These Terms and Conditions of Rent-A-PC, Inc. dba SmartSource (“SmartSource”) shall govern the use of SmartSources’ various software-as-a-service solutions (the “SaaS Solution(s)”) and the rental of those items of equipment and personal property (collectively, the “Equipment”), in each case as listed on the attached Scope of Work (the “SOW”) between SmartSource and the customer identified thereon (“Customer”) and the provision of any information technology support or other services listed on the SOW (collectively, “the Services”). As used herein, the term “Agreement” shall refer to these Terms and Conditions together with the SOW. For the avoidance of doubt, if Customer has not ordered any particular service (e.g., Equipment rental) from SmartSource under the SOW, then the terms herein solely with respect to such unordered service (e.g., terms regarding the rental and use of the Equipment) shall not apply.
GRANT OF ACCESS: SmartSource grants to Customer a non-assignable, non-exclusive, non-transferable right to access and use the SaaS Solution(s) solely in connection with the Services. CUSTOMER MAY NOT REVERSE ENGINEER, USE, COPY OR MODIFY ANY SAAS SOLUTION(S) OR RELATED MATERIALS IN WHOLE OR IN PART. WITHOUT LIMITING ANY RIGHTS OR REMEDIES SMARTSOURCE MAY HAVE AGAINST CUSTOMER, IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY OR MODIFICATION OF THE SAAS SOLUTIONS(S) OR RELATED MATERIALS TO ANOTHER PARTY, CUSTOMER’S LICENSE IS AUTOMATICALLY TERMINATED WITHOUT ANY REFUND OF PRE-PAID FEES.
RESTRICTIONS ON USE: Customer may not use the SaaS Solution(s) to provide subscription services, training services, consulting services, resale or rental use to third parties without SmartSource’s prior written consent in each instance. No license, express or implied, is being granted to Customer under any intellectual property directly or indirectly owned by SmartSource, nor shall any license, except the license specifically granted herein, be implied in law or equity. Customer may not sublicense, assign, or transfer the license or the SaaS Solution(s) and related materials without the prior written consent of SmartSource. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties, or obligations hereunder without such consent is void. To the extent that a third party owns and has licensed to SmartSource any portion of the SaaS Solution(s), such third party owner shall be a beneficiary of this Agreement, and shall have the right to enforce its rights under this Agreement independently of SmartSource.
SECURITY PRODUCTS: As one of SmartSource’s SaaS Solution(s) (and subject to all terms of the Agreement applicable to SaaS Solution(s)), SmartSource may offer to the Customer, in SmartSource’s sole discretion, certain data security product offerings (the “Security Products,” and each, a “Security Product”) for an additional fee. If Customer orders a Security Product, SmartSource shall (i) grant to Customer a non-assignable, non-exclusive, non-transferable right to access and use the Security Product in connection with Customer’s use of any other SaaS Solution(s) and/or the Equipment and (ii) provide such other Services as are set forth on the applicable SOW entered into between SmartSource and Customer for such Security Product. Notwithstanding the foregoing, any use of the Security Products by Customer, and any provision of Services by SmartSource in connection with such Security Products, shall be subject to the terms of the Agreement, including but not limited to, the limitations and disclaimers set forth in Paragraphs 4, 20, and 21 herein.
INTERNET ACCESS/SECURITY: Customer must obtain its own wireless network or Internet access in order to properly use the SaaS Solution(s). Customer must obtain and maintain its own account with a video-streaming platform in order to stream its events over the Internet. Customer agrees to follow any general policies concerning the SaaS Solution(s) that are required of all other customers of such SaaS Solution(s). Customer is responsible for maintaining the security of its SaaS Solution(s) account, including its user name and password. SmartSource may use technology protection measures designed to prevent unlicensed or unauthorized use of the SaaS Solution(s), including, mandatory deactivation or reactivation of software or equipment and remote access capabilities. SMARTSOURCE shall not be liable for, and CUSTOMER assumes any risk associated WITH, THE USE OF THE INTERNET, ANY THIRD-PARTY VIDEO STREAMING PLATFORMS, AND ANY HARDWARE USED TO ACCESS THE SAAS SOLUTION(S) OWNED BY, CONTROLLED BY, OR IN THE POSSESSION OF CUSTOMER OR ANY THIRD-PARTY (INCLUDING ANY EQUIPMENT IN THE POSSESSION OF CUSTOMER), and CUSTOMER releases and holds SMARTSOURCE harmless from any breach of security, exposure to computer viruses, interception, distortion, or loss of communications, or failure of any functions, features, or content on any website, software, AND/OR HARDWARE AS A RESULT OF, ARISING FROM, OR IN CONNECTION WITH THE USE OF THE INTERNET, ANY THIRD-PARTY VIDEO STREAMING PLATFORM, AND ANY HARDWARE OWNED BY, CONTROLLED BY, OR IN THE POSSESSION OF CUSTOMER OR ANY THIRD-PARTY (INCLUDING ANY EQUIPMENT IN THE POSSESSION OF CUSTOMER).
