WATER HEATER RENTAL AGREEMENT TERMS AND CONDITIONS
1. LivClean’s Service Commitment to You the Customer
LivClean Corp.’s (“LivClean”, “we” or “us”) commitment is to rent to the customer set out in the Customer Application (“you”, “your” or “customer”) a high quality, energy efficient water heater (the “water heater”), on the terms set out in the Customer Application and these terms and conditions (collectively, the “agreement”), for an indefinite term, unless earlier terminated by you or us.
2. LivClean’s Service Commitment includes:
• Water heater installation plus repairs, maintenance and/or replacement of the water heater with no installation or extra service charges, except in the following circumstances: if repairs or service work is necessary because the water heater was connected to other equipment in the premises; if repairs are necessary because of damage caused by you or a third party not authorized by us or use for which the water heater was not intended; if additional wiring, plumbing, venting or piping is required to meet Codes or installation requirements; if the water heater requires flushing, de-liming or other repairs because of water quality conditions, or the quality of the environment in which the water heater is situated; if you cancel an installation appointment within 24 hours of the scheduled appointment or fail to be present at the scheduled appointment (in such case you will be charged a $85 cancellation fee); if you terminate this rental agreement within 5 years from the date of installation, our standard installation charge of $400. Any additional installation charges will be set out upon installation and any additional service charges will be set out prior to the service being performed.
• An emergency phone number 7 days a week, 24 hours a day to handle dispatching of emergency service requirements.
• An option for you to terminate this agreement at any time or to purchase your water heater in either case by paying the applicable termination or purchase amount.
• A rental agreement transferable to the purchaser of your premises.We have the right to restrict provision of a rental water heater based on our program eligibility criteria.
3. Your Customer Commitment
We will honour our Service Commitment and, in return, you agree that:
• Your rental commences the date the water heater is installed or, if you purchased the premises after the water heater was installed, from the date of purchase.
• You will pay your rental charges and other charges when due, together with interest on any late payments at interest rates we or our billing service provider may set from time to time. You will pay when due, all taxes and other charges imposed by any governmental authority on or in connection with this agreement, the payments made under it or the water heater.
• Your initial monthly rental charge is that set out in your Customer Application. We may change our rental charges, interest rates, other charges or other terms of this agreement from time to time by announcing such changes to you in advance by written and/or electronic communication. If you do not accept such amended charges, rates or other terms you may terminate the agreement in accordance with the terms of this agreement.
• Your rental and other charges will be billed by us on a monthly basis or may be included on your utility bill (in which case your utility’s payment terms and billing cycle shall continue to apply). Your payment will be made by pre-authorized bank account or credit card. For such pre-authorized payment, you expressly authorize us to have your payments deducted from your bank account or to charge your credit card (a preauthorized payment or “PAP”) the amount of any charges due under this agreement. You will receive an initial bill prior to your initial payment setting out your monthly rental charges and other charges which will be deducted from your bank account or charged to your credit card each month on the date set out in the initial bill. You will only receive another bill if the monthly rental charge changes. You will pay us on demand interest on all amounts payable by you (including interest) and not paid when due, both before and after judgment, at a rate equal to 1.5% per month (or 19.6% per annum), compounded monthly. You will be charged $25 for any PAP that cannot be processed for any reason.
• You will not remove the water heater from the premises and will maintain a safe, dry, heated, unobstructed and accessible location for the water heater, free of any flammable, hazardous or combustible materials. You will ensure the water heater is located in an area with sufficient drainage in the vicinity and that the drainage is open and unrestricted.
• Except as specifically permitted herein, you will not permit anyone other than our authorized representatives to service, repair, move or disconnect the water heater.
• If you sell your premises, you agree to inform the purchaser that the water heater is rented pursuant to this agreement. We will allow the purchaser to assume your rights and obligations under this agreement, effective the date of sale, so long as (i) the purchaser is notified in the agreement of purchase and sale that the water heater is rented and subject to this agreement, (ii) you have notified us in advance of the purchaser’s name and the intended date of sale, (iii) the purchaser agrees in writing or by conduct to rent the water heater on our then current terms and conditions and (iv) you have paid us all other amounts owing under this agreement. You authorize us to respond to information requests relating to your account made by or on behalf of the purchaser.
• You agree that we are the owner of the water heater and that we are not transferring title to you. You will ensure that any of our identification or labeling is not removed from the water heater or covered in any manner. We may register, at your expense, our interest in the water heater against you and/or against title to the premises. To the extent permitted by law, you agree to waive any right to receive a copy of such registration and appoint us as your lawful attorney for the purpose of doing any such registrations. You agree that the water heater will remain personal property even though it may become affixed to the premises. You agree to keep the water heater free of all liens, security interests, mortgages and other claims.
• You are to be responsible for maintaining effective operation of any plumbing and pumping systems supplying water to the water heater during installation or servicing of the water heater.
• You will allow our authorized agents or employees to have access at all reasonable hours for the purposes of installing, servicing or removing the water heater.
• You agree to promptly inform us of any change: (i) of your mailing address (at least 30 days in advance of such change); and, (ii) in the bank account or credit card information provided to us (promptly after such change is made).
• You agree that we may sell, assign, concurrently lease or otherwise dispose of, or grant a security interest in, all or part of our right, title and interest in the water heater or this agreement to anyone else, without notice to you or your consent. To the extent not prohibited by law, you will not assert against any transferee any claims, defences, set-offs, deductions or counter-claims which you may now or in the future be entitled to assert against us. This agreement is binding upon and will enure to your respective heirs, personal representatives, successors and permitted assigns.
• If more than one customer is named on the front of your bill, you understand that each of you is individually liable, and all of you are collectively liable, for all obligations imposed on you by this agreement.
4. Termination of the Rental Agreement and Purchase Option
You may terminate this agreement and return your rental water heater to us at any time by providing us with 60 days prior written notice at our address as set out below. If you choose to terminate you may request us to disconnect and remove the water heater or, at your own risk, have your own qualified contractor disconnect and remove it and return it to us with the rating plate intact. If you breach any term of this agreement (including, without limitation, failure to provide us with 60 days written notice to terminate) we may (i) terminate this agreement and require you to immediately pay us an amount equal to the then depreciated value of the water heater, determined by us on a straight-line basis (assuming, for the purposes of such determination, that the water heater is valued on an installed basis, including sales, installation and financing related costs, without regard to the cost of removal, and has been maintained as required by this agreement), plus all other amounts owing under this agreement and (ii) enter the premises and remove the water heater. If you choose to terminate this agreement or if we terminate this agreement because you have breached any term of this agreement, you will pay us our standard removal charges as follows: (i) our account closure charge (currently $150), plus (ii) if we remove the water heater, our disconnect charge (currently $150) or, if the water heater is disconnected, removed and returned by your own qualified contractor, our water heater return charge (currently $100), plus (iii) penalties, if any, for unreasonable or excessive wear or use of the water heater, plus (iv) if the agreement is terminated within the first 5 years after the installation date, our standard installation charge of $400. You will pay such charges when billed by us. You will not have to pay us any rental charges after you have returned the water heater and have paid us all other amounts owing by you under this agreement. We may also terminate this agreement at any time upon 60 days notice. If we choose to use this right of termination, you may elect to either (i) request us to disconnect and remove the water heater or (ii) buy the water heater at the same price and on the same terms that would apply if you had exercised your purchase option. You must notify us in writing of your election no later than 30 days before the date we propose to terminate this agreement. Our standard disconnect and removal charges (described above) will not apply if the water heater is disconnected and removed under this right. You may purchase your rental water heater on an “as is, where is basis”, by providing us written notice not later than 60 days before the date you want to purchase the water heater. The price at which you may purchase the water heater will be equal to the depreciated value of the water heater as at the date you buy the water heater (as determined by us on a straight-line basis and assuming, for the purpose of such determination, that the water heater is valued on an installed basis, including any sales, installation and financing related charges, without regard to the cost of removal and has been maintained as required by this agreement) plus all other amounts owing under this agreement. If you exercise this option and pay all amounts owing under this agreement, title to the water heater will be transferred to you and this agreement will terminate.
5. Liability
We make no representations, warranties or conditions as to the performance of the water heater, except for those which are given by statute and which you cannot waive. We will not be liable for any loss, damage or injury of any type (including as a result of any water leakage or electrical or natural gas related events) arising out of or related to this agreement or caused or contributed to in any way by the use and operation of the water heater or any indirect, incidental, special or consequential damages, even if reasonably foreseeable. If we are unable to perform any of our obligations under this agreement because of circumstances or events beyond our control, we shall be excused from the performance of such obligations for the duration of such circumstances or events and we shall not be liable to you for such failure to perform. You will indemnify us from any loss or damage to the water heater for any reason (other than normal wear and tear) and all claims, losses and costs that we may suffer or pay or may be required to pay, including legal expenses, in connection with the water heater, this agreement or the use and operation of the water heater, including any claims against us for any injury or death to individuals or damage to property.
6. Privacy/ Personal Information
You acknowledge that we collect, record, use and disclose your credit, financial and related personal information for purposes related to our business and you consent to our disclosure or exchange information with credit bureaus, financial institutions, service providers, agents, affiliates and other third parties in connection with this agreement. You also consent our use of this information for the purposes of evaluating your creditworthiness, providing you with products and services under this agreement, verifying information you provide to us, establishing, servicing and collecting on your account, offering you other the products and services, and meeting legal, regulatory, audit, processing and security requirements. You understand that you can provide us with notice at any time to stop using your personal information. For more information about our privacy policy, please see www.livclean.ca.
7. Miscellaneous
You acknowledge that we may assign, pledge or transfer this agreement or the proceeds therefrom without your consent. Except as specifically provided for herein, you may not assign this agreement without our consent.
8. How to Contact Us
If you have any questions or concerns about this agreement or anything related to applicable privacy legislation, you may contact us at: (i) by phone: 866-755-9553, (ii) by facsimile 905-755-0545, (iii) by email: info@livclean.ca, or (iv) by mail: LivClean Corp., attention: Water Heater Customer Service, 10 Kingsbridge Garden Circle, Suite 800, Mississauga, Ontario, L5R 3K6.
9. Your Rights under the Consumer Protection Act, 2002
You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period. If the supplier does not make delivery within 30 days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance. If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commence-ment of performance. In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.
To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you. If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance). However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier. If the supplier requests in writing repossession of any goods that came into your possession under the agreement, you must return the goods to the supplier’s address, or allow one of the following persons to repossess the goods at your address: The supplier. A person designated in writing by the supplier. If you cancel this agreement, you must take reasonable care of any goods that came into your possession under the agreement until one of the following happens: the supplier repossesses the goods; the supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the agreement was cancelled; you return the goods; the supplier directs you in writing to destroy the goods and you do so in accordance with the supplier’s instructions.
David EllisExecutive Vice President and Chief Operating Officer
