STANDARD TERMS AND CONDITIONS, revised September 26, 2016
These terms and conditions form an integral part of the Techtric Engineering (referred to herein as "Techtric") Proposal. The portions of such Proposals relating to the proposed "Scope of Work", together with these terms and conditions, are collectively referred to as the "Agreement".
Article 1: General
1.1(a) The Agreement, when accepted in writing by the Customer and Techtric shall constitute the entire, complete and exclusive agreement between the parties relating to a service agreement ("Services") for the equipment and software identified in the List of Equipment or the Service Coverage Report attached to the Agreement ("Equipment") and shall supersede and cancel all prior agreements and understandings, written or oral, relating to the subject matter of the Agreement. The Agreement and any rights or obligations there under may not be assigned by either party without the advance written consent of the other, with the exception that Techtric may assign all or part of the Services to it’s related construction company known as Aris Building Technologies (“Aris”) at any time without notice to the Customer.
(b) The terms and conditions of this Agreement shall not be modified or rescinded except in writing, signed by a corporate officer of Techtric. Techtric's performance under this Agreement is expressly conditioned on Customer's assenting to all of the terms of this Agreement, notwithstanding any different or additional terms contained in any writing at any time submitted or to be submitted to Techtric by the Customer.
(c) The terms and conditions set forth herein shall supersede, govern and control any conflicting terms of the Proposal.
1.2 This Agreement shall automatically renew for successive one (1) year periods beginning on the anniversary date of the original term as set forth in the Proposal, unless stated otherwise in the Agreement.
1.3 Either party may terminate or amend this Agreement at the end of the initial term or at the end of a renewal term by giving the other party at least sixty (60) days prior written notice of such amendments or intent not to renew.
1.4 If, during or within 90 days after the term of this Agreement, Customer engages any Techtric employee who has performed work under this or any other agreement between Customer and Techtric, Customer shall pay Techtric an amount equal to the employee's latest annual salary.
1.5 This Agreement shall be governed by and enforced in accordance with the laws of the Province of Ontario.
1.6 The Services shall be performed on the Equipment during Techtric's normal working hours, Monday through Friday inclusive, excluding holidays, unless otherwise set forth herein.
1.7 Customer will at all times designate a contact person with authority to make decisions for Customer regarding the Services. Customer will provide Techtric with information sufficient to contact such person in an emergency. If such representative cannot be reached, any request for Service received from a person located at Customer's premises will be deemed authorized by Customer, and Techtric will, in its discretion, act accordingly.
1.8 Techtric will be permitted to control and/or operate all Equipment necessary to perform the Services and will be allowed to perform routine research and development on Customer equipment at the expense of Techtric.
1.9 Techtric will not be required to conduct safety or other tests, install new devices or equipment or make modifications to any Equipment beyond the Proposal set forth in this Agreement. Any Customer request to change the Proposal or the nature of the Services must be in the form of a mutually agreed change order, effective only when executed by all parties hereto.
1.10 If the Equipment is altered or moved by any person, including the Customer, other than Techtric or a person authorized by it, the Customer shall immediately notify Techtric in writing, and Techtric reserves the right to perform a reacceptance test on, or if necessary a recommissioning of, the system at Customer's expense.
1.11 After any of the following events, Techtric will have no liability or obligation under this Agreement, whether relating to the testing, inspection, maintenance or operation of any Equipment, and may terminate or suspend services under this Agreement immediately upon giving notice to Customer: Customer fails to (a) authorize a reacceptance test or recommissioning that Techtric deems necessary; (b) notify Techtric of any modifications or changes to the Equipment per Section 1.10; (c) notify Techtric of any conditions, malfunctions or changes per Section 6.2; or (d) provide the access required by Section 6.3.
1.12 Customer agrees that the Limitation of Civil Rights Act of the Province of Saskatchewan shall have no application to this Agreement or any other related document and further waives all rights and protection given by Section 49 of the Law of Property Act of the Province of Alberta, as such legislation may be amended or replaced from time to time.
1.13 Customer agrees that any carbon credits associated with this work will be the ownership of Techtric Engineering unless agreed otherwise in writing.
