Terms & Conditions

TERMS AND CONDITIONS FOR SERVICES

These terms and conditions for services (“Terms”) apply in regard to the proposal (the “Proposal”) and/or order (“Order”) prepared by T2 Utility Engineers Inc. including any and all of its affiliates and/or subcontractors (“T2ue”) to which these Terms are attached. These Terms, along with the Proposal and any Order comprise the agreement between the client identified on the Proposal (“Client”) and T2ue (collectively “Agreement“), and supersedes all prior or contemporaneous written and oral understandings, agreements, negotiations, representations, warranties, and communications.

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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 otherwise bind the other party in any manner whatsoever.

SERVICES: T2ue shall provide services to the Client for the project (“Project”), as defined in the Agreement (the “Services”) in accordance with the Agreement.

PROJECT SCHEDULE: T2ue shall use commercially reasonable efforts to meet the Project schedule dates specified in the Proposal. These dates are not binding and are estimates only.

CLIENT’S RESPONSIBILITIES: Client shall provide/perform the following in a timely manner so as not to delay delivery of the Services or otherwise prevent the prompt and efficient delivery of the Services:

Provide accurate information about the location and survey of the site where Services are to be provided.
Cooperate with T2ue in all matters relating to the Services.
Secure legal rights to and provide access to the Project site property and provide such authorizations reasonably required or useful to allow T2ue staff to access the site for the performance of the Services and activities in preparation thereof and/or ancillary thereto.
Respond promptly to any T2ue request to provide direction, information, approvals, authorizations, instructions, directions or decisions that are reasonably necessary for T2ue to perform Services in accordance with the requirements of this Agreement.
Provide the materials, data, or information that T2ue may request from time to time that is reasonably necessary to carry out the Services in a timely manner and ensure that such materials, data, or information provided are current, complete and accurate in all material respects.
Comply with all applicable laws in relation to its operations, as well as its receipt and use of the Services.
Before the date on which the Services are to start, and maintain throughout the term of this Agreement, all required licenses, permits, authorizations and consents to allow T2ue to perform the Services.
Give prompt consideration, response and action to all communications, reports and other documents relating to the Services received from or furnished by T2ue, and inform T2ue in writing of decisions and otherwise respond within a reasonable period of time so as not to delay the Services or increase the cost of performance of the Services.

CLIENT’S ACTS OR OMISSIONS: If T2ue’s performance of its obligations under this Agreement is prevented or delayed, or if the cost of such performance is increased, by Client’s conduct or that of its agents, subcontractors, consultants or employees, T2ue 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 Client, in each case, to the extent arising directly or indirectly from such prevention, hindrance or delay and Client shall be solely responsible for any increase in the cost of performance.

COMPENSATION AND PAYMENT: In consideration of the provision of the Services by T2ue under this Agreement, Client shall pay T2ue the compensation described below:

Compensation: Client shall pay T2ue the fees, charges and other amounts set forth in the Proposal (collectively, “Compensation”). If the Agreement extends across multiple years, the compensation paid to T2ue may be adjusted due to changes in market conditions, underlying labour costs, overhead and pricing influences.
Payment: Invoices for T2ue’s Services shall be submitted on a monthly basis and are payable within thirty (30) days after the invoice date. In the event that the Client disputes any portion of an invoice, client shall notify T2ue – of such disputed items within ten (10) days of invoice date. Retainers/deposits shall be credited on the final invoice. Interest will accrue on accounts overdue by 30 days at the lesser of 1.5 percent per month (18 percent per annum) or the maximum legal rate of interest allowable.
Unless disputed in good faith and notice of the foregoing is provided as set forth above, failure to make any payment when due is a material breach of this Agreement. In the event any invoice has not been paid in full within ninety (90) days of the invoice date, T2ue shall have the right to immediately suspend all or any portion of the Services hereunder indefinitely, pending payment in full of such invoice(s) together with all accrued interest thereon.
Taxes: Client shall be responsible for all sales, use, value added and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial, state or local governmental entity on any amounts payable by Client hereunder.

CHANGE ORDERS: If either party wishes to change the scope or manner of or other aspects relating to, performance of the Services, it shall submit details in writing of the requested change in a timely manner to the other party. T2ue shall, within a reasonable time after such request is communicated, provide a written report to Client of:

the estimated time required to implement the change
any necessary variations to the compensation, fees, charges and other amounts payable for the Services arising from the change
the estimated effect of the change on the Services, delivery of the Services and timeline for completion
any other impact the change might have on the performance of this Agreement

Promptly after receipt of the written report, the parties shall negotiate in good faith and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.

