnify, and hold Eqpme and its subsidiaries, officers, directors, employees, suppliers, consultants, affiliates and agents, harmless from and against any claims, liabilities, damages, losses, expenses and costs including, without limitation, legal fees on an attorney-client basis and commercially reasonable accounting fees, arising out of or in any way connected with, as applicable: (a) your access to or use of the Services or your violation of these Terms; (b) the nature and substance of all your User Content uploaded to the Services; (c) your interaction with any User, booking of a piece(s) of equipment, or creation of a listing for any one (1) or more pieces of Equipment; (d) the use, condition, including, but not limited to, any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a booking, sharing, or use of a piece(s) of Equipment or optional Extra; or (e) infringement of any intellectual property or other right of any person or entity by you.
The sole recourse of a Customer or Owner, as applicable, regarding a violation in respect of the reservation of Equipment hereof shall be to report the violation and request the Equipment, the Owner and/or the Customer be removed from the Platform.
We retain the exclusive right to settle, compromise, and pay, without your prior consent or knowledge, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent, in our sole, absolute and unfettered discretion. We will use commercially reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
21. Arbitration & Waiver of Class Actions Applicable to Users
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Eqpme on an individual-basis in arbitration as set forth herein and not as a class, collective, coordinated, consolidated, mass and/or representative action. This Arbitration provision precludes you from bringing any class, collective, coordinated, consolidated, mass and/or representative action against Eqpme, and also precludes you from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, mass and/or representative action brought against Eqpme by someone else. Nothing here prevents you from filing a claim with a government agency.
You are hereby advised that there is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of these Terms as a court world.
This provision shall survive the termination of your contractual relationship with Eqpme.
21.1 Covered Disputes
Section 21 of these Terms is intended to be interpreted broadly. You and Eqpme agree that any dispute, claim or controversy in any way arising out of or relating to: (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver or validity thereof; (ii) any tort, statute, fraud, misrepresentation or any other legal theory; (iii) your access to or use of the Services at any times; (iv) incidents or accidents resulting in a personal injury to you or anyone else that you allege occurred in connection with your use of the Services (including, but not limited to, your use of the Platform), regardless of whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, and regardless of whether you allege that the personal injury was experienced by you or anyone else; and (v) your relationship with Eqpme, will be settled by binding individual arbitration between you and Eqpme, and not in a court of law.
21.2 Class Action Waiver
You acknowledge and agree that any and all disputes, claims or controversies between the parties shall be resolved only in individual arbitration. The parties expressly waive the right to have any dispute, claim or controversy brought, heard, administered, resolved, or arbitrated as a class, collective, coordinated, consolidated and/or representative action, and neither an arbitration nor an arbitration provider shall have any authority to hear, arbitrate or administer any class, collective, coordinated, consolidated and/or representative action, or to award relief to anyone but the individual in the arbitration. The parties also expressly waive the right to seek, recover or obtain any non-individual relief. Notwithstanding anything else in this Agreement, this Class Action Waiver does not prevent you or Eqpme from participating in a class-wide, collective and/or representative settlement of claims.
The parties further agree that if for any reason a claim does not proceed in arbitration, this Class Action Waiver shall remain in effect, and a court may not preside over any action joining, coordinating or consolidating the claims of multiple individuals against Eqpme in a single proceeding, except that this Class Action Waiver shall not prevent you or Eqpme from participating in a class-wide, collective and/or representative settlement of claims. If there is a final judicial determination that any portion of this Class Action Waiver is unenforceable or unlaw for any reason, (i) any class, collective, coordinated, consolidated and/or representative claims subject to the unenforceable or unlawful provision(s) shall proceed in a court of competent jurisdiction subject only to the Section 21.8 below; (ii) the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration; (iii) the unenforceable or unlawful portion(s) shall be severed from these Terms; and (iv) severance of the unenforceable or unlawful provision(s) shall have no impact whatsoever on the enforceability, applicability or validity of the remainder of these Terms or the arbitrability of any remaining claims asserted by you or Eqpme.
