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General terms and conditions
GENERAL TERMS AND CONDITIONS
Lease Suretyship for a Dwelling
These General Lease Suretyship (GLS) Terms and Conditions apply exclusively to leases for dwellings. They govern the contractual relations between CAUTIONNEMENT LOCNEST INC. (hereinafter “LOCNEST” or the “Surety”), the tenant(s) and co-signer(s) (hereinafter the “Tenant”) and the lessor(s) (the “Lessor”) relative to the lease (the “Lease”) referred to in the Lease Suretyship Certificate appearing on the front of this document (the “Certificate”).
Article 1 Contract formation
The coming into force of this suretyship is subject to the issuing by LOCNEST of a Suretyship Certificate. The submission by the Tenant of a request for suretyship through LOCNEST’s website, the electronic acceptance by the Lessor of such a request and/or the payment of the suretyship premium required by LOCNEST is equivalent to an unequivocal acceptance of this GLS. No condition or term additional to those provided on the Certificate and this GLS may be considered binding on LOCNEST without its prior and express written consent.
Article 2 Subject of the suretyship and exclusions
1. LOCNEST agrees to guarantee the performance of all obligations of the Tenant to the Lessor pursuant to the Lease, within the extent and on the conditions set forth herein, up to the amount in principal, fees and interest specified in the Suretyship Certificate.
2. The obligations of LOCNEST are excluded or limited in the following cases:
a) In case of subletting, LOCNEST does not guarantee the performance of the obligations of the sub-tenant nor the obligations resulting from subletting;
b) If there are several Suretyship Certificates all referring to the same Lease, only the one most recently issued shall be valid;
c) This suretyship only guarantees the performance of the obligations of the Tenant between the starting date and the end date;
d) If LOCNEST pays an amount to the Lessor pursuant to the suretyship, the maximum amount of the suretyship shall be reduced by the amount paid.
Article 3 Suretyship certificate
Upon acceptance by the Lessor of the proposed lease suretyship and the receipt by the Surety of payment of the corresponding consideration, LOCNEST shall issue a Suretyship Certificate and send it electronically to the Lessor or its representative. A copy of the Certificate shall also be sent to the Tenant.
Article 4 Co-tenants
1. When the Lease agreement is entered into by several tenants and/or co-signers, those who have not consented to the suretyship shall be liable to the Surety for what they would have been bound to pay the Lessor, if there had been no suretyship, including damages to the greatest extent allowed by law.
2. In the exercise of its remedies, LOCNEST may take action again any of the Tenants and/or co-signers, it being understood that they are jointly responsible for all of the debts that could be owed by the Tenant to the extent they had consented to this Surety.
Article 5 Terms of the suretyship
The suretyship takes effect on the start date indicated on the Certificate, or on the date of commencement of the term of the Lease, whichever occurs last. The suretyship is in force for the same period as fixed in the Lease. For greater certainty, the suretyship will be renewed automatically from year to year, concurrently with the express or tacit renewal of the Lease. The surety will send a certificate to reflect this renewal each year.
The suretyship ends in one of the following cases:
(a) by consent of all parties concerned, on the date agreed by the parties to the contract, but at least ninety (90) days before renewal of the suretyship;
(b) where LOCNEST has paid to the Lessor claims under this suretyship up to the maximum amount stated in the Certificate, in accordance with Article 6 below;
(c) in case of assignment of the Lease by the Lessee;
(d) in the event of resiliation of the Lease by the Lessee or the Lessor;
(e) in the event of a change of use of the leased premises for commercial purposes.
In the event of a voluntary or forced alienation of the building containing the rented dwelling, this suretyship will benefit the new Lessor, provided that LOCNEST is notified in writing of the transfer of ownership within thirty (30) days of the alienation.
Article 6 Payment of the suretyship to the Lessor
1. LOCNEST agrees to pay the Lessor any amount owing pursuant to the Lease by the Tenant, within the limits and on the conditions provided herein, upon presentation by the Lessor of the Certificate and one of the following documents:
a) The consent of the Tenant or the Tenant’s representative to acknowledge the debt, indicating the amount claimed by the Lessor, notified by the Tenant and the Lessor electronically through the website of LOCNEST;
b) An enforceable judgment, not appealed, regarding the claims of the Lessor against the Tenant or any of the other Tenants, if there are several Tenants, in relation to the Lease.
2. Notwithstanding the foregoing, the Lessor is required to inform the Surety in writing of any fact or circumstance of a nature to entail the liability of the Surety pursuant to the suretyship within thirty (30) days of becoming aware of it, subject to forfeiture of is rights under this guarantee. If the Lessor demonstrates that it was impossible fir it to give such notice within this time period, LOCNEST shall grant the claim, provided that the information is sent to the Surety within the year of the occurrence of the facts or circumstances originating the claim.
