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Rental Conditions

Applicable for B2B rentals

 


          1. The Parties

1.1. The company INDUSTRIAL ACCESS S.A. (Joint-stock company), having its registered office on Nerva Traian Street no. 3, City Business Center, Block M101, 3rd Floor, District no. 3, Bucharest, Romania, postal code 031041, registered with the Trade Register Office under the no. J40/4133/2005, CUI/CIF (Fiscal Registration Code) RO 17310790, subscribed and paid-up share capital of 15.170.400 lei, hereinafter called the Lessor,

And

1.2. The company - client, hereinafter called the Lessee.

          2. General conditions. Scope of Work

2.1. This Agreement will be applicable to all offers and rental orders for aerial work platforms, for industry and construction machinery and equipment, with or without an operator, which will concluded between the Parties.

2.2. The specific rental terms will be agreed by the Parties through subsequent orders issued by the Lessee and accepted by the Lessor in writing within two working days from receiving them. In the absence of a written acceptance from the Lessor, the order will be considered as rejected.

2.3. Unless it has been agreed differently, all rental offers issued by the Lessor are non-binding, revisable and revocable at any time. An offer or rental order will become binding for the Lessor upon its written notification of acceptance by the Lessor.

2.4. The orders will be signed by the legal or conventional representatives of the Lessee, designated as Responsible Persons by the Agreement, the Orders or by separate power of attorneys, communicated by the Lessee, including via email. In cases whereby the designated Responsible Person is changed, the Lessee will immediately notify the Lessor by providing a power of attorney for the new Representative. In the absence of this power of attorney, it shall presumed in the favour of the Lessor that the person signing the delivery, return, observation or repair documentation for the Equipment fully and legally represents the Lessee, in its quality of apparent attorney-in-fact, its signature being binding for and enforceable against the Lessee.

2.5. By receiving and/or using the Equipment, the Lessee agrees with the rental terms provided by this Agreement and by Orders, regardless of the person who has signed of the documents on behalf of the Lessee.

2.6. The Lessor will transfer to the Lessee a right of temporary, limited and revocable usage of the rented Equipment.

2.7. The Accessories or consumables of the Equipment will be rented, or where appropriate, will be purchased separately.

2.8. Unless it has been agreed differently in orders, the Lessee will provide, at its own expense, the fuel required to operate the Equipment, of the appropriate type and quality, as well as the specific consumables (i.e.: needle files, chisels, discs, grease etc. ).

2.9. The Lessee will choose the Equipment model, according to own criteria, and being solely responsible for matching the Equipment with the purpose in mind.

2.10. The transport of the Equipment, to and from the Location, will be done by the Lessor, for a transport fee agreed in the Orders. The Parties can agree the transport of the Equipment to be done by the Lessee with its transport vehicles, legally authorized and with valid and comprehensive CMR insurances. The additional transports, requested by the Lessee and/or necessary for the replacement or the relocation of the Equipment, without the Lessor’s fault, shall be taxed supplementary.

2.11. At the Lessee’s request, the Parties can agree in the Orders the terms and conditions for the supply by the Lessor of services subordinated to the rental of the Equipment, like assembling/commissioning, dismantling/decommissioning of the Equipment, etc.

            3. The Duration of the Contract. The Rental Period

3.1. This Agreement is concluded for an indefinite duration and can be unilaterally terminated by any of the Parties through a written notification communicated via email within 5 (five) days prior to the date of the termination of the Agreement.

3.2. In the case of orders for which a Minimum Rental Period has been agreed, the unilateral termination of the Agreement by the Lessee will enter into force at the expiration date of the furthest expiration date of the Minimum Rental Periods agreed in the Orders.

3.3. At the end of the initially agreed Rental Period, the rental of an Equipment will be extended automatically for successive Rental Periods of one week, except for the case where: (i) any of the Parties requires the return of the Equipment 3 (three) days prior the expiration of the Rental Period or (ii) the termination or the suspension of the Agreement occurs.

          4. The Utilization Conditions of the rented Equipment

4.1. The Lessee will use the Equipment solely for the declared Activity, will respect with utmost diligence the work safety regulations and those regarding the prevention of accidents and of occupational diseases, as well as road traffic rules, especially those regarding loading, unloading and, if the case may be, transport of the Equipment, will pay the agreed rent and charges, will appropriately take care of the Equipment and will return it at the end of the Rental Period, clean, undamaged, and where appropriate fuelled at the same level as at delivery, in good functioning condition similar to the date of the delivery, excepting for the normal wear and tear resulted from its proper use.

4.2. Changes to the Location and/or to the Activity will only be allowed with the prior written consent of the Lessor.

4.3. In the event the Equipment is used for activities able to affect it or damage it in any way (painting, sandblasting, welding, in channels, shipyards or flooded areas, in saline environments, acidic, radioactive, corrosive, pollution affected – by any type and cause, with mud, dust, excessive moisture, etc.) or it is used for unspecific or not recommended applications (overloading, over-steering, shorting vibrations, grounding, flooding etc.), the Lessee undertakes to obtain the prior written agreement of the Lessor and to pay to the Lessor the equivalent sum for the remedy of damages.

4.4. The Lessee declares that it has the knowledge and, if the case may be, the professional training and the necessary legal authorisations for the proper, legal and safe use of the Equipment, and undertakes full and exclusive responsibility for the unlawful use, misuse or use without the necessary legal authorisations of the Equipment.

4.5. The sublease or the transmission of the right of use in any way to third parties can be made only with the prior written consent of the Lessor, after the Lessee and sub-Lessee will commit to jointly comply with all of the Lessee’s obligations under this Agreement.

4.6. The Lessee shall guard the Equipment from the moment when it enters into his possession until the moment when the Lessor repossess it. The Equipment will be deposited, parked or stationed exclusively in enclosed spaces, guarded and lightened overnight.

4.7. The Lessee shall immediately notify the Lessor if a third party invokes any kind of rights regarding the rented Equipment, including the cases of confiscation, seizure, etc.

4.8. The Lessee shall immediately notify the Lessor regarding any sort of accident and will wait for the Lessor’s instructions.

4.9. The Lessee shall allow the Lessor free, immediate and full access to the Equipment, wherever this may be located, upon the first request of the Lessor, guaranteeing that no interference exerted by the Lessee or by third parties will affect the Lessor’s operations on the verification, repair or repossession of the Equipment.

4.10. The Lessee will not have and cannot invoke any retention right/liens or any other similar exception regarding the possession of the Equipment, nor to constitute in favour of third parties or to allow third parties to constitute any rights or duties regarding the rented Equipment.

4.11. The Lessee hereby acknowledges and guarantees the Lessor that the Equipment shall not be used for Activities or for the benefit of individuals or entities of which it knows or could become aware, through reasonable means, that are suspected of having committed acts of tax evasion, money laundering, child labour, exploitation of vulnerable individuals or of persons without formal employment agreements, financing of terrorist activities or of other crimes or of having connections with states, territories or organisations for which interdictions or limitations to contracting are imposed by Romania, the European Union or other international organisations of which Romania is part.

4.12. The Lessor shall provide free technical assistance for technical defects resulting exclusively from manufacturing deficiencies, age or normal usage of the Equipment, which will be remedied by the Lessor, according to its choice, either by repairing the Equipment within one working day from notification, or by replacing it with an identical or similar one within two working days from notification. If the defective Equipment cannot be replaced, the rental shall automatically be terminated without further formalities the day following the receipt by the Lessor of the notification. The only compensation to the Lessee for these malfunctions will consist of not being charged for rent for a period of time necessary to carry out the repairs or the replacement of the Equipment, respectively the termination of the levying of the Rent starting with the next day after the receipt of the notification by the Lessor.