1.14 Customer agrees that Techtric’s obligations, liability and warranty under the Agreement are limited by the obligation of Techtric to design and control the Customers buildings in order to provide the minimum required temperature, air flow and other parameters that may be specified by the Ontario Building Code (“OBC”) or other applicable governing municipal, provincial or federal requirements. In the lack of such requirements, then the Techtric design shall be deemed to be accepted by the Customer. Any request by the client or his site staff to increase the temperature or other parameter above that specified by Techtric or the OBC shall constitute a waiver by the Customer of any performance guarantee offered by Techtric in the Agreement.
Article 2: Equipment Testing, Inspection and Maintenance
2.1 The Customer represents that all Equipment is in satisfactory working condition. Except as set forth below, by the later of the first forty-five (45) days of this Agreement, the first scheduled operational inspection, or the first seasonal start-up, Techtric will have inspected all the Equipment.
2.2 If Techtric determines as a result of such inspection that any Equipment is in need of repair or replacement, the Customer will be so notified and shall take corrective action within thirty (30) days, or such Equipment shall be automatically removed from coverage hereunder. Techtric will not be liable or responsible for the continued testing, maintenance, repair, replacement or operating capabilities of any portion of the Equipment until it has been restored to an acceptable initial condition at Customer's sole expense. Any services provided by Techtric in the course of such restoration will be separately charged, on a time and materials basis, and not included in fees paid hereunder. If individual items of Equipment cannot, in Techtric's sole determination, be properly repaired or replaced due to age, obsolescence, lack of availability of refrigerant gas, halon gas, necessary parts, materials, compatibility or otherwise, or as a result of excessive wear or deterioration, Techtric may, within ten (10) days of such inspection, give written notice that it is withdrawing such items from coverage under this Agreement and adjust the amounts to be paid hereunder accordingly.
2.3 If the Proposal provides for maintenance, any repairs and replacements of Equipment are limited to restoring the proper working condition of such Equipment. Techtric will not be obligated to provide replacement Equipment that represents significant capital improvement compared to the original. Exchanged components become the property of Techtric, except Hazardous Materials, which will under all circumstances remain the property and responsibility of Customer.
Article 3: Charges, Fees and Invoices
3.1 Payments to be made under this Agreement will provide for, and be in consideration of, only Services specifically included under the Proposal. All other Services, including but not limited to the following, shall be separately billed or surcharged on a time and materials basis: (a) emergency Services performed at Customer's request, if inspection does not reveal any deficiency covered by this Agreement; (b) Services performed other than during Techtric's normal working hours; and (c) Service performed on equipment not covered by this Agreement.
3.2 Invoices are due upon receipt or otherwise as may be set forth therein. If any payment is not received when due, Techtric may deem Customer to be in breach hereof and may enforce any remedies available to it hereunder or at law, including without limitation suspension or termination of Services and acceleration of payments. Any amount not paid within sixty (60) days of the date due shall accrue interest from the date due, until paid, at the rate of twenty-eight percent (28%) per annum. In the event of a dispute by Customer regarding any portion or all of an invoiced amount, the undisputed portion shall be paid when due, and interest on the disputed, unpaid portion shall accrue as aforesaid, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to Techtric.
3.3 Customer is responsible for paying any present or future sales, use, occupancy, goods and services, excise or other federal, provincial, or local tax due or owing as a result of this Agreement.
Article 4: Allocation of Risk
4.1(a) Until one year from either the date hereof or the date the Equipment is installed, whichever first occurs, all equipment manufactured by Techtric or bearing its nameplate will be free from defects in material and workmanship arising from normal use and service. Labor for all Services under this Agreement is warranted for 90 days after the work is performed.
4.2(a) The limited warranties set forth in Section 4.1 will be void as to, and shall not apply to, any Equipment (i) repaired, altered or improperly installed by any person other than Techtric or its authorized representative; (ii) subjected to unreasonable or improper use or storage, used beyond rated conditions, operated other than per Techtric's or the manufacturer's instructions, or otherwise subjected to improper maintenance, negligence or accident; (iii) damaged because of any use of the Equipment after Customer has, or should have, knowledge of any defect in the Equipment; or (iv) not manufactured, fabricated and assembled by Techtric or not bearing Techtric's nameplate. However, Techtric assigns to Customer, without recourse, any and all assignable warranties available from any manufacturer, supplier, or subcontractor of such Equipment.