DATA USE: Except with respect to any personal information, SmartSource may use the anonymized and aggregated data (the “Collected Data”) it collects through Customer’s use of the SaaS Solution(s). Accordingly, by using the SaaS Solution(s), customer grants to SmartSource a perpetual, unlimited, royalty-free, worldwide, non-exclusive, irrevocable, transferable license to run, copy, adapt, publish, sell, reproduce, bundle, create derivative works of, translate, transmit, arrange, modify, export, merge or otherwise use such Collected Data for any purpose. To the extent SmartSource receives any personal information, such personal information is stored and/or processed with SmartSource’s third-party service provider and is provided to SmartSource by Customer at Customer’s sole risk. SMARTSOURCE IS NOT LIABLE FOR, AND CUSTOMER HEREBY RELEASES AND HOLDS SMARTSOURCE HARMLESS FROM, ANY DATA OR OTHER SECURITY BREACH ARISING FROM SUCH THIRD-PARTY SERVICE PROVIDER.
UPDATES: SmartSource may, from time to time, revise or update the SaaS Solution(s) and/or related materials and, in so doing, incurs no obligation to furnish such revisions or updates to Customer.
DELIVERY OF EQUIPMENT AND RISK OF LOSS: Customer assumes all risk of loss or damage to the Equipment from the time of delivery of the Equipment by SmartSource or a designated SmartSource agent to Customer until the Equipment has been returned to SmartSource’s designated location. The method and route of delivery of the Equipment to Customer shall be at SmartSource’s discretion unless Customer shall specify otherwise and SmartSource shall agree, and Customer shall pay any additional expense related to the method or route of shipment specified by Customer. Upon delivery, Customer shall inspect the Equipment, and unless Customer advises SmartSource to the contrary in writing (via facsimile, email or a hard copy delivered in person) within four hours of the receipt of the Equipment, it shall be conclusively presumed that the Equipment was received in full, with no damaged or missing items, and in good operating condition.
RENTAL TERM: Customer shall rent the Equipment from SmartSource for the period(s) specified on the SOW. “Ship Date” indicates the date the Equipment shall ship from SmartSource’s designated location. “Return Date” indicates the date the Equipment must be delivered to SmartSource’s designated location. Return Dates and rental periods may only be extended with the written consent of SmartSource; provided, if the Equipment is not received by SmartSource by the Return Date, Customer shall be in breach of this Agreement and the rental period shall be deemed to have automatically renewed for successive rental periods equal to the initial rental period until the end of the rental period following the return of the Equipment. In no event may rental period(s) may not be shortened. In no event will the rental term exceed 12 months without prior written consent of SmartSource.
RETURN OF EQUIPMENT: Customer must advise SmartSource at least 10 business days prior to the Customer’s desire to return the Equipment setting out the proposed date of return. SmartSource shall arrange, at the Customer’s expense, the pickup and return of the Equipment to SmartSource’s designated location. Customer must set out to SmartSource the asset numbers of Equipment to be returned and arrange for adequate packaging material at its own expense for the return shipment. SmartSource must receive the Equipment by the Return Date indicated on the SOW. The Equipment is subject to inspection and acceptance or rejection after delivery to SmartSource’s designated location. Delivery of the Equipment to SmartSource’s designated location shall not act as a waiver of SmartSource’s inspection right or an acknowledgement that the Equipment was returned in compliance with Customer’s obligations. All non-consumable accessories provided with the Equipment, whether or not specified herein, shall be deemed part of the Equipment and shall be returned to SmartSource with the Equipment. Customer must return the Equipment to SmartSource in the same condition that it was in at the time it left SmartSource’s designated location. Upon inspection by SmartSource, Customer will be responsible for any repair and/or replacement costs for any loss or damage to the Equipment. Customer shall obtain a return receipt from SmartSource upon return of the Equipment and shall retain such receipt as proof of return of the Equipment.
REPAIR/REPLACEMENT COSTS: Unless Customer has selected the Damage Waiver Coverage (defined below), Customer shall reimburse SmartSource for the cost of repair or replacement of the Equipment in the event of any damage to or loss of the Equipment (other than any damage caused prior to delivery of the Equipment to Customer). SmartSource shall determine the repair or replacement costs based on the cost to repair or replace and incidental costs, taking into account any effect on the overall value of the Equipment. Customer shall pay such costs immediately upon demand, without regard to any recovery from Customer’s insurance carrier. Customer shall have no right or authority to repair or replace any of the Equipment. Rental charges will not be offset against replacement value.
PAYMENT TERMS: Customer shall pay to SmartSource the fees and other amounts specified in the SOW and shall pay all applicable federal, provincial, state or local taxes in connection with the rental or use of the Equipment, use of the SaaS Solution(s), or rendering of Services. To the extent union labor is required in order to carry out the SOW, Customer shall be responsible for all such charges. Unless otherwise indicated in the SOW, all amounts owed to SmartSource shall be paid within 10 days of demand thereof. In the event any payment is not made to SmartSource when due, Customer shall pay an administrative charge of 1.5% (minimum of $25 but not greater than $150) per month in addition to any payment due. Customer agrees to pay all bank and other charges resulting from a check of Customer being returned for insufficient or uncollectible funds. All payments shall be made to SmartSource at the address set forth in the SOW and in the currency set forth in the SOW, without deduction or setoff. If the Equipment is not received by SmartSource by the Return Date Customer shall be in breach of this Agreement, but for purposes of determining the amount owed by Customer, the rental period shall be deemed to have automatically renewed for successive rental periods equal to the initial rental period and rental charges will continue to accrue until the end of the rental period following the return of the Equipment. If the Equipment requires repair or replacement in accordance with this Agreement, rental charges will continue to accrue until the Equipment has been repaired or replaced and all costs therefor have been paid.
FORCE MAJEURE: SmartSource shall not be liable for any loss or damage resulting from any delay or failure to perform due to any act of God, act of Customer, governmental act (including but not limited to travel bans or other restrictions), regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, act of terrorism, delay in transportation, delays of common carriers, medical epidemic or pandemic, inability to obtain necessary labor or materials or any other delay outside of SmartSource’s control. In the event of any such delay which causes a delay in SmartSource’s performance under this Agreement, SmartSource’s time for performance shall be extended for a period equal to the time lost because of such delay.
CANCELLATION: Unless otherwise indicated on the SOW as non-cancellable, written notice of cancellation at least 15 days prior to the Date incurs a charge of costs. Written notice of cancellation between 15 days and 6 days of the Date incurs a charge the greater of 50% of the proposed estimate of costs and written notice of cancellation within 5 days of the Date incurs a charge of 100% of the proposed estimate. Non-exclusive examples of “costs” are non-refundable airfare, deposits, freight, subrentals and labor not recouped. Costs represent liquidated damages and not a penalty. “Proposed estimate” is the most recent version of Customer quote. “Date” is the scheduled delivery date of Equipment and/or SaaS Subscription(s) of the initial term. “Days” are business days.
LOCATION; TRAVEL: Customer agrees not to remove the Equipment from the location specified on the SOW without SmartSource’s prior written consent or as necessary to return the Equipment to SmartSource. SmartSource shall have the right to inspect the Equipment at any location at any time. In the event that SmartSource technical staff are required to travel in connection with the Services, SmartSource and such staff will adhere to any local health and safety ordinances and/or travel bans per applicable law and SmartSource’s standard policies and procedures. Travel restrictions may impact the ability for specific staff to travel, and SmartSource shall not be liable for any delays or other losses arising from its staff’s inability to travel as a result of any such travel restrictions.
LABOR POLICIES: Labor charges are estimates only and actual time will be presented and charged within 48 hours after the conclusion of the applicable event. Labor rates are based on a 10-hour day and rounded to the nearest half hour. After 10 consecutive hours, not including meals, labor rates are billed at time plus half. Labor required between the hours of 10:00 PM and 6:00 AM local time is billed at double time. All technical labor calls are billed in four-hour minimums. For venues where union work rules apply, different rates and work rules may be used.
INSURANCE: Unless Customer has selected the Damage Waiver Coverage, Customer shall fully insure the Equipment for full replacement value against all losses including fire, casualty, liability, theft and other risks in the standard form of “all-risk” insurance. Upon SmartSource’s request, Customer shall have SmartSource named as an additional insured and loss payee on all insurance covering the Equipment.