21.3 Delegation Clause
Only an arbitrator, and not any federal, state or local court, tribunal or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation hereof including, without limitation, any claim that all or part hereof is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues including, without limitation, issues relating to whether the Terms are applicable, unconscionable, or illusory and any defense to arbitration including, without limitation, waiver, delay, laches or estoppel. However, only a court of competent jurisdiction, subject to Section 21.8 below, and not an arbitrator, shall have the exclusive authority to resolve any and all disputes arising out of or relating to the Class Action Waiver.
21.4 Application to Third-Parties
These Terms shall be binding upon, and shall include any claims brought by or against any third-parties including, but not limited to, your spouses, heirs, successors, third-party beneficiaries and assigns, where their underlying claims arise out of or relate to your use of the Services. To the extent that any third-party beneficiary brings claims against the Eqpme Parties, those claims shall also be subject hereto.
21.5 Pre-Arbitration Dispute Resolution and Notification
The parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. The parties therefore agree that, before either party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered hereby. Multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within thirty (30) days after the other party receives such notice, unless an extension is mutually agreed upon by the parties in writing.
To notify Eqpme that you intend to initiate an informal dispute resolution conference, write to Eqpme Inc., Attn: Legal Department, 270 Toryork Drive, Toronto, Ontario, Canada, M9L 1Y1, providing your name, the telephone number(s) and email address associated with your Account and a description of your claim. Engaging in an informal dispute resolution conference is a condition precedent that must be fulfilled before commencing arbitration, and the Arbitrator shall dismiss any arbitration demand filed before completion of an informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
Initiating Arbitration. In order to initiate arbitration following the conclusion of the informal dispute resolution process required by this Section, a party must provide the other party with a written demand for arbitration and file the demand with the applicable Arbitration Provider, as determined by Section 21.6. A party initiating an arbitration against Eqpme must send the written demand for arbitration to Eqpme Inc., Attn: Legal Department, 270 Toryork Drive, Toronto, Ontario, Canada, M9L 1Y1. Additionally, a party initiating arbitration against Eqpme must send an electronic version of the demand for arbitration to the applicable Arbitration Provider, defined below, and must send an electronic version of the as-filed demand to firstname.lastname@example.org.
21.6 Agreement to Binding Arbitration between You and Eqpme
Unless prohibited by law, all Covered Disputes defined in Section 21.1 of this Arbitration Agreement shall be finally and conclusively adjudicated and resolved by arbitration in accordance with the Arbitration Act (Ontario), as same may be amended or restated from time to time (the “Arbitration Act”), subject to all procedural modifications further set out herein. For any and all disputes, claims or controversies relating to the Services, the parties agree that, in addition to the Arbitration Act, either the:
(i) Simplified Arbitration Procedure set out under the Arbitration Rules of the ADR Institute of Canada, Inc. (“ADRIC”), except as otherwise modified herein (the “Simplified Rules”); or
(ii) Expedited Arbitration Procedure set out under the Expedited Arbitration Rules of the Canadian Arbitration Association, except as otherwise modified herein (the“Expedited Rules”),
shall apply (individually or collectively, as applicable, the “Arbitration Rules”). If the parties cannot reach a consensus on which Arbitration Rules to select, then Eqpme shall have the right to select from the Arbitration Rules named above in its sole, absolute and unfettered discretion. For clarity, in the event of a conflict between the Arbitration Act, the Simplified Rules or the Expedited Rules, as applicable, and the Terms set out herein, the Terms shall prevail to conclusively establish the applicable arbitration procedure for the parties relating to any Covered Disputes. Any settlement offer made by you or Eqpme shall not be disclosed to an arbitrator.