4.13. The notification of the defects of the Equipment will be made by the Lessee immediately, at the phone number 0746.911.003, at the email address: sesizari@industrialaccess.ro or through the Smartrent account, by indicating the Equipment’s serial number, of the circumstances when the defect has occurred and of the operation executed at that moment. The Lessee will immediately shut down the Equipment and will take conservation measures in order to ease the identification of the fault’s cause. Otherwise, the Lessee will be responsible for the aggravation of the defects, the extension of the damages or for the prejudices incurred by the goods and the individuals in the Location.

4.14. The repairs or any interventions on the Equipment will be made exclusively by the Lessor or by the personnel designated by the Lessor.

4.15. In the event the Equipment is being used for more than 10 (ten) hours a day, the Lessee shall communicate to the Lessor the value of the hour meter at the end of each week for the purpose of allowing to the Lessor to perform the periodical technical revisions in due time.

4.16. The Lessee will execute at its own expense all of the regular maintenance operations such as refuelling the Equipment, checking the fluids’ levels (depending on each case checking of engine oil, coolant liquid, brake system liquid, hydraulic system fluid, levels of electrolyte in batteries, etc.), greasing with lubricants of the wearing parts (i.e. bolted joints, wear pads etc.), verifying the security elements and the warning and information labels, regular cleaning of the Equipment.

4.17. The Lessee will use the Equipment in compliance with its ordinary use and within normal wear and tear limits, avoiding among others: (i) unusual usage (i.e. diesel engines with black tires used indoors; for not recommended or prohibited activities; in acid environments, radioactive, corrosive, affected by pollution by any form or cause, muddy, dusty or excessively damp, etc.), (ii) improper or illicit use (e.g.: directly connecting or incorrectly connecting to consumers; under unsuitable atmospheric conditions or soil related ones; ignoring the work chart; overloading beyond the maximum admitted load; oversteering; not using or using not recommended coolant, lubricants (oil), hydraulic oils, not recommended supports and/or protective equipment, not respecting the recommended pressure levels for systems or wheels; with unauthorised operators or inebriated or intoxicated personnel, etc.); (iii) negligent use (e.g.: without visually verifying the Equipment at the beginning and the end of the usage; overlooking defects or faults or continuing to use the Equipment after noticing the appearance of these errors; not covering or not protecting the surfaces against the risk of oil, fuel or other substances smears which could leak from the Equipment, etc.), etc.

          5. The Delivery of the Rented Equipment 

5.1. The Lessor will deliver the Equipment in a working state, having the fuel level and the accessories agreed upon in the Orders.

5.2. The Lessor will provide the Lessee with the documentation for the Equipment as a scanned copy which can be downloaded at any time from the platform https://industrialaccess.smartrent.ro and from the website www.smartrent.ro.

5.3. At delivery, the Lessor shall provide the Representative of the Lessee with a brief presentation of the emergency commands of the Equipment.

5.4. At delivery, the Lessee has the right to inspect the Rented Equipment at its own expense and to specify the state of the Equipment in a delivery report signed by both Parties.

5.5. Minor deficiencies which do not hinder the normal use of the Equipment will not be taken into consideration and will not entail any right for any reduction of the Rent.

          6. The Rent and the Payment Terms

6.1. The Rent is calculated for an average monthly use of maximum 10 (ten) hours/day, calculated between the first switch-on and the last switch-off of the Equipment during one day. For the additional use of the Equipment, the Rent will be proportionally increased, and the difference will be highlighted in invoices issued after the additional use has been observed.

6.2. The Rent is charged in full for the entire Rental Period, it includes the days of the delivery and the return of the Equipment and continues to be owed by the Lessee until the day when the Equipment is returned to the possession of the Lessor. The Rent will be due in full, even if, for reasons not imputable to the Lessor, the Equipment is not used by the Lessee or is returned by the Lessee before the expiration of the Minimum Rental Period agreed upon in Orders.

6.3. All prices and rates do not include VAT and are payable in LEI (RON), at the Romania’s National Bank exchange rate applicable for the date when the invoice is issued.