(b) Any claim under the limited warranty granted above must be made in writing to Techtric within thirty (30) days after discovery of the claimed defect unless discovered directly by Techtric. Such limited warranty only extends to Customer and not to any subsequent owner of the Equipment. Customer's sole and exclusive remedy for any Equipment or Services not conforming with this limited warranty is limited to, at Techtric’s option, (i) repair or replacement of defective components of covered Equipment, or (ii) reperformance of the defective portion of the Services, or (ii) to the extent previously paid, the issuance of a credit or refund for the original purchase price of such defective component or potion of the Equipment or Services.
(c) Techtric shall not be required to repair or replace more than the component(s) of the Equipment actually found to be defective. Techtric's warranty liability shall not exceed the purchase price of such item. Repaired or replaced Equipment will be warranted hereunder only for the remaining portion of the original warranty period.
4.3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. Techtric MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL PREVENT ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING SIGNED BY A DULY AUTHORIZED CORPORATE OFFICER OF Techtric.
4.4 Techtric will indemnify Customer from and against losses, claims, expenses and damages (including reasonable legal fees and expenses on both a solicitor and client basis) for personal injury or physical damage to property, but not loss of use of the property resulting from such damage or from damage to any work performed hereunder. Such indemnification shall be solely to the extent caused by or arising directly from Techtric's or its employees', consultants' or agents' negligent acts or omissions or willful misconduct in connection with its performance of Services hereunder. Techtric's obligations under this indemnity provision shall not extend to claims, losses, expenses and damages arising out of or in any way attributable to the negligence of Customer or its agents, consultants or employees other than Techtric. Techtric's liability to Customer or any third party under this Section or otherwise under the Agreement is expressly limited to, and Techtric shall not be liable other than for the direct losses, claims, expenses and damages arising as aforesaid. Techtric shall in no event be responsible under this Agreement for incidental, consequential, punitive, exemplary or special damages, including without limitation lost profits and/or lost business opportunities, whether arising in warranty, late or non-delivery of any Equipment or Services, tort, contract or strict liability, and regardless of whether Techtric has been advised of the possibility of such damages. Techtric reserves the right to control the defense and settlement of any claim for which Techtric has an obligation to indemnify hereunder. The parties acknowledge that the price for which Techtric has agreed to perform its Services and obligations under this Agreement has been calculated based upon the foregoing limitations of liability, and that Techtric has expressly relied on, and would not have entered into this Agreement but for, such limitations of liability.
Article 5: Environmental
5.1 Except as disclosed pursuant to Section 5.3, Customer represents that there is no asbestos or any other hazardous or toxic materials, as defined in any applicable federal, provincial or local law, ordinance, rule, code or regulation relating to public health or safety or protection of the environment ("Hazardous Materials"), present at Customer's locations where Services are performed. Techtric will notify Customer immediately if it discovers or suspects the presence of any Hazardous Material. All Services have been priced and agreed to by Techtric in reliance on Customer's representations as set forth in this Section 5.1 The presence of Hazardous Materials constitutes a change in the Proposal equivalent to a change order whose terms must be agreed to by Techtric before its obligations hereunder will continue.
5.2 Customer shall be solely responsible for testing, abating, encapsulating, removing, remedying or neutralizing such Hazardous Materials, and for the costs thereof. Even if an appropriate change order has been entered into pursuant to Section 5.1 above, Techtric will continue to have the right to stop providing Services until the job site is free from Hazardous Materials. In such event, Techtric will receive an equitable extension of time to complete its Services, and compensation for delays caused by Hazardous Materials remediation.
5.3 Customer warrants that, prior to the execution of the Agreement, it has notified Techtric in writing of any and all Hazardous Materials present, potentially present or likely to become present at Customer's locations and has provided a copy of any jobsite safety policies, including but not limited to lock-out and tag procedures, laboratory procedures, chemical hygiene plan, material safety data sheets, and other items covered or required to be disclosed or maintained by federal, state, or local laws, regulations or ordinances.
