Terms and Conditions
As part of retaining the Services of David Hine Engineering Inc., the following terms and conditions are applicable:
Terms and Conditions
General
The Consultant shall render the Services, as specified in the Scope of Services, to the Client for this Project in accordance with the following terms of engagement. The Consultant may, at its discretion and at any stage, engage sub-consultants to perform all or any part of the Services.
Compensation
Charges for the Services rendered will be made in accordance with the Consultant's Schedule of Fees and Disbursements in effect from time to time as the Services are rendered. The Consultant's current Schedule of Fees and Disbursements are included in the Consultant's Budget Estimate. All Charges will be payable in Canadian Dollars. Invoices will be due and payable by the Client within thirty (30) days of the date of the invoice without hold back.
Representatives
Each party shall designate a representative who is authorized to act on behalf of that party and receive notices under this Agreement.
Termination
Either party may terminate this engagement without cause upon thirty (30) days notice in writing. On termination by either party under this paragraph, the Client shall forthwith pay to the Consultant its Charges for the Services performed, including all expenses and other charges incurred by the Consultant for this Project.
If either party breaches this engagement, the non-defaulting party may terminate this engagement after seven (7) days notice to remedy the breach. On termination by the Consultant under this paragraph, the Client shall forthwith pay to the Consultant its Charges for the Services performed to the date of termination, including all fees and charges for this Project.
Professional Responsibility
In performing the Services, the Consultant will provide and exercise the standard of care, skill and diligence required by customarily accepted professional practices and procedures normally provided in the performance of the Services contemplated in this engagement at the time when and the location in which the Services were performed.
Limitation of Liability
The Consultant shall not be responsible for:
The failure of a contractor, retained by the Client, to perform the work required for the Project in accordance with the applicable contract documents;
The design of or defects in equipment supplied or provided by the Client for incorporation into the Project;
Any Project decisions made by the Client if the decisions were made without the advice of the Consultant or contrary to or inconsistent with the Consultant's advice;
Any consequential loss, injury or damages suffered by the Client, including but not limited to loss of use, earnings and business interruption;
The unauthorized distribution of any confidential document or report prepared by or on behalf of the Consultant for the exclusive use of the Client.
The total amount of all claims the Client may have against the Consultant or any present or former partner, executive officer, director, stockholder or employee thereof under this engagement, including but not limited to claims for negligence, negligent misrepresentation and breach of contract, shall be strictly limited to the amount of any professional liability insurance the Consultant may have available for the payment of such claims.
No claim may be brought against the Consultant in contract or tort more than two (2) years after the Services were completed or terminated under this engagement.
Documents
All of the documents prepared by the Consultant or on behalf of the Consultant in connection with the Project are instruments of service for the execution of the Project. The Consultant retains the property and copyright in these documents, whether the Project is executed or not. These documents may not be used on any other project without the prior written agreement of the Consultant.
Field Services
Where applicable, field services recommended for the Project are the minimum necessary, in the sole discretion of the Consultant, to observe whether the work of a contractor retained by the Client is being carried out in conformity with the intent of the Services. Any reduction from the level of services recommended will result in the Consultant providing qualified certifications for the work.
Dispute Resolution
If requested in writing by either the Client or the Consultant, the Client and the Consultant shall attempt to resolve any dispute between them arising out of or in connection with this Agreement by entering into structured non-binding negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled within a period of thirty (30) calendar days with the mediator, the dispute shall be referred to and finally resolved by arbitration through an arbitrator appointed by agreement of the parties or by reference to a Judge of the Ontario Court.