6.4. Before the Lessor issues the first invoice, the Lessee which is not fiscally registered in Romania is obliged to hand to the Lessor an exemption certificate or any other documents required by the fiscal authorities that can confer the tax exemption right in Romania, issued by the authorities from its registered office, valid for the entire Rental Period. Otherwise, the Lessee agrees for the Lessor to increase the amount of Rent and of all other invoiced amounts to the value of taxes that fall within the obligation of the Lessee, declared and paid to the Romanian fiscal authorities under the Romanian law.

6.5. The Lessor will issue the invoices [monthly, in the last working day of the month for the services supplied in that month] [OR] [in advance, for the entire Minimum Rental Period] [OR] [at the end of the Rental Period] [OR] [Fill in other agreed procedure], and the Lessee will pay the invoices [by upfront payment, in full] OR [([percentage]) % in advance and ([percentage]) % within [number] days as of the Delivery Date] OR [within [number] days as of the issuance of the invoice], {[by promissory note, without protest] OR [by CEC file], submitted to the Lessor until Delivery Date, respectively within 5(five) days as of the issuance of an invoice during the Rental Period} OR [by wire transfer].

6.6. The Parties agree that the Lessor will communicate the invoices to the Lessee by uploading them in the account of the Lessee on the Smartrent platform, secured with an username and a password, as well as via email, sent by the Lessor from the address [e-mail@e-mail.ro] to the Lessee’s e-mail addresses specified in the annexes to this Agreement. The messages confirming the receipt issued by the email servers of the Parties will constitute the proof of electronic invoice transmission. The invoices in respect to which the Lessee has not formulated any objections within 5 (five) days from their communication will be considered as accepted for payment. Upon the Lessee’s request, the Lessor will issue a hard copy invoice and will send it to the Lessee via courier against an additional charge.

6.7. The remedial of breaks, of malfunctions or damages to the Equipment, for any reasons not attributable to the Lessor, as well as the cleaning of the Equipment returned dirty (with grease, oils, paint, cement, primer or any other foreign material, etc.), will be charged according to the usual fees used by the authorised representatives of the Equipment’s manufacturer, which start from 35 Euro + VAT/technological hour, depending on the type of Equipment, plus, according to each case, travel fares starting from 0,4 Euro + VAT/km and 10 Euro/travel hour at an average speed of 50 km/h. The Lessee acknowledges that, for reasons of operational safety and validity of the warranty, the repairs will be made exclusively by the personnel authorised by the manufacturer and only by replacing the defective pieces with new ones, with an agreed origin by the manufacturer.

6.8. The Lessor has the right to charge a penalty interest of 0,5% per day of delay from the unpaid amounts due, calculated up until the full payment of the due amounts, as well as the sums resulting from the exchange rate variation between the date when the invoice has been issued and the date when it has been paid. The levying of the penalty interest and of the sums resulting from the exchange rate variation does not represent an obligation for the Lessor, but a right which the Lessor is free to exercise or not.

6.9. The allocation of payments can be made, at the discretion of the Lessor, in the following order: (i) debt collection charges and/or judicial expenses, (ii) penalty interests, (iii) main debit in order of maturity.

          7. Parties’ obligations in the case of rental with an operator

7.1. This article applies to the rental of Equipment with an operator and will be applied with priority over the other provisions of the Agreement.

7.2. Through the Orders for rental with an operator, the Parties will agree upon the rate for operating the Equipment (“The Operating Rate”) and upon the duration of the operating services (“The Operating Period”). The Operating Rate is calculated for an average monthly of maximum 9 (nine) hours/working day, from Monday to Saturday, with a lunch break included. For additionally performed services, the Operating Rate will increase accordingly.

7.3. The Lessee will provide the necessary technical documentation, issued by the specialised planner, will clear the Location of any loads or obstacles, will provide the Lessor and its operator with all of the information regarding the working conditions, and will ensure the proper management of the Location in order to enable the access and the placement of the operated Equipment, so that the Lessor’s operator would be able to conduct its activity within legal, normal and safe conditions.

7.4. The Lessee shall provide the Lessor with the documentation and information on safety and health at work and will ensure the training at the work place of the Lessor’s operator, in accordance with these norms. In turn, the Lessor’s operator will comply with all of the regulations in force at the Location, as they will be notified by the Lessee.

7.5. The representative of the Lessee will coordinate the activity at the Location and will give the necessary instructions for the adequate provision of services. The representative of the Lessee will not be able to request the execution of works that would breach the purpose and the technical characteristics of the operated Equipment and/or the professional training of the operating personnel.

7.6. The Lessee shall fill in and sign the daily worksheets of the Lessor’s operator, which will be corroborated by the electronical reports of the Equipment.

7.7. The Lessee’s responsibility will not be excluded if the operator performs a specific manoeuvre at the express request of the Lessee’s Representative or if the Activity for which the Equipment operating services have been contracted present inherent risks to cause prejudices to the Parties or to Third Parties.

          8. The return of the Equipment at the end of the rental

8.1. The delivery and/or the returning the Equipment will usually be done from Monday to Friday, between 8:00 a.m. and 5:00 p.m., based on a hand-over minute that will contain a description of the state of the Equipment and the observations of the Parties. The operations done outside this interval may be charged supplementary by the Lessor.

8.2. The Lessee will be lawfully in default with respect to the fulfilment of the obligation to return the Equipment at the end of the lease, without any notification or other prior formality.

8.3. If the Lessee failed to comply with any of its contractual obligations or if the Agreement has been terminated for any reason, the Lessor will be entitled to repossess and take control over the Equipment, to immobilise and/or to bring the Equipment in a non-functioning state, by own means, without following any judicial or extra-judicial procedure and without being hindered by the Lessee in any manner.

8.4. In the event the Equipment is not returned within 5 (five) days from the date of the termination of the rental, due to the termination by fault / unilateral denunciation of the Order/Agreement, the lost, the disappearance, the total damage of the Equipment, the refusal to return it or the Lessee’s failure to undertake the necessary actions to return it (e.g.: failure to obtain/issue the entry approval in the Location, the disconnecting from installations, the loading, etc.), the Lessee will immediately pay to the Lessor the Equipment’s replacement value (costs of acquisition, transportation and authorisation) and the equivalent to the lack of use thereof of the Equipment (double the Rent) calculated between the date of rental’s termination and the date of the payment Equipment’s replacement value.

          9. Termination of the Agreement. Parties’ liability

9.1. The termination of this Agreement shall occur through: a) the written consent of the Parties; b) the unilateral denunciation by any of the Parties, pursuant art. 3.1 and 3.2 of this Agreement; c) the termination by law, without notification of delay and without the court intervention or any other prior formality, in the event of a request registered in respect to the Lessee regarding its foreclosure, dissolution, winding-up, insolvency, bankruptcy, liquidation, reorganisation or payment default; d) the unilateral termination, based on a written notification, communicated by one of the Parties within 2 (two) working days before the date of termination, in the event that the other Party does not fulfil any of its contractual obligations and does not remedy the specific violation within 2 (two) working days from receiving notification of termination; e) in other cases stipulated by the law or by this Agreement.

9.2. The obligations regarding payments or the return of the Equipment will survive the termination of this Agreement until their full and proper performance. The payment obligations which are not yet due at the termination of this Agreement will automatically become due in advance on the day of the termination of the Agreement.

9.3. The Lessor’s contractual liability towards the Lessee shall be engaged only for the direct material damage, foreseeable at the conclusion of the Agreement, to a maximum threshold equal to the amounts received from the Lessee as Rent for that Equipment pursuant that Order, excluding any indirect, unforeseen damages, unrealised earnings, losses of profit etc. The Parties may agree an increased contractual liability limit, if the Lessee will pay in advance the increased costs of the insured amount as requested by the Lessor’s insurer. For avoidance of any doubt, the Parties acknowledge that the limitation of the liability shall not apply to intentional deeds or to impairments to the physical integrity, life and health of the Parties’ personnel.

9.4. As long as the Lessee fails to fulfil, in full and in due time, its own obligations, the performance of any of the Lessor’s obligations will be automatically and lawfully suspended, and any liability of the Lessor will be excluded.

          10. Final Clauses

10.1. All the communications between the Parties will be made, usually, through electronic means, at the e-mail addresses mentioned in this Agreement or subsequently communicated. The scanned documents sent from and to any e-mail address belonging to the Parties pursuant this Agreement have the effects of privately signed documents, opposable and binding for the Parties.

10.2. Any claims or amounts specified in invoices, account statements, price schedules and estimations are considered to be fully valid and enforceable against the Lessee, ascertaining uncontested debts, if the Lessee does not communicate its objections immediately among those present or within 5 (five) days of their receipt, among absentees.

10.3. The hand-over minutes, the orders, the findings or work sheets, the reparations estimations, the invoices, the photographic boards from the delivery and return of the Equipment, as well as the records and general reports generated by the IT systems used for their preparation and communication will be considered as Annexes to this Agreement and integral parts to it.

10.4. No failure or delay by any Party in exercising any of its rights under this Agreement shall operate or be interpreted as a waiver, or preclude the exercise of these rights in the future.

10.5. The partial nullity of a non-essential clause will not affect the validity of the entire Agreement, which will continue to produce the effects provided by the valid clauses.

10.6. As professionals, the Parties agree that the legal provisions regarding the unpredictability and the error on law shall not apply to this Agreement.

10.7. These contractual terms and all of the data and information resulted from the performance of the Agreement represent confidential information that may be disclosed to third parties by the Lessee only with the prior written consent of the Lessor. However, the information will not be considered confidential when: (i) it was public before the Agreement was entered into or it became public for reasons not imputable to the parties, (ii) it refers to the existence of outstanding payment obligations or (iii) is disclosed on the basis of a legal obligation, in accordance with an order of an authority. For failure to respect the confidentiality obligation, the Party in default shall pay damages to the other Party, within the limits provided in this Agreement.

10.8. The Lessee agrees that the Lessor is entitled to process and store the personal data of its representatives, during the contractual relationship and following its termination, during the existence of the Lessor, for the purpose of performing contractual, advertising and marketing and publicity activities (e.g.: the identification number, the address, e-mail, telephone, profession, work place, habits, preferences, behaviour, fiscal and judicial records, information about fraudulent activity, etc.). The Lessor may send this data to third parties, including, but not limited to financial institutions, public authorities, etc. The Lessee declares that it is aware of the provisions of Law no. 677/2001 regarding the access to data for intervention and opposition, which can be exercised by sending of a written request to the Locator at the correspondence address stated in this Agreement.

10.9. This Agreement is supplemented by the provisions of Romanian law. The dispute resolution shall be of the competence of the courts within the area of the Lessor’s registered office.

10.10. This Agreement removes any other prior verbal agreement between Parties, its modification being possible only through the written agreement of the Parties.

10.11. The Lessee declares to have read, understood, negotiated freely and consents to all of the rental conditions above mentioned and that it is able and competent to use the Equipment in a correct and safe manner in the cases of rentals without operator.

10.12. This Agreement has been agreed upon through correspondence, being signed by the legal or conventional representatives of the Parties, legally and fully authorised to sign it.

LOCATOR / LESSOR,

INDUSTRIAL ACCESS S.A.

_____________________

 Prin/By: A[Surname and Forename], [Title]

11. The Lessee expressly accepts the clauses referring to the tacit renewal of the Agreement (art.3.3), the suspension of the performance of the obligations  (art.8.3, 9.4), the limitation of liability (art.4.12, 7.7, 9.3), the limitation of the right to invoke exceptions and the forfeiture of the benefit of the grace periods (art.8.3, 9,1, 9.4, 10.2), the unilateral termination (art.3.1, 3.2, 9.1), the limitation of the right to contract with third parties (art.4.5) and the jurisdiction of courts (art.10.9).

LOCATAR / LESSEE, 

[Name of company] [S.R.L. / S.A.]  

_____________________

 Prin / By: [Surname and Forename], [Title]