5.4 Customer hereby indemnifies and holds harmless Techtric from and against any damages, losses, costs, liabilities or expenses arising from Customer's breach of, or failure to perform its obligations under, Sections 5.1, 5.2 or 5.3 above.
Article 6: Customer Responsibilities
6.1 Customer will operate and maintain all Equipment in accordance with applicable manufacturer's specifications, including those set forth in the manufacturer's operating manuals or instructions, as well as all requirements of applicable law or of authorities having jurisdiction. Such Equipment shall be operated only in the specified operating environment, which shall be supplied by Customer, including without limitation: (a) suitable electrical service, including clean, stable, properly conditioned power, to all Equipment; (b) telephone lines, capacity and connectivity as required by such Equipment; and (c) heat, light, air conditioning or other environmental controls, and other utilities in accordance with the specifications for the Equipment. Failure to so operate the Equipment will terminate immediately any maintenance obligations Techtric may have hereunder.
6.2 Customer will promptly notify Techtric of any unusual operating conditions, system malfunctions or building changes that may affect the Equipment or any Services.
6.3 Customer will provide Techtric with reasonable means of access to the Equipment and shall make any necessary provisions to reach the Equipment and peripheral devices. Customer will be solely responsible for any removal, replacement or refinishing of the building structure or finishes that may be required to gain access to such Equipment.
6.4 Customer shall properly dispose of all ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents, refrigerant and any other Hazardous Materials that at any time are present at Customer's premises, in accordance with all applicable federal, state, and local laws, regulations, and ordinances. At no time and under no circumstances will Techtric be responsible for any such removal or disposal and Customer hereby indemnifies and holds Techtric harmless from and against any liability or claim arising there from.
6.5 Customer will, if applicable, provide and pay for a dedicated voice grade dial-up phone line and install a terminal block in a mutually agreed upon location. All on-line service Equipment (not including the phone line) will remain the property of Techtric unless otherwise stated herein.
6.6 Customer will allow Techtric to provide scientific research, experimentation and development (SRED) on software or hardware installed by Techtric in order to increase the efficiency or performance or any other technical improvement that may be identified by Techtric. All costs of the SRED work including labor and materials shall be at the cost of Techtric. Techtric reserves the right to change equipment or add monitoring equipment at no cost to the Customer.
Article 7: Limitations of Maintenance or Service Obligations
7.1 Techtric will not be responsible for the maintenance, repair or replacement of, or Services necessitated by reason of: (a) non-maintainable, non-replaceable, or obsolete parts of the Equipment, including but not limited to ductwork, shell and tubes, heat exchangers, coils, unit cabinets, casings, refractory material, electrical wiring, water and pneumatic piping, structural supports, cooling tower fill, slats and basins, etc. unless otherwise specifically stated herein; or (b) negligence, abuse, misuse, improper or inadequate repairs or modifications, improper operation, lack of operator maintenance or skill, failure to comply with manufacturer's operating and environmental requirements, Acts of God, or other reasons beyond its control. Techtric assumes no responsibility for any service performed on any Equipment other than by Techtric or its agents.
7.2 Techtric shall not be responsible for loss, delay, injury or damage that may be caused by circumstances beyond its control, including but not restricted to acts or omissions by Customer or its employees or agents, Acts of God, war, civil commotion, acts of government, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, computer viruses, program or system hackers, strikes, lockouts, differences with workmen, riots, explosions, quarantine restrictions, delays in transportation, or shortage of vehicles, fuel, labor or materials.
7.3 Techtric is not responsible for repairs, replacements or services to Equipment due to corrosion, erosion, improper or inadequate water treatment by others, electrolytic action, chemical action or other reasons beyond its reasonable control.
7.4 Techtric shall not be responsible for the removal or reinstallation of replacement valves, dampers, waterflow and tamper switches, airflow stations, and any other permanently mounted integral pipe or air duct component. Additionally, Techtric shall not be responsible for any venting or draining of systems.