T2ue may charge for the time it spends assessing and documenting a Client request for a change and preparation of the report of any resulting Change Order, on a time and materials basis at its then current rates.

DOCUMENTS: Unless otherwise agreed to by the parties in writing, all of the tangible copies of the documents prepared by or on behalf of T2ue and identified as deliverables in the Proposal (herein called the “Documents”) will become the property of Client upon payment in full of the Compensation. Any copyright in the Documents and any right, title and interest in the inventions, processes, methods, algorithms, calculations and other subject matter included

or referenced in the Documents shall be retained and exclusively owned by T2ue and its licensors. Subject to payment in full of the Compensation, T2ue grants to Client a non-exclusive right and license to use, disclose and reproduce the Documents for its internal use solely for the purpose of the Project. All reproductions of Documents shall include a notice of copyright ownership and notice of the restrictions regarding distribution and use of the Documents.

DATA AND DOCUMENT RETENTION: T2ue will retain all data and Documents in accordance with the T2 Utility Engineers Data Retention Policy, unless otherwise agreed upon in writing. Notwithstanding the foregoing, Client is solely responsible for creation and preservation of backups in terms of the foregoing information and materials.

LIMITATION OF USE: Client shall not amend, alter, revise, reuse, disclose or reproduce any of the Documents for the completion of another project or work . Client shall take all reasonable measures to ensure that any and all copies of the Documents in its possession or under its control are safeguarded against unauthorized access, reproduction, interception and/or distribution.

T2ue shall have no responsibility for any loss or damage suffered by Client or others resulting from any unauthorized use or modification of the Documents, errors in transmission of the Documents, and/or changes to the Documents by others. The Documents may not be relied upon by Client for design and construction work undertaken by other parties (even where the foregoing relates directly to the Project). The Documents and all assessments, determinations, recommendations and other information contained therein must be verified for their currency, accuracy and completeness. The Client agrees to defend, indemnify and hold T2ue harmless from and against all claims, demands, losses, damages, liability and costs associated with any use of or reliance on the Documents by the Client or any third party.

In the event any of the Documents are modified in any respect, without involvement and oversight of T2ue, Client agrees that any modification is at the Client’s sole risk.

In the event that Client is in default of any of its obligations under this Agreement, T2ue may revoke the licenses granted in regard to the Documents upon providing written notice to Client. In such event, Client shall forthwith return to T2ue all Documents and ensure that no residual copies, whether tangible or electronics, of any part of any Documents are retained by the Client or its agents, contractors, employees, service providers and other representatives.

STANDARD OF CARE: The standard of care for all Services performed under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. T2ue makes no warranties or guarantees under this Agreement in connection with the Services. T2ue disclaims any warranty or condition whatsoever with respect to the Services including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, non- infringement of intellectual property rights of a third party or accuracy; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. T2ue does not guarantee, warrant, or represent that the Services, advice or Documents will result in or lead to any particular outcome. Client acknowledges that all business, operational or technical decisions based on the Services, or T2ue’s findings, advice and/or recommendations are made at Client’s sole risk.

CONFIDENTIALITY: Both parties shall use reasonable efforts to keep confidential all data and information which is furnished or made available by or for the respective parties under this Agreement and is either marked or otherwise identified as “confidential” or would otherwise reasonably be understood as being confidential having regard to its content, the context and manner in which it was disclosed and prior indications by the disclosing party in terms of the same or similar information. Confidentiality obligations shall not apply if such data or information is generally accessible to the public, was known to the receiving party at the time of disclosure, or was rightfully obtained by the receiving party on a non-confidential basis from a third party.

PERSONAL INFORMATION: Unless otherwise agreed to by the parties in writing, Client shall only collect and use individually identifiable information from or about T2ue employees if such collection and use is required for the purposes of completion of the Project. Client shall only collect and use all Personal Information in accordance with applicable federal, state or provincial personal information and/or data protection legislation.

NON-SOLICITATION OF EMPLOYEES: Neither party shall knowingly solicit, recruit, hire or otherwise employ or retain the employees of the other party during the Term of this Agreement and for one (1) year following the termination of this Agreement or expiration of the term of this Agreement without the prior written consent of the other party. However, neither party shall be restricted from soliciting or recruiting generally in the media, or from hiring, without prior written consent, the other party’s employees who answer any general advertisement or otherwise voluntarily applies for hire without having been personally solicited directly or indirectly.

For a breach of Non-Solicitation, an amount equal to twice the base annual salary of the recruited employee at the time of their departure shall be paid by the hiring party to the other party. The parties acknowledge and agree that the foregoing is a reasonable estimate of damages suffered in terms of a breach of the foregoing non-solicitation obligation.

