GENERAL TERMS AND CONDITIONS OF SERVICE
Unless otherwise expressly stated in writing, the following Terms and Conditions of Service apply to all quotations or contracts, whether verbal or written, by or with Domson Engineering & Inspection Ltd. (the “Company”):
- Quotation: A quote is valid for only 90 days after the date of issue and is subject to approval of the Customer’s credit by the Company. A quote is accepted upon submission by the Company to the Customer of a written acceptance or by commencement of performance of services by the Company. Despite such acceptance and/or approval, if in the Company’s judgment the Customer’s financial condition does not at any time warrant the continuation of services the Company reserves the right to require payment in advance.
- Inspection Scope of Work: The Customer is responsible for specifying or approving the scope of work that it requires the Company to perform, including extent of inspection, procedures to be used, and acceptance criteria to be followed. Where the Customer does not fully specify or expressly approve certain elements of the scope of work and / or relies on the Company’s suggested methodology, whether expressed or implied, the Customer shall retain responsibility for approval of the entire scope of work. On request by the Customer, the Company agrees to provide its own procedures and /or other relevant information as may be immediately available to the Company without extra cost to assist the Customer in its approval process. For these purposes, the Company is entitled to rely on direction provided by the individual ordering the work or by an employee of the Customer who is a supervisor or of higher level of authority. If the Customer requests a change in the scope of work, the Company is entitled to revise the delivery schedule and make an equitable adjustment to the price to accommodate the change.
- Engineering Scope of Work: The scope of work for Engineering Services shall be as provided in a written proposal, quote or acknowledgement submitted to the Customer by the Company. The Customer is responsible for verifying and approving the scope of work prior to commencement. Provision of a purchase order or instructions to proceed (verbal or written) by the Customer is sufficient for this purpose. If the Customer requests a change in the scope of work, the Company is entitled to revise the delivery schedule and make an equitable adjustment to the price to accommodate the change.
- Responsibility of Customer:
a. The Customer shall make available in a timely manner at no charge to the Company all drawings, technical data, measurements, or other information and resources reasonably required by the Company for the performance of Engineering or Inspection services. The Customer will be responsible for and assumes the risk of any problems resulting from the content accuracy, completeness, and consistency of all such data, materials, and information supplied by the Customer.
b. The Customer remains responsible for the acceptance and use of all inspection information provided by the Company. This shall include any repairs, engineering, modification, or use decisions based on said information. Procedures for repair is the responsibility of the Customer unless the Company is contracted expressly in writing to provide engineered repair procedure(s) and the Company does provide the procedure(s) stamped by a professional engineer and collects a fee for it.
c. Unless the Customer has contracted with the Company to provide a dedicated Site Supervisor at the Customer’s cost, the Customer acknowledges that day-to-day direction of Company’s employees shall be provided by the Customer and/or the owner-operator.
d. The Customer shall review promptly all documentation submitted by the Company, and immediately inform the Company of any deficiencies found or of any decisions made in time for the orderly progress of services and of the project.
- Cancellation by Customer: A contract may be cancelled by Customer only upon written notice to the Company and payment of reasonable billings and expenses already incurred or committed to and upon compensation for any losses, damages or other costs that the Company may incur.
- Warranty: The Company warrants that its services shall be performed in accordance with good professional standards and practices and reflect normal and accepted practices currently recognized in the field of expertise relevant to the services. In the event of any breach of this warranty, the Company’s sole and exclusive obligation will be to correct or re-perform the deficient service or, at the Company’s option, to refund the amount paid for the deficient service. This warranty vests in the Customer and is not transferable to the Customers client or any other party. Warranty claims must be asserted within the lesser of fifteen (15) business days after receipt of the Company’s work product or five (5) business days after the purported deficiency was or could have been detected by Customer. Due to the nature of some Engineering Services, the Company cannot fully guarantee the success of Customer’s project where the feasibility of the project is uncertain. Where this is the case, the Company makes no warranty, whether expressed or implied, relating to the Engineering Services furnished under this agreement.
- Limitation of Liability: Despite any provision hereof, in no event shall the Company be liable for any consequential, secondary or incidental loss or damage to the business or the property of the Customer arising directly or indirectly from any breach hereof, fundamental or otherwise, or from any tortious acts or omissions of its employees or agents. In no event shall the liability of the Company exceed the fees paid by the Customer for the services.
- Indemnification by Customer: The Customer shall indemnify, protect and save the Company and its affiliates, and their directors, officers and employees, harmless from and against any and all actions and causes of action, claims, demands, liabilities, losses, damages, costs or expenses of whatever kind or nature, including costs of litigation and legal fees incurred in defending the foregoing and incurred in enforcing the Company’s indemnification rights hereunder, together with reasonable expenses in connection therewith, alleged or claimed to have been caused by, or to have arisen out of or in connection with, or to be incidental to any services performed by the Company except such damage or loss as may be caused directly by the breach by the Company of paragraph 6 hereof.
- Force Majeure: Despite any provision hereof, the Company shall not be responsible or liable for any loss, damage, detention or delay caused by war, invasion, insurrection, riot, the order of any civil or military authority, or by fire, flood, weather or other acts of the elements, breakdown, lock-outs, strikes or labour disputes, the failure of the Company’s suppliers to meet their contractual obligations, or, without limitation of the foregoing, any other cause beyond the reasonable control of the Company.
- Payment Terms: Payment is due 30 days after receipt by the Customer of the Company’s invoice for services. Interest on overdue accounts is 10% per annum. Payment for services or failure to identify any deficiencies in Company’s work product within fifteen (15) business days after receipt of the work product shall constitute acceptance by Client of Supplier’s work and agreement that Supplier met all applicable contractual requirements.
- Confidentiality: The Customer shall not disclose, use or derive any direct or indirect benefit from any confidential information, proprietary information or trade secrets of the Company (the “Information’). The Information includes, without limitation, techniques, procedures and methods used by the Company whether or not the Information is so identified.
- Intellectual Property: All drawings, plans, models, reports, photographs, processes, calculations, proposals, or other data (the Data) prepared by or on behalf of the Company are property of the Company and the Company reserves the copyright therein and in the work executed therefrom and they are not to be used on any other work without the prior written agreement and remuneration of the Company. The Customer is entitled to any finalized Data as is made available by the Company, but only in connection with the work or project at hand. Distribution or alteration of the Data or use of the Data in connection with any other project or work without the Company’s prior written consent is prohibited and the Company does not warrant the fitness of the Data for such other project or work and the Customer agrees to indemnify, hold harmless and defend the Company from and against all claims, demands, losses, damages, liability and costs associated with such use by the Customer or other party.
- Governing Law: All the terms and conditions hereof shall be governed by the laws of the province of Ontario and the laws of Canada applicable therein. This agreement shall be construed in accordance with the laws of the Province of Ontario (other than Ontario principles of conflicts of law) and the laws of Canada applicable in the Province of Ontario and shall be treated in all respects as an Ontario contract. All disputes arising out of or in connection with or in relation to this Agreement shall be submitted to the jurisdiction of the courts of the province of Ontario which shall have exclusive jurisdiction over any such dispute. Each of the parties irrevocably attorns to the jurisdiction of the courts of the Province of Ontario.
- Severability: If any term hereof is invalid or unenforceable under any statute regulation, ordinance, order or other rule of law, that term shall be deemed modified or deleted, but only to the extent necessary to comply with the statute, regulation, ordinance, order or rule, and the remaining provisions hereof shall remain in full force and effect.
- No Implied Waiver: The failure of the Company at any time to require performance by the Customer of any provision hereof shall in no way affect its right to require performance at any time thereafter, nor shall the waiver of the Company of a breach of any provision hereof constitute a waiver of any succeeding breach of the same or any other provision.
- Relationship of Parties: The Company and the Customer are independent contracting parties and nothing herein shall make either party the agent or legal representative of the other for any purpose whatsoever, nor shall it grant either party any authority to assume or to create any obligation on behalf of, or in the name of the other.
- Non-Assignment: The Customer may not assign or delegate its obligations hereunder.
- Entire Agreement: This agreement represents the entire and integrated agreement between the Customer and the Company and supersedes all prior negotiations, representations or agreements either written or oral. This agreement may be amended only by written instrument signed by both the Customer and the Company.