Notwithstanding anything to the contrary contained in the Arbitration Act or the applicable Arbitration Rules, the following rules shall govern the arbitration procedure: a) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions with such determination based on the requirements set out herein; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction and d) only one (1)arbitrator shall be selected by consensus in writing between the parties, failing which, same shall be selected by Eqpme from its then applicable roster list based on the nature of the Covered Dispute
Where the relief sought is $50,000 or less in United States Dollars (not including attorneys' fees and expenses), then the arbitrator shall limit the proceeding to written submissions only. Where the relief sought is $50,001 or more in United States Dollars (not including attorneys’ fees and expenses), the arbitrator shall instruct the parties to provide limited discovery and streamlined proceedings.
To the extent applicable, the parties agree that the arbitration: (i) shall be in English, (ii) conducted remotely by telephone or video-conferencing and (iii) the substantive law ofToronto, Ontario, Canada will apply without regard to any conflict of law provisions.
The parties acknowledge and agree that arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. An arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Where permitted, the parties agree that all communications, evidence, and rulings in the arbitration will remain strictly confidential, except as reasonably necessary to enforce or implement such rulings or these Terms.
21.7 Exceptions to Requirement to Arbitrate
The parties may agree not to arbitrate when:
The dispute or claims that can be brought in small claims court in Ontario, Canada so long as the matter remains in such court and advances only on an individual basis; or
When a party requires injunctive or equitable relief to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual-basis only. On an “individual-basis” means that you cannot bring such claims as a class, collective, coordinated, consolidated, mass and/or representative action against Eqpme. The parties’ agreement not to require arbitration in these limited circumstances does not waive the enforceability of any part or portion hereof.
21.8 Arbitration Venue & Judicial Forum
Notwithstanding anything to the contrary contained herein, you and Eqpme agree to submit to the personal jurisdiction of any court of competent jurisdiction in Toronto, Ontario, Canada in order to compel arbitration, stay proceedings pending arbitration or to confirm, modify, vacate or enter judgement on the award entered by the arbitrator.
In the event that Section 21.7 applies, then any claim or dispute that has arisen or may arise between the parties will be resolved exclusively by a court of competent jurisdiction located in: Toronto, Ontario, Canada. The parties further agree that the substantive law of Toronto, Ontario, Canada will apply to any such claim or dispute without regard to conflict of law provisions.
21.9 Jury Trial Waiver
The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. You and Eqpme acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Covered Disputes.
22.1 Confidential Information Definition
“Confidential Information” means: information about a disclosing Party’s (or its affiliates’, customers’ or suppliers’) business or activities that is proprietary and confidential, including, without limitation, (i) information expressly or implicitly marked or disclosed as confidential, (ii) information traditionally recognized as proprietary trade secrets, (iii) all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, Intellectual Property that is not the subject of a publicly-available application or registration, and in all instances whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, (iv) the terms of any MSA and (v) all copies of the foregoing, if any.
Confidential Information does not include information (other than information about identifiable individuals) that is (i) lawfully in the public domain, (ii) previously known to or in the possession of the receiving Party free from any obligation to keep it confidential, (iii) independently developed by the receiving Party without any access to or use of Confidential Information of the disclosing party, and (iv) rightfully obtained by the receiving party from a third party lawfully in possession of the information and who is not bound by confidentiality obligations to the disclosing party.
22.2 Obligations, Use and Retention
Each Party will use Confidential Information of the other Party solely for the purpose for which it was provided and retain it for the time period required for that purpose or as otherwise agreed between the Parties. Each Party shall use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts, to prevent disclosing to unauthorized parties the Confidential Information of the other Party.
Each Party may only disclose Confidential Information of the other Party (i) with the prior written consent of that other Party; (ii) to the extent it is legally compelled to do so; and (iii) to its directors, officers, employees, independent contractors, service providers, professional advisers (including internal and external auditors) and governmental and regulatory authorities, in each case to the extent they have a need to know, are informed of the confidential nature of the information, and agree (for a third party through a written agreement) or are otherwise bound to act in accordance with the obligations set out herein.