Article 7 Right of recourse/subrogation
Should LOCNEST pay the Lessor an amount pursuant to this suretyship, LOCNEST is subrogated in the rights of the Lessor and is authorized to pursue remedies against the Tenant for the amount paid to the Lessor, in addition to damages for compensation for any losses that the Surety may have sustained as a result of the suretyship, including interest, at the rate of 12% per annum on any amount it may have had to pay the Lessor, until fully paid up.
Article 8 Consideration
1. In consideration for the undertakings of LOCNEST as Surety hereunder, the Tenant shall pay LOCNEST a premium equivalent to 8% of the suretyship maximum amount established in the Certificate, as well administrative fees of CAD $20.00, plus applicable taxes. This consideration shall be payable in its entirety, whatever the term of the Lease.
2. In case of refusal by LOCNEST of a suretyship request, or in case of cancellation by the Tenant of its suretyship request before its approval by the Lessor, LOCNEST undertakes to reimburse the entirety of the above-mentioned premium. LOCNEST reserves the right to refuse without justification any application for suretyship. Administrative fees are not reimbursable.
3. To renew the suretyship, the Tenant must pay LOCNEST, before the suretyship end date, a premium equivalent to 8% of the maximum amount of the suretyship, as indicated in the Certificate, plus applicable taxes; Any late payments shall bear interest at the rate of % per annum, calculated daily and compounded monthly. The Tenant shall also reimburse LOCNEST for all reasonable costs incurred in collecting any late payments, including legal fees.
4. For any change in the terms and conditions of the suretyship, accepted by LOCNEST after the issue of the Certificate, LOCNEST shall charge the Tenant administrative fees of CAD$ 20.00 plus applicable taxes.
Article 9 Obligations of the Tenant
1. If the Lessor enforces the suretyship, the Tenant undertakes to set up and oppose all the defences, objections and exceptions to contest the grounds, scope and merits of any and all claims raised by the Lessor in relation to the Lease agreement, and to assist the Surety in examining these claims.
2. If the Lease ends or if the Tenant leaves the rented dwelling, the Tenant is required to so inform the Surety as soon as possible but no later than within thirty (30) days.
3. The Tenant is required to inform LOCNEST without delay if the Lessor makes any claims against it pursuant to the Lease, whether during the Lease or afterwards.
Article 10 Disclaimer and limitation of liability
UNDER NO CIRCUMSTANCES SHALL LOCNEST BE HELD LIABLE, whether this liability is based on civil liability (contractual or extra-contractual), a guarantee, tort (including negligence) or otherwise allowed by law, for ACCESSORY, SPECIAL OR INDIRECT DAMAGES, including, without limiting the foregoing, the loss of profit or income, loss of enjoyment of property or of any related product, capital cost, the cost of replacement products, facilities or services, the cost of downtime, or claims by the Lessor, the Tenant or third parties for such damages.
Article 11 Final provisions
1. The Tenant consents to LOCNEST collecting, using and communicating his or her personal information, such as his or her name, address, date of birth, social insurance number, occupation, as well as other basic information allowing the determination of his or her solvency. LOCNEST may use this information to set consideration, manage credit risk, develop statistics, conduct marketing activities and for any other purposes required or authorized by law. Within the scope thereof, the Tenant’s personal information may be conveyed to the Lessor and to other organizations, including credit agencies and other service suppliers. LOCNEST handles the Tenant’s personal information strictly as required by law.
2. All communications or notifications from LOCNEST to the Tenant or to the Lessor relating to this suretyship agreement shall be validly sent electronically, including through the automated technological procedures in LOCNET’s website, to the address indicated on the Certificate or, failing that, to the last address provided in writing by the Tenant or by the Lessor or its representative.
3. LOCNEST reserves the right to amend this GLS at any time, by giving at least three (3) months’ notice.
4. Should any provision of this agreement become invalid, void or otherwise unenforceable for any reason whatsoever, such provision shall be automatically severed and no longer be part of this agreement, and the application and validity of other provisions hereof shall not be thereby affected.
Article 12 Applicable law and jurisdiction
This suretyship agreement shall be governed by the applicable laws of the province where the leased dwelling is located and Canada, without regard to conflict of laws principles. The Lessor, the Tenant and the Surety agree to subject any dispute related to this agreement to the jurisdiction of the following courts, as applicable, to the exclusion of any other jurisdiction:
– If the leased dwelling is located in Quebec, the courts of the district of Montreal;
– If the leased dwelling is located in Ontario, the courts of the district of Ottawa;
– If the leased dwelling is located in Alberta, the courts of the district of Calgary;
– If the leased dwelling is located in British Columbia, the courts of the district of Victoria.