INDEMNIFICATION: T2ue shall defend Client from and against any and all claims, actions and legal proceedings asserting damages or injuries to persons or property caused by the negligence, gross negligence or willful misconduct of T2ue or anyone acting under its direction or control or on its behalf in terms of the delivery of Services under this Agreement (each, a “Client Claim”). For clarity, a Client Claim does not include any claim, action or legal proceeding to the extent it includes assertions other than those listed above or to the extent Client shares responsibility for the events, circumstances, conduct and/or events giving rise to the claim, action or legal proceeding, including, without limitation, Client’s own negligence, breach of contract, willful misconduct, site condition, information supplied by Client, and/or directions provided by Client . T2ue shall indemnify and hold harmless Client from any damages and costs finally awarded by a court of competent jurisdiction in terms of any Client Claim, together with any prejudgment or post-judgment interest, or any amount in settlement of any Client Claim.

Client shall defend T2ue from and against any and all claims, actions and legal proceedings asserting (i) damages or injuries to persons or property caused by the negligence, gross negligence or willful misconduct by Client or anyone acting under its direction or control or on its behalf in connection with this Agreement and/or (ii) environmental liability arising from, or in relation to, any condition, not caused by the negligence of T2ue or anyone acting under its authority (each, a “T2ue Claim”). For clarity, a T2ue Claim does not include any claim, action or legal proceeding to the extent it includes assertions other than those listed above or to the extent T2ue shares responsibility for the events, circumstances, conduct and/or events giving rise to the claim, action or legal proceeding, including, without limitation, T2ue’s own negligence, breach of contract or willful misconduct. Client shall indemnify and hold harmless T2ue from any damages and costs finally awarded by a court of competent jurisdiction in terms of any T2ue Claim, together with any prejudgment or post-judgment interest, or any amount in settlement of any T2ue Claim.

The duty to indemnify does not include the duty to pay for or to provide an up-front defense against unproven claims or allegations and in the event an indemnifying party successfully defends an indemnified claim against an indemnified party, the indemnified party shall reimburse the indemnifying party for all costs and expenses incurred by the indemnifying party in the defence of the claim, less any amounts received by the indemnifying party in terms of cost awards or third party contributions to the payment of said costs.

An indemnifying party’s indemnification obligation in regard to an indemnified claim is subject to and conditional on the indemnified party providing the indemnifying party with prompt notice of any such indemnified claim, the indemnifying party having sole control over the defence and settlement of such indemnified claim, and the indemnified party providing such assistance as the indemnifying party may reasonably request in terms of the defence and settlement of such indemnified claim.

For clarity, where any indemnified claim results from the joint negligence, gross negligence, willful misconduct or contractual breach, by Client and T2ue, the amount of any indemnity payable by an indemnifying party to the indemnified party shall equal the proportionate part that the amount of such claim attributable to indemnifying party’s negligence, gross negligence, willful misconduct, or contractual breach bears to the amount of the total indemnifiable amount attributable to the joint negligence, gross negligence, willful misconduct or contractual breach, at issue.

EXCLUSION & LIMITATIONS OF LIABILITIES: T2ue will not be responsible or liable in terms of this Agreement or the subject matter thereof for any lost profits, loss of sales, loss or diminution of revenues, business interruption, loss of business opportunity, failure to realize expected savings, loss of use, loss of reputation, lost or corrupted data, or depreciation of goodwill, and will not be responsible or liable for any indirect, consequential, incidental or special damages of any sort, whether arising under breach of contract, tort or otherwise, even advised of the possibility of such damages. Without limitation to the foregoing, T2ue’s aggregate liability under the Agreement and in terms of the subject matter of the Agreement, whether in contract, tort or otherwise, will not exceed the lesser of: (a) the fees paid to T2ue for Services during the immediately preceding 12-month period; and (b) the amount of insurance coverage actually paid out to T2ue in terms of such liability. No claim may be brought against T2ue in contract or tort more than two (2) years after the cause of action first arose. Any claim, suit, demand or action brought under the Agreement shall be directed and/or asserted only against T2ue and not against any of T2ue’s employees, shareholders, officers, directors, agents, contractors and other representatives.

T2UE SHALL NOT BE LIABLE FOR ANY LOSS WHICH IS CAUSED AS A RESULT OF CLIENT HITTING AN OBJECT BELOW THE SURFACE OF THE GROUND (INCLUDING, WITHOUT LIMITATION, ANY UTILITY) OR WITHIN THE SLAB WHICH COULD NOT REAONABLY BE DETECTED USING GROUND PENETRATING RADAR AND/OR AN ELECTROMAGNETIC LOCATOR AT THE TIME THE SERVICES WERE CARRIED OUT BY THE CONTRACTOR .