22.4 Compelled Disclosure
A Party may disclose Confidential Information of the other Party to comply with legal or regulatory requirements on the condition that, if not legally prohibited: (i) it first notifies the other of the requirements; (ii) it gives the other a copy of the requirements and of the Confidential Information to be disclosed; (iii) it discloses only the Confidential Information it is required to disclose; and (iv) the other does not obtain a protective order, injunction, or other appropriate remedy preventing the disclosure.
23. Supplemental Agreements
23.1 ‘Software as a Service’ Subscription Agreement
If, and only to the extent applicable, any Owner enters into any form of separate agreement with Eqpme such as: (i) a Master Services Agreement, or MSA, (ii) an order form or (iii) any online subscription terms (the “Subscription Terms”) (individually or collectively, as applicable, the “Supplemental Agreement”) on a subscription basis to access certain ‘software as a service’, with varying levels of corresponding pricing and functionality, then the following specific provisions shall also be deemed to form an integral part of such Supplemental Agreement:
“Eqpme Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Eqpme or its designee to disable: (a) access to an Owner or any Authorized User of the Owner to or (b) use of, the Hosted Services, as defined in the Supplemental Agreement, automatically with the passage of time or under the positive control of Eqpme or its designee.
Eqpme may, from time-to-time, in its sole discretion engage third-parties to perform any, or all, aspects of the Hosted Services (each, a “Subcontractor”).
(iii) Suspension or Termination of Hosted Services
Eqpme may, directly or indirectly, and by use of an Eqpme Disabling Device or any other lawful means, suspend, terminate or otherwise deny access to, or use of, all or any part of the Hosted Services or Eqpme Materials by Owner, any Authorized User or any other person, without incurring any resulting obligation or liability, if: (a) Eqpme receives a governmental order that expressly, or by reasonable implication, requires Eqpme to do so; or (b) Eqpme believes, in its commercially reasonable discretion, that: (i) the Owner or any Authorized User has failed to comply with, any term of the Supplemental Agreement, or the Terms, accessed or used the Hosted Services beyond the scope of the rights granted or for a purpose not authorized under the Supplemental Agreement, or the Terms, or in any manner that does not comply with any commercially reasonable instructions or requirement of Eqpme; (ii) the Owner or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Hosted Services; or (iii) the Supplemental Agreement expires or is terminated.
23.2 SUPPORT AND TRAINING
(a) Training: Scheduling is subject to availability and any additional terms agreed upon by Eqpme and the User in writing.
(b) Help Desk Support: Eqpme shall provide help desk support during business days in Ontario, Canada from 9:00 a.m. to 5:00 p.m. Eastern Standard Time for the identification, isolation, and resolution of problems (hereinafter, a “Problem”).
(c) Case Establishment; Classification, Problem Correction: Eqpme shall establish a file for each problem reported by a User to Eqpme. The User shall classify each problem into one of the “Severity Level” classifications set forth below. Eqpme shall use commercially reasonable efforts to correct each Problem in accordance with the service level objectives set forth herein:
A “Blocker Issue” is a system failure. It is a defect with a widespread effect on end users, and administrators that has no feasible workaround. A Blocker Issue shall be defined as any defect that has a significant deviation from expected operations. It is a defect that prevents end users or administrators from performing day to day operations and has no feasible workaround. A Blocker Issue is one that has widespread effect across all Accounts or affecting all Users.
A “Critical Issue” is a significant deviation from expected operations. It is a defect that prevents end users or administrators from performing day to day operations and has no feasible workaround. A Critical Issue would otherwise be a Blocker Issue if it had a widespread effect.
A “Major Issue” is a defect that does not have a significant deviation from expected operation but nonetheless has a substantial negative effect on a User's or administrator’s experience with the Platform. A Major Issue prevents Users or administrators from performing an occasional operation or are those defects that would otherwise be Critical Issues or Blocker Issues if not for a temporary workaround.
