(a) These terms and conditions for services (these “Terms“) govern the provision of services by RENOWN ELECTRIC MOTORS & REPAIR INC. (“Service Provider“) to each of its customers (“Customer“).
(b) The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, as well as any written and oral communications. In a discrepancy between these Terms and the Order Confirmation, these Terms govern, unless the Order Confirmation expressly states otherwise. For the greater clarity, these Terms prevail over any of Customer’s own terms and conditions.
2. Services. Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services“) in accordance with these Terms.
3. Performance Dates. Service Provider shall use reasonable commercial efforts to meet any performance dates stated in the Order Confirmation; however, any such dates are estimates only.
4. Customer’s Obligations. Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services;
(b) at Service Provider’s request, promptly provide any direction, information, approval, authorization, or decision that Service Provider may require to perform the Services;
5. Customer’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
(a) Any changes to the scope, cost, or the performance dates of the Services will be effective and binding on the parties, only when agreed upon in advance in writing in accordance with Section 21 (the “Change Order”). The Change Order will set forth any changes to the scope of Services and related changes in time and cost of the Services.
(b) Notwithstanding Section 6(a), Service Provider may, from time to time in its discretion, change the Services without the consent of Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
(c) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) Customer shall pay the fees set forth in the Order Confirmation within thirty (30) days from the date of Service Provider’s invoice and on the terms stipulated in the Order Confirmation.
(b) Customer shall reimburse Service Provider for the travel and other expenses incurred by Service Provider in connection with the performance of the Services.
(c) For any overdue and outstanding amount, Service Provider may:
- (i) charge interest on any such unpaid amount at a rate of twelve percent (12%) per annum, from the date such payment was due until the date paid; and
- (ii) suspend performance for all Services until payment has been made in full.
8. Taxes. Customer shall pay all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder.
9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services (collectively, the “Deliverables“) belong to Service Provider. Service Provider hereby grants Customer a licence to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
10. Confidential Information.
(a) All non-public, confidential, or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information“), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Service Provider. Confidential Information does not include information that is:
- (i) in the public domain;
- (ii) known to Customer at the time of disclosure; or
- (iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Customer may use the Confidential Information only to make use of the Services and Deliverables.
(c) Service Provider shall be entitled to injunctive relief for any violation of this Section 10.
11. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that the Services are performed using adequate resources as well as personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards.
(b) The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a), unless Customer:
- (i) gives written notice of the defective Services, reasonably described, to Service Provider within five (5) days from the time when Customer discovers or ought to have reasonably discovered that the Services were defective; and
- (ii) provides proof that no testing, repair, disassembly, modification, or alteration unauthorized by Service Provider was performed on the unit in respect of which the alleged defective Services were discovered while in Customer’s possession.
(c) Subject to Section 11(b), Service Provider shall, in its sole discretion, either:
- (i) repair or re-perform such Services (or the defective part); or
- (ii) credit or refund the price of such Services at the pro rata contract rate
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND SERVICE PROVIDER’S ENTIRE LIABILITY, FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OF TRADE OR OTHERWISE.
13. Limitation of Liability.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
14. Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of the terms of this Agreement; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Insurance. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2,000,000 as well as property damage in a sum no less than the value of the Customer property being serviced by Service Provider pursuant to this Agreement with financially sound and reputable insurers. Upon Service Provider’s request, Customer shall provide Service Provider with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Service Provider as an additional insured. Customer shall provide Service Provider with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Service Provider’s insurers and Service Provider.
16. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Force Majeure. The Service Provider shall not be liable to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic, lock-outs, strikes, or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
18. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule whether of the Province of Ontario or any other jurisdiction that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
22. Choice of Forum. Any legal suit, action, litigation or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. A final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be deemed effectively given (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier (with all fees pre-paid), signature required; (c) when sent, if by facsimile or email (with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail by the Canada Post Corporation, in each case, return receipt requested, postage prepaid.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Insurance, Choice of Forum/Arbitration, and Survival.
26. Amendments and Modifications. This Agreement may be amended or modified only in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.