Hardware Rental Terms
Last updated: February 21st, 2025
Capitalized terms used but not otherwise defined in these Hardware Rental Terms have the meaning ascribed to them in the Operto Terms of Service located at https://operto.com/terms/. The following terms and conditions are applicable to Customers who contract with Operto to rent hardware products (“Rented Hardware”). If in conflict with any other part of the Agreement, this Schedule will control.
1. Shipments and Delivery. Operto will arrange for shipment of the Rented Hardware to Customer and Customer shall inform Operto of preferred shipping and delivery option. Customer will pay all shipping, customs, handling charges, and any relevant taxes unless otherwise agreed to in writing by the Parties.
2. Inspection and Rejection of Non-Conforming Rented Hardware.
Customer will inspect the Rented Hardware within [five (5)] days following receipt (the “Inspection Period”). Customer will be deemed to have accepted the Rented Hardware unless it notifies Operto in writing of any Non-Conforming Rented Hardware during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Operto. “Non-Conforming Rented Hardware” means only the following: (a) the Rented Hardware shipped is different than identified in the Order Form; (b) the Rented Hardware’s label or packing incorrectly identifies its contents; or (c) the Rented Hardware is defective or does not conform with the specifications for such Rented Hardware set forth in Schedule A (the “Specifications”). If Customer notifies Operto of any Non-Conforming Rented Hardware prior to expiry of the Inspection Period, Operto will, in its sole discretion (i) replace such Non-Conforming Rented Hardware with confirming Rented Hardware, or (ii) credit or refund the fees for such Non-Conforming Rented Hardware, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Notwithstanding the above, Customer shall be responsible for the costs of replacing any Rented Hardware that was damaged by Customer within the Inspection Period. Customer will ship, at its expense and risk of loss, the Non-Conforming Rented Hardware to Operto facility specific in writing by Operto. If Operto exercises its option to replace Non-Conforming Rented Hardware, Operto will, after receiving Customer’s shipment of Non-Conforming Rented Hardware, ship the replaced Rented Hardware to Customer, at Customer’s expense and risk of loss. Customer acknowledges and agrees that the remedies set forth in this Section 3 are Customer’s exclusive remedies for the delivery of Non-Conforming Rented Hardware.
3. Installation and Commissioning. Customer shall be responsible for installing and commissioning the Rented Hardware.
4. Title; Risk; Insurance; Liens. Operto is the owner of the Rented Hardware and, during the Rental Term, ownership of and exclusive title to the Rented Hardware shall remain at all times with Operto. Upon delivery of the Rented Hardware to Customer, Customer assumes responsibility for risk of loss or damage to the Rented Hardware, except in the event of loss or damage caused solely due to the acts or omission of Operto, and remains with Customer until the later of expiration or termination of this Agreement or the date the Rented Hardware is returned by Customer to Operto. Customer is solely responsible for insurance and protection of the Rented Hardware against all risks with reputable insurers to the Rented Hardware’s full replacement value and must have: (a) commercial general liability insurance coverage at the location where the Rented Hardware is installed or otherwise kept; and, (b) all-risk property insurance coverage for the Rented Hardware. Customer will not without the prior written consent of Operto permit any mortgage, security interest, hypothec, pledge, lien, attachment, charge, seizure, sequestration, distress, levy, encumbrance or any other rights of others (except for encumbrances created by Operto) on or with respect to the Rented Hardware, or cover or obscure any property notice and shall defend the Rented Hardware, at its own expense, from and against any and all legal proceedings and claims of creditors of Customer. In order to secure Customer’s performance under this Agreement, Operto may register in the applicable jurisdictions a security interest in the Rented Hardware in favour of Operto at any time during the Rental Term. Customer waives notice of any action by Operto and any right to receive a copy of any financing statements or similar statements.
5. Use. Conditional on Customer complying with the provisions of this Agreement, including paying fees owing as required by this Agreement, Operto grants to Customer the right to use the Rented Hardware for the Rental Term.
Unless otherwise agreed, Customer shall (a) only use, and shall ensure that all users of the Rented Hardware only use, the Rented Hardware for the purposes for which it was manufactured and in accordance with the documentation made available by Operto relating to the use, technical specifications and functionality of such Rented Hardware (the “Documentation”) and all applicable laws and safety regulations, (b) at its own cost, use, operate, transport and store the Rented Hardware in accordance with any operating or other instructions supplied with the Rented Hardware or by Operto from time to time and in a safe manner, exercising due care and skill by trained and qualified operating personnel only, and (c) not, without the prior written consent of Operto, install, or permit any third party to install, any additions, attachments, accessories, replacement items, parts or substitutions to or on the Rented Hardware.