A “Minor Issue” is any defect that is not a Major Issue, or a Critical Issue, or a Blocker Issue.
(d) While Eqpme will always endeavour to respond more quickly than the estimated times below, the following grid describes the service level objectives and targeted response times for Eqpme in respect of resolving each Problem reported to Eqpme.
(e) Users and Eqpme understand and agree that Eqpme’s obligation is the use of commercially reasonable efforts to achieve a resolution to Problems in accordance with the schedule set out below and that said schedule does not represent an enforceable obligation of Eqpme and same remains subject to all disclaimers and limitations of liability set out elsewhere herein.
|Severity Level||Initial Callback or Email Time||Problem Resolution Effort||Target Problem Resolution|
(24 hours a day x 7 days per week)
(24 hours a day x 7 days per week)
24 Hours or ASAP using
1 Business Day
(7 a.m. to 8 p.m. EST, 5 days per week)
2 Business Days or ASAP using
2 Business Day
(9 a.m. to 5 p.m. EST, 5 days per week)
Next Bug Fix Release
5 Business Days
Commercially Reasonable Efforts
No Target Defined.
(f) Eqpme reserves the right to downgrade the Severity Level assigned to a problem upon review thereof and/or as workarounds or other solutions are provided to lessen the impact. Owner shall provide feedback and Eqpme shall use such feedback when making determinations to downgrade a problem.
24.1 Time of the Essence
Where and to the extent applicable, time shall be of the essence relating to these Terms including, without limitation, any Supplemental Agreement or any other form of agreement entered into between Eqpme and any User. No extension or variation of the Terms shall operate as a waiver of this provision.
24.2 No Transfer or Assignment
Except as otherwise provided herein, Users agree that nothing in these Terms constitutes an actual or purported transfer or assignment of any right or interest in a piece of Equipment or optional Extras available for rent or purchase through the Services. All contracts for such transfers or assignments of rights are separate and apart from the use of the Services by any two or more Users.
24.3 No Agency
Eqpme does not appoint any User(s) as its employee, mandatory, legal agent, nor does any part or portion hereof form any kind of legal partnership or joint venture. You are not authorized to make any commitments on behalf of Eqpme and Eqpme will not make commitments on your behalf, except as expressly stated herein.
24.4 Entire Agreement
The Terms state the entire understanding between you and Eqpme concerning your access to and use of the Services and supersede all other previous iterations hereof and/or any other forms of communication which you may have with Eqpme from time to time. With the exception of appointing a custodian to manage Equipment on your behalf, you may not delegate your legal obligations or transfer any of your rights, in whole or in part, to any third party without advance written consent of Eqpme. You will remain responsible for your obligations and actions hereunder in any event.
24.5 Severability – Unenforceable Provision
If any provision, or any part thereof, contained in these Terms is found to be illegal or unenforceable, then such provision, or part thereof, shall be deemed to be restated to reflect as nearly as possible the original intentions thereof in accordance with applicable law. If such restatement is determined to be impossible, such provision, or part thereof, shall be severed and the remaining portion thereof, if applicable, together with all other provisions will not be affected in any way, shape or form and will continue in full force and effect.
24.6 No Waiver
Eqpme’s failure, delay or refusal to exercise any right herein contained will not constitute a waiver thereof or of any other right Eqpme may have. A waiver by Eqpme of any right, covenant or breach shall not be construed to be a waiver of any other right, covenant or breach whatsoever. Such a waiver shall be valid only if granted by formal instrument in writing which is signed by an authorized representative of Eqpme.
Except as otherwise expressly provided herein, all rights and remedies given to Eqpme are distinct, separate and cumulative and, no one (1) of them, whether or not exercised by Eqpme shall be deemed to be in exclusion of any other rights or remedies provided herein or by law or in equity.
In the event of any breach, or threatened breach, of any provision herein contained concerning Confidential Information or breach of a non-disclosure covenant, Users agree that monetary damages would be an inadequate remedy and Eqpme may seek injunctive relief without recourse to any dispute resolution process or provisions contained herein.