Damage Waiver and Loss Coverage: SmartSource may offer to Customer, in SmartSource’s sole and absolute discretion, SmartSource’s damage waiver and loss coverage (“Damage Waiver Coverage”). If Customer accepts the Damage Waiver Coverage, Customer shall pay to SmartSource the Damage Waiver Coverage charge specified in the SOW. The Damage Waiver Coverage waives the repair or replacement charges otherwise owed by Customer to SmartSource for incidental losses and damages to the Equipment. Misuse, intentional damage, theft, vandalism, lost or missing Equipment, damages resulting from or arising out of improperly packed Equipment during return shipment, and gross damages rendering Equipment not reasonably repairable are not covered by the Damage Waiver Coverage, and Customer shall be liable for all damages and losses to such Equipment. The Damage Waiver Coverage is subject to a deductible of (a) $250 for all laptops, printers, and monitors and (b) $1,000 for all kiosks, LED displays, Touch Screen Displays, and LED Panels. To make a claim under the Damage Waiver Coverage, Customer shall (y) provide SmartSource with written notice of the damage to the Equipment, including a description of the circumstances resulting in such damage and (z) return such damaged Equipment to SmartSource; provided, however, that damaged Equipment valued less than $100 (such value to be determined in SmartSource’s sole and absolute discretion) does not need to be returned to SmartSource. Within a commercially reasonable time following receipt of such written notice and the damaged Equipment (if applicable), SmartSource shall either (i) send Customer replacement Equipment, as well as an invoice for any deductible (if applicable) or (ii) if, in SmartSource’s sole and absolute discretion, the damaged Equipment is not covered by the Damage Waiver Coverage, send Customer an invoice for the cost of the repair or replacement of such damaged Equipment in accordance with Paragraph 10 hereof.
TITLE; RELATIONSHIP: Customer acknowledges that (i) title to and ownership of the SaaS Solution(s) and related materials shall at all times remain with SmartSource or its licensors, and Customer’s right to use the same is at all times subject to the terms and condition of this Agreement, and (ii) the Equipment is owned by SmartSource and that Customer shall have no ownership interest in the Equipment at any time including during the rental period despite Customer having physical possession of the Equipment. Customer shall not sell, pledge, mortgage, assign, sublease or otherwise transfer the Equipment to any party under any circumstances. SmartSource reserves the right to file any financing statement it deems appropriate to reflect its ownership of the Equipment. Customer is not the agent of SmartSource and shall not represent itself as such under any circumstance. The relationship of the parties shall be that of independent contractors and not as agent/principal, partners or joint venturers.
LIMITED WARRANTIES; EQUIPMENT RENTED AS-IS: SmartSource warrants to Customer (and no other party) that the SaaS Solution(s) are free from material defects under normal use for a period of ninety (90) days from the date of delivery to Customer. However, SmartSource does not warrant that the functions contained in the SaaS Solution(s) will meet Customer’s requirements or that the operation of the SaaS Solution(s) will be uninterrupted or error free. THE SAAS SOLUTIONS(S) AND RELATED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAAS SOLUTION(S) IS WITH CUSTOMER. SHOULD THE SAAS SOLUTION(S) PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. Customer acknowledges that SmartSource is neither the manufacturer nor an agent of the manufacturer of the Equipment, and that SmartSource makes no warranty, express or implied, of any kind with respect to the Equipment. including but not limited to any express or implied warranty of merchantability, fitness for a particular purpose, design, condition, quality, capacity or workmanship. Customer rents the Equipment as-is and with all faults. Customer agrees to look solely to the manufacturer of the Equipment for any claim arising from any defect, breach of manufacturer’s warranty (if any) or inability to use the Equipment for any reason.
LIMITED LIABILITY: SmartSource’s entire liability and Customer’s exclusive remedy against SmartSource with respect to the SaaS Solution(s) shall be: (1) the replacement of any SaaS Solution(s) not meeting SmartSource’s “Limited Warranty” provided herein, provided that Customer promptly notifies SmartSource in writing, or (2) if SmartSource is unable to replace or modify or update the SaaS Solution(s) after proper notification, Customer may terminate this Agreement and Customer’s money will be refunded. SmartSource shall not be liable to Customer for any loss, cost or damage whatsoever, including but not limited to any loss, cost or damage relating to any malfunction or inoperability of the Equipment, Customer’s failure to properly operate the Equipment or any damage or claims related to the Services. SmartSource shall not be liable for incidental, consequential or special damages, INCLUDING but not limited to ANY LOST PROFITS, LOST SAVINGS, OR LOST INTERESTS, in any way relating to the Equipment, the SaaS Solution(s), the Services, the SOW or this Agreement, EVEN IF SMARTSOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer’s sole remedy in the event any of the Equipment is delivered in a damaged or inoperable condition shall be, in SmartSource’s sole discretion, a repair or comparable replacement of the Equipment or a credit for the particular damaged or inoperable item of Equipment; provided, any such remedy shall only be available to Customer if Customer’s notifies SmartSource of the same within 2 hours of delivery.
INDEMNIFICATION/DISCLAIMER: Customer shall indemnify, defend and hold harmless SmartSource, its owners, officers, directors, agents, employees, contractors, representatives, successors and assigns from and against any and all actions, claims, demands, suits, liabilities, obligations, judgments, settlements, loss, cost and expenses, including attorney’s fees and legal expenses, attributable to (a) any property damage or personal injury, including death, arising out of or in connection with the use or operation of the Equipment or the Services, (b) Customer’s unauthorized use, duplication, reproduction or publication of copyrighted materials included within the Equipment, and (c) any breach of this Agreement by Customer.
TERMS GOVERNING USE OF CREDIT CARD: Customer’s signature on the SOW constitutes Customer’s certification that the credit card reflected on the SOW is valid, that Customer is authorized to use this credit card, and that SmartSource is authorized to charge such credit card for all rental charges, fees and other amounts contemplated by this Agreement. A 3% surcharge will be added to the total pre-tax amount for all amount paid by Customer by credit card.
DEFAULT: SmartSource reserves the right to withhold any and all deliveries or Services in the event Customer fails to pay any amounts when due under the SOW or this Agreement or if SmartSource has reason to believe Customer does not intend or may not have the financial ability to pay any amounts when due. In the event that Customer fails to comply with any of the provisions of this Agreement, including but not limited to making timely payments of all amounts due to SmartSource, or in the event Customer becomes insolvent or makes an assignment for the benefit of creditors, or if any bankruptcy, reorganization, arrangement or liquidation proceedings under and insolvency laws or any other law for the relief of debtors is instituted, or if the Equipment is levied upon or otherwise taken from any site where the Equipment is located, then (a) Customer shall be deemed to be in default hereunder, and SmartSource, at its option, may declare this Agreement or any rights of Customer to be terminated, (b) SmartSource or its agents may repossess and remove the Equipment and (c) SmartSource may pursue any other remedy it may have against Customer including the payment of all amounts due, past due or to become due until the end of the term as set out in the SOW and all reasonable legal fees incurred by SmartSource in exercising its rights under the agreement. Upon any such termination, Customer shall immediately cease use of the SaaS Solution(s) and the related materials together with all copies and modifications in any form. If any of the Equipment is levied upon or removed from the site where the Equipment is located, Customer shall pay SmartSource the fair market value (as determined in SmartSource’s sole discretion) of such Equipment upon demand.
GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL; LIMITATION PERIOD: This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without regard to its conflicts of laws principles. All disputes or actions arising out of or from this Agreement shall be litigated exclusively in courts having situs within the City of Toronto. The parties consent to the jurisdiction of any court located within the City of Toronto and irrevocably waive any right to change venue of any such action or object to said jurisdiction. No action other than an action for unpaid payments under this agreement may be brought by either party more than two years after the cause of action has accrued. THE PARTIES HERETO HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, OR REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
GENERAL: Except as expressly set forth herein, any waiver by any party of its rights under this Agreement shall be in writing and signed by the party waiving such right. The failure of either party to enforce any of the provisions of this Agreement or any rights in respect thereto shall not waive such provisions, rights or subsequent breaches thereof. No course of dealing shall be deemed to constitute a continuing waiver of any breach or default or right or remedy hereunder. In the event any provision of this Agreement is ruled invalid, illegal or unenforceable by a court of competent jurisdiction, the court rendering such provision invalid, illegal or enforceable shall revise and interpret such provision to the maximum extent possible so that such provision is valid, legal and enforceable, without invalidating any other provision of this Agreement. This Agreement constitutes the entire agreement and understanding between the parties and may not be altered, modified or amended except in writing as signed by an authorized SmartSource official. In the event Customer tenders a purchase order or other agreement that purports to contain terms beyond or different than those set forth in this Agreement, such purchase order or other agreement is hereby rejected and revoked by SmartSource and shall have be of no force or effect with regard to the subject matter of this Agreement. This Agreement can be executed utilizing electronic signatures and when so signed, it shall have the same effect as though the document were executed using original signatures.
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