FORCE MAJEURE: If performance of the Services is affected by causes beyond T2ue’s reasonable control, the Project schedule and the Compensation shall be equitably adjusted by mutual agreement of the parties. T2ue shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement to the extent such failure or delay is caused by, attributable to or results from acts or circumstances beyond the reasonable control of T2ue including, without limitation, inclement weather conditions, 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, pandemic/epidemic, lock-outs, strikes or other labor 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, power outage, and/or unavailability or reduced availability of public utilities or public infrastructure or similar causes and without the fault or negligence of the delayed party. If the event in question continues for a period in excess of thirty (30) consecutive days, either party will be entitled to terminate this Agreement for convenience and without liability by providing the other party with written notice.

INSURANCE: T2ue shall maintain Insurance which it deems to be reasonable throughout the term of this Agreement. T2ue shall provide Client with certificates of insurance in terms of such coverage upon written request.

Client assumes sole responsibility and waives all rights and claims against T2ue for all loss of or damage to property owned by or in the custody of Client and any items at the site or in transit thereto however such loss or damage shall occur, unless caused solely by the negligence of T2ue.

Client agrees to maintain appropriate property insurance and shall require its insurers to waive all rights of subrogation against T2ue for claims covered under any property insurance that Client may carry. Such waivers shall survive termination of this Agreement or expiration of its term.

TERM AND TERMINATION: This Agreement comes into force on the date specified in the Quote and will continue in effect until terminated by either party with at least thirty (30) days prior written notice to the other party. In the event of any termination, T2ue shall be paid for all Services rendered and reimbursable costs incurred up until the effective date of termination. In the event of termination for any reason, the Client shall pay all additional compensation related to termination of this Agreement, as set forth in the Proposal and/or Order. Without limitation to the foregoing, in the event of termination by the Client due to the termination or suspension of the Project or other factors relating to the Project, the Client shall pay all additional costs incurred by T2ue related to such termination and/or suspension of the Project.

In addition to any remedies that are provided under this Agreement, T2ue may terminate this Agreement with immediate effect upon written notice and without liability if the Client becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or debt restructuring or makes any assignment for the benefit of its creditors.

DISPUTE RESOLUTION: If requested in writing by either the Client or T2ue, the Parties shall attempt to resolve any dispute between them arising out of or in connection with this Agreement by entering into a management/principal level meeting(s). The first such meeting shall occur within thirty (30) days from the first date of the written request for such meeting.

If a dispute cannot be settled informally between the Parties within a period of sixty (60) calendar days from the first date of the written request, the Parties shall enter structured non-binding negotiations with the assistance of a mediator. The mediator shall be appointed by agreement of the Parties.
If the Parties are unable to reach an acceptable resolution of the dispute, controversy, or claim through the mediation process, each party may exercise any and all rights and remedies available to it under this Agreement and any and all rights and remedies at law or in equity.

ASSIGNMENT: Neither party to this Agreement shall, without the prior written consent of the other party, which shall not be unreasonably withheld, assign this Agreement or any right, claim or obligation under this Agreement or any part thereof. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and except as otherwise provided herein, upon their executors, administrators, successors, and permitted assigns.

NO THIRD-PARTY BENEFICIARY: 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 this Agreement.

ENTIRE AGREEMENT: This Agreement supersedes any and all other agreements, either oral or in writing, between the parties relating to the subject matter of this Agreement and is the entire understanding and agreement related thereto. This Agreement may be amended by mutual consent of the parties in writing to be attached hereto and incorporated herein, executed by T2ue’s and the Client’s authorized representatives.

WAIVER: Failure by one party to notify the other party of a breach of any provision of this Agreement shall not constitute a waiver of any continuing breach. Failure by one party to enforce any of its rights under this Agreement shall not constitute a waiver of those rights. The waiver by either party of its rights or remedies in terms of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, as a waiver of such rights or remedies in terms of any subsequent breach of the same or any other provision thereof.

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.

SURVIVAL OF PROVISIONS: The termination of this Agreement or expiration of its term, or the completion of the Project, shall not affect the provisions, and the rights and obligations set forth in which either by their terms state or evidence the intent of the Parties that the provisions survive the expiration or termination, or must survive to give effect to the provisions.

GOVERNING LAW: The validity of the Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be interpreted and governed by the laws of the Province or Territory in which the work is being completed and the Federal laws of Canada that apply in the Province or Territory in which the work is being completed.