6. Limited Product Warranty and Disclaimers.
(a) Operto warrants that, during the Rental Term, the Rented Hardware will substantially conform to the Specifications and be free of material defects in materials and workmanship when used in accordance with the Documentation (the “Limited Warranty”). In the event Operto determines that the Rented Hardware fails to conform with the Limited Warranty, Operto will, as Customer’s exclusive remedy and Operto’s exclusive liability: (i) repair or replace the non-conforming Rented Hardware or defective portion thereof; or (ii) if Operto determines that it cannot successfully repair or replace the non-conforming Rented Hardware or defective portion thereof, terminate this Agreement as it pertains to such non-conforming Rented Hardware and credit or refund any prepaid fees paid by Customer for such non-conforming Rented Hardware relating to the remainder of the Rental Term. Operto reserves the right to replace non-conforming Rented Hardware with Rented Hardware that has been previously used but conforms to the Limited Warranty. Upon making a Limited Warranty claim, Customer must promptly deliver the non-conforming Rented Hardware to the location designated by Operto, at Customer’s expense.
(b) The Limited Warranty shall not apply: (i) to any consumables provided by Operto for use as part of or in connection with the Rented Hardware, including batteries; (ii) if the Rented Hardware is not used, maintained, installed or stored in accordance with the Documentation; (iii) to any damage or defect caused by or resulting from Customer or a third party (other than an authorized agent of Operto) opening, disassembling, modifying or repairing the Rented Hardware; (iv) if the performance failure of the Rented Hardware is attributable in any way to the combination of the Rented Hardware with any another product(s) provided by Customer or any third party that have not been approved by Operto; (v) to cosmetic or other physical damage (including scratches) to the surface of the Rented Hardware; (vi) to any software other than the firmware installed in the Rented Hardware as provided by Operto; or (vii) if Customer does not provide notice in writing to Operto within the Rental Term specifying the breach of warranty in reasonable detail. Repairs or replacements for any of the foregoing issues may be provided by Operto at Customer’s expense.
(c) THE LIMITED WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS. EXCEPT FOR THE LIMITED WARRANTY, OPERTO MAKES NO OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE RENTED HARDWARE.
(d) Some jurisdictions limit or do not allow the disclaimer of implied or other conditions and warranties to the above disclaimer may not apply to Customer.
7. Transportation. Customer shall be solely responsible for any and all transportation costs (including the costs of any permits, license, customs duties, returns or similar costs) associated in any way with the transportation of the Rented Hardware during the Rental Term.
8. Maintenance and Repairs. Customer shall, at its sole risk and expense, maintain the Rented Hardware in good repair, condition and working order during the Rental Term.
9. Default and Remedies.
(a) Either Party shall be in default of its obligations under this Agreement if any of the following events or conditions (each “Event of Default”) shall occur: (i) if Customer fails to pay any undisputed Rental Fees when due and owing to Operto and fails to correct such failure within ten (10) days of receiving notice thereof from Operto, (ii) either Party fails to perform any of its other obligations under this Agreement and fails to correct such failure within 30 days of receiving notice thereof from the other Party, (iii) the dissolution, termination or discontinuance of a Party’s business or operations or the commencement of similar proceedings against a Party under applicable laws, and/or (iv) a Party becomes insolvent or takes advantage of any right or proposal under applicable bankruptcy and/or insolvency legislation.
(b) Upon the occurrence of an Event of Default, the Party that is not in default may, without demand or notice, exercise any one or more of the following remedies:(i) terminate this Agreement with immediate effect, and/or (ii) exercise any and all rights and remedies available to it pursuant to applicable laws.
(c) Without limiting the generality of the foregoing, in the Event of Default by Customer, Operto may at its sole option: (i) recover all undisputed amounts due under this Agreement and unpaid as of the date of such Event of Default; (ii) give Customer notice of such Event of Default and, without prejudice to any other available remedy at any time thereafter, have the option of immediately terminating this Agreement and Customer shall return the Rented Hardware to the Operto facility specified by Operto at its’ own expense; (iii) take possession of the Rented Hardware wherever it is located, without demand or notice and without a court order or other process of law in which case Customer agrees that it will not make nor cause to be made any claim for nor will Operto be liable for any damages that are caused as a result of its’ taking possession of the Rented Hardware and that the taking of such possession shall not prejudice Operto’ other rights under this Agreement or otherwise.
All rights and remedies provided herein are cumulative and are not intended to be exclusive and are in addition to any other right or remedy previously referred to or otherwise available to Operto at law or in equity, and any one or more of Operto’ rights and remedies may from time to time be exercised independently or in combination and without prejudice to any other right or remedy Operto may have or may have exercised.
(d) A termination of this Agreement shall not affect or prejudice any rights or obligations which have accrued or arisen under this Agreement prior to the time of termination and such rights and obligations shall survive the termination of this Agreement.
10. Rented Hardware Not for Resale or Export. Customer represents and warrants that Customer renting the Rented Hardware for Customer’s own use only and not for resale, export, or sublease.