24.7 Force Majeure
In no event shall Eqpme be liable or responsible to any User, or be deemed to have defaulted under or breached any provision of the Terms or any Supplemental Agreement, if applicable, for any delay or failure to perform resulting from causes outside of Eqpme’s reasonable control including, without limitation: (i) acts of God, plague, pandemic, epidemic, quarantine, natural disaster including, but not limited to, landslide, flood, washout, fire, disaster, earthquake, tempest, violent storm, blizzard, damage or destruction by lightning; or (ii) general labour disturbance including, but not limited to, boycott, strike, lock-out, go-slow, or occupation of premises; or (iii) sabotage, rebellion, vandalism, cybercrime, riot, blockade, insurrection or explosion; or (iv) actions of military, naval, or civil authority, a public enemy, war, revolution, riots, civil or political disturbances or commotions, rebellions, emergencies of a national, provincial/state or regional scope or terrorism; or (v) power failure or non-availability of labour, telecommunications, transportation facilities, material services, goods, equipment and utility required to enable Eqpme to fulfill such obligations; or (vi) by reason of any statute, law, order-in-council, or any regulation or order passed or made pursuant thereto, or by reason of the order or discretion of any administrator, controller, board, governmental department, officer or other authority, or by reason of not being able to obtain permission or authority required thereby; or (viii) by reason of any other cause beyond Eqpme’s reasonable control, or not wholly or mainly within its control, whether of the foregoing character or not (each of the foregoing, a “Force Majeure Event”).
Headings are for reference purposes only and do not limit the scope or extent of such section.
24.9 Changes Required by Context
The Terms shall be read with all changes of gender and number as required by the context.
Where Eqpme has provided you with a translation of the English language version of these Terms or any Policies, in case of any wording discrepancies between the English and any other versions of the Terms and any Policies, the English language wording shall take precedence.
24.11 No Contra Proferentem
Notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against Eqpme by reason of the authorship of any provisions of the Terms including, without limitation, any MSA or other any other forms of agreements which may from time to time be entered into between Eqpme and any User of the Services.
24.12 References to Statutes
Any reference to a statute in the Terms including, without limitation, any MSA or other form of agreement entered into between Eqpme and any User includes a reference to all regulations made pursuant to such statute, all amendments made to such statute and regulations in force from time to time and to any statute or regulation which may be passed and which has the effect of supplementing or superseding such statute or regulations.
24.13 Accord and Satisfaction
No payment by any User, or receipt by Eqpme, of a lesser amount than the total amount payable to Eqpme pursuant to any applicable payment obligations set out herein shall be deemed to be other than on account of the earlier stipulated sum owing, nor shall any endorsement or statement on any cheque or any letter accompanying any cheque or payment be deemed an accord and satisfaction, and Eqpme may accept such cheque or payment without prejudice to Eqpme’s rights to recover the balance of such amount owing or pursue any other right or remedy provided for herein.
24.14 Continued Survival
These Terms bind you and your respective heirs, representatives and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
Any notice or other communication required or permitted to be delivered to any User for any purpose whatsoever shall be delivered by e-mail to the e-mail used set up an Account (or for Users with multiple Accounts to the e-mail of the Global Administrator(s)). Any notice or other communication required or permitted to be delivered to Eqpme for any purpose whatsoever aside from legal matters shall be delivered by email to email@example.com. Legal enquiries are to be delivered to firstname.lastname@example.org.
24.16 Survival of Indemnities & Covenants
All: (i) User indemnities and (ii) obligations of any User of the Services which arise in connection herewith or, if applicable, any Supplemental Agreement which have not been satisfied as required in accordance with the applicable governing terms shall survive: (a) the expiration of any applicable contractual period, (b) the termination of any User Account for a breach of these Terms or any Supplemental Agreement and (c) the termination by any User of its use of the Services.