Terms & Conditions

Pricing that is quoted against concept drawings may be subject to amendment once Seller has completed detailed and/or engineering drawings.

Pricing quoted is valid for 90 days, unless otherwise provided for in a quotation.

Pricing for Services may include a Blended Hourly Rate which is derived from a general hourly rate sheet that is provided from time to time. Seller reserves the right to choose to apply either a Blended Hourly Rate or individual pricing per discipline either at the outset of the project, or in the event of hours to be charged for additional scope.

Where Seller quotes a component price and due to circumstances beyond Seller's control there is a material increase in the prices for such components, Seller reserves the right to amend the quoted component pricing to reflect this additional material increase.

Where Seller provides a quotation for Services that contains a specified allowance of hours, Seller shall use commercially reasonable efforts to complete those Services within the hours prescribed. However, in the event of a change in scope or due to factors outside of Seller's control, Seller reserves the right to request additional paid hours to complete the Services.

Except as otherwise provided in the Agreement or as otherwise agreed by the Parties, payment shall be made by Buyer in Canadian Dollars, upon presentation of the specified documents indicating the achievement of a required benchmark. All fees are non-refundable.

All payments due shall be made on the appointed dates in accordance with the milestone payment schedule described in the Agreement or as otherwise agreed by the Parties, subject also to any credit terms provided in the Agreement.

Interest on Overdue Accounts: Any amount not paid by Buyer on the due date shall bear interest at the rate of 2% per month (or the maximum rate permitted by law, if lower) from the due date until paid in full.

If Buyer becomes bankrupt or insolvent, or if any proceeding is brought against Buyer, voluntarily or involuntarily, under bankruptcy or insolvency laws, Seller shall be entitled, but is not obligated, to terminate the Agreement.

Seller shall be responsible for, and shall pay directly, any and all Seller Taxes to include corporate and personal income taxes imposed on Seller and its employees by the legislation of the country of incorporation of Seller and/or performance of the work and related to the execution of the Agreement (the “Seller Taxes”).

If Buyer benefits from any tax, fee or duty exemption applicable to Seller and its sub-contractors, Buyer agrees to provide Seller, without charge, before execution of the Agreement, with documentation acceptable to the taxing or customs authorities supporting the tax, fee or duty exemption and with instructions for Seller and its sub-contractors about the procedure to apply for the exemption.

Should Seller be refused the right to apply for the tax, fee or duty exemption, or should Buyer not send Seller such documentation, Seller shall invoice, and Buyer shall pay forthwith and unconditionally, the applicable tax, fee or duty.

Buyer's Agent will promptly notify Seller in writing about the revocation, expiry or any other change to any exemption. If such notification is late or does not occur, Buyer shall compensate Seller for any tax, duty, fee and fine, penalties, interest and court or administrative costs assessed against or incurred by Seller.

The Agreement Price excludes all applicable sales, use, value-added, or similar taxes, duties, fees, or charges imposed by any governmental authority, including but not limited to Harmonized Sales Tax (HST) on work performed in Ontario, Goods and Services Tax (GST) and applicable provincial sales tax on work performed elsewhere in Canada, and any equivalent state or federal sales/use tax on work performed in the United States, all of which shall be added to invoices as applicable and paid by Buyer.

Unless otherwise provided for in the Agreement, Seller shall deliver Components and Products as required to meet the agreed installation schedule (“Delivery”). Seller shall be provided with a designated area to perform the installation and suitable storage. Seller shall be responsible for security during the hours during which it is on Site performing installation services. Outside of those hours, Buyer is responsible for the security of the Site and storage.

Title to each Component and Product shall pass to Buyer upon final payment.

In the event the delivery and installation of finished goods is delayed by Buyer due to any cause (e.g., permit delays, construction scheduling, etc.), Seller shall retain the right to place the completed goods into storage on behalf of Buyer. Seller retains the right to store finished goods at Seller's facility, or a third-party location, for a period not to exceed one hundred twenty (120) days. Buyer agrees to pay expenses associated with such storage. While Seller shall show a reasonable duty of care to ensure that fixtures placed in storage are protected from damage or loss, Seller shall not assume liability for finished goods placed into storage. After one hundred twenty (120) days, Seller shall deliver the completed goods to Buyer unless alternative arrangements are agreed to between the Parties.

Unless provided by Seller as part of the service under a proposal, Buyer shall provide all necessary infrastructure (e.g., power and outlets) and ambient environments required for the safe and efficient operation and maintenance of the Components and Products on the Site in accordance with the specifications provided by Seller and all applicable industry and safety standards.

Unless otherwise agreed in a proposal, Buyer will be responsible for the preparation of each Site for the installation/implementation of the Components and Products.

Seller shall not be liable or be considered to be in breach or default of its obligations under the Agreement to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, (i) acts of God, acts (or omissions) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, war (declared or undeclared), armed conflict, acts or threats of terrorism, epidemics, pandemics, civil unrest, riot, delays in transportation, or carrier shortages; or (ii) acts (or omissions) of Buyer or Buyer's suppliers or agents, including failure to promptly (a) provide Seller with information and approvals necessary to permit Seller to proceed with work immediately and without interruption, or (b) comply with the terms of payment; or (iii) inability, on account of causes beyond the reasonable control of Seller, to obtain necessary materials, components or services. Seller shall notify Buyer in the event of any such delay. The delivery or performance date shall be extended for a period equal to the time lost by reason of the delay, plus such additional time as may be reasonably necessary to overcome the effect of such delay. Seller shall notify Buyer, as soon as practicable, of the revised delivery date.

If a delay excused by this Article extends for more than one hundred eighty (180) days and the Parties have not agreed upon a revised basis for continuing the work at the end of such delay, then either Party, upon thirty (30) days' written notice, may terminate the Agreement. Buyer shall be obligated to pay any applicable and outstanding fees, including those for Services on a time and material basis up to the date of termination.

The Purchase Price is based on Seller's design, manufacture, testing and delivery of the Components, Products and Services pursuant to and in full compliance with (i) its design criteria, manufacturing processes and procedures and quality assurance program, (ii) those portions of industry specifications, codes and standards in effect as of the date of Seller's proposal to Buyer which Seller has deemed applicable to the Components and Products, (iii) Canadian applicable laws, (iv) any mutually agreed upon specification, and (v) the Agreement.

Notwithstanding any other provisions herein, Buyer shall be responsible for timely obtaining any required authorization, such as a work permit or any other governmental authorization, for any such authorization required of Seller.

Where the Agreement calls for the design, development, or installation of digital or interactive Products intended for public-facing use, Buyer shall specify in the Agreement the accessibility standard(s) applicable to the Products, if any, having regard to Buyer's own obligations under the Accessibility for Ontarians with Disabilities Act, 2005, or equivalent legislation applicable to Buyer.

Where Buyer does not specify an applicable accessibility standard, Seller shall use commercially reasonable efforts to design such Products in accordance with the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA, to the extent applicable to the nature of the Products.

Seller warrants to Buyer that (i) the Products shall be free from defects in material, workmanship and title; (ii) the Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications; and (iii) Components shall be subject to third party terms. All warranties are subject to the limitations defined in Article 11.

Unless otherwise stated in the Agreement, the warranty period for each item of the Components shall be based on the manufacturer's warranty, which may or may not include labor to remove or reinstall, on a pass-through basis as per the warranty documentation provided by the manufacturer. Damage due to misuse, negligence, deliberate, or otherwise incidental, shall immediately void all warranties.

Seller warrants that, under normal use or service, fabricated Products shall be free from defects in material and workmanship for a period of one (1) year from the date of delivery. Seller reserves the right to repair or replace the defect at its sole discretion. Damage due to misuse, negligence, deliberate, or otherwise incidental, shall immediately void all warranties.

Unless otherwise stated in the Agreement, the warranty period for Services shall be one (1) year after performance of the Service (the “Warranty Period”).

Seller's Advanced Care Program is subject to its own terms and fees. If Buyer does not subscribe for such service, any assistance from Seller to Buyer shall be on a time and material basis at Seller's then-current rates.

If a failure to meet any Service warranty appears within the Warranty Period, Buyer shall promptly notify Seller. Seller, at its expense, shall thereafter reasonably promptly correct any warranty defect by re-performing the defective Services. Component warranties shall be handled directly between Buyer and the manufacturer.

Without prejudice to Article 11, the preceding paragraphs of this Article 9 set forth the exclusive remedies for all claims based on failure of or defect in the Components, Products or Services, whether the claim arises before or during the Warranty Period and however instituted. The foregoing warranties are exclusive and in lieu of all other warranties, conditions and guarantees, whether written, oral, implied or statutory.

Except as expressly stated herein, Seller disclaims all warranties, express, implied or statutory, including without limitation any implied warranties of merchantability or fitness for a particular purpose.

This Article 9 shall survive termination of this Agreement.

All design concepts, detailed drawings and all intellectual property rights therein, developed by Seller or provided to Buyer for review, shall remain the exclusive property of Seller (“Seller Materials”). Seller provides Buyer a limited license to use such Seller Materials solely in conjunction with the Services provided by Seller.

Buyer shall own all data or information supplied to Seller hereunder (“Buyer Data”). Buyer hereby grants Seller a limited, royalty-free, fully paid up, non-exclusive, transferable and sub-licensable license to use Buyer Data as necessary to provide the Services.

PRIVACY AND PERSONAL INFORMATION. Where Products, Services or Buyer Data include the name, image, likeness, or other personal information of an identifiable individual (including donor recognition, dedications, or similar content), Buyer represents and warrants that it has obtained all consents, releases, and rights necessary to submit such information to Seller and to permit its public display as contemplated by the Agreement, in compliance with applicable privacy legislation, including the Personal Information Protection and Electronic Documents Act (Canada) and any applicable provincial equivalent. Buyer shall indemnify and hold Seller harmless from and against any claims, damages, losses, and expenses (including reasonable legal fees) arising from any breach of this warranty, including claims of invasion of privacy, misappropriation of likeness, or defamation. Seller shall use commercially reasonable safeguards to protect Buyer Data in its possession consistent with Seller's data security practices as in effect from time to time.

All media, software and other digital content utilized in Components, Products and Services provided by Seller are subject to the terms and conditions of their respective suppliers, including user's rights, licensing fees, and copyrights. The manufacturer's warranty shall apply; Seller does not warrant the fitness or usability of provided media, software or other digital content.

Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Agreement. All intellectual property conceived, created, or provided by Seller, whether alone or with any contribution from Buyer or its personnel, shall be owned exclusively by Seller (collectively, “Intellectual Property”). To the extent Buyer may acquire any right or interest therein, Buyer irrevocably assigns all such right and interest exclusively to Seller and agrees to execute assignments and other documentation as necessary to achieve that result. Notwithstanding anything to the contrary, Buyer shall retain ownership of all Confidential Information and Intellectual Property it possessed prior to the Agreement for its own project, process, Components and facilities outside of the Products and Services provided by Seller. Moral Rights: the Parties acknowledge that moral rights in copyright-protected works forming part of the Intellectual Property cannot be assigned under Canadian law and remain with the individual author. Seller represents that it has obtained, or shall obtain prior to delivery, a waiver of moral rights from each of its personnel, employees, contractors, and freelancers who contribute to the Intellectual Property, sufficient to permit Buyer's use, modification, and public display of the Products and Seller Materials as contemplated by the Agreement without restriction or claim based on moral rights.

This Article 10 shall survive termination of this Agreement.

The total liability of Seller for all claims of any kind, whether in Agreement, warranty, tort/extra-contractual liability (including negligence), strict liability, or otherwise, arising out of or related to any Products and Services, shall not exceed the fees received under the Agreement for Seller's Services. Seller shall bear no liability for Components and Buyer's recourse shall be limited to the manufacturer of such Components. Seller shall use commercially reasonable efforts to assist Buyer in Component claims. All liability of Seller under the Agreement shall terminate upon expiration of the Warranty Period or any agreed extension thereof.

In no event will Seller or its Affiliates have any liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if Seller or its Affiliates have been advised of the possibility of such damages or if Buyer's or its Affiliates' remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

If Seller furnishes Buyer with advice or activities concerning any Components, Products or Services which is not required pursuant to the Agreement specification, the furnishing of such advice or activities will not subject Seller to any liability, whether in Agreement, warranty, indemnity, tort (including negligence), strict liability or otherwise.

Except to the extent Seller has responsibility under Article 9 (Warranty), Buyer waives rights of recovery against Seller for loss or damage to property of Buyer (excluding the Products), whether Buyer's claim is brought under breach of Agreement, warranty, indemnity, tort (including negligence), strict liability or otherwise, provided that Seller shall be responsible for the insurance deductible of Buyer to the extent of Seller's negligence for physical damage to Buyer's property up to fifty thousand dollars ($50,000), above which Buyer shall release and indemnify Seller.

For purposes of this Article, “Seller” means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective agents and employees, whether individually or collectively. This Article 11 shall survive termination of this Agreement.

Seller shall maintain, at its own expense, Commercial General Liability insurance with a minimum limit of not less than $2,000,000 per occurrence, and such other insurance as is customary for a business of Seller's size and scope of operations, including coverage in respect of Seller's obligations under Article 16 (Health and Safety Matters). Where a specific project requires higher limits, such limits shall be agreed between the Parties and reflected in the applicable Agreement.

Upon Buyer's written request, Seller shall (i) provide a certificate of insurance evidencing the coverage described in Article 12.1, and (ii) name Buyer as an additional insured under such policy with respect to the Services performed under the Agreement, subject to the insurer's standard terms for additional insured endorsements.

Seller shall maintain a valid clearance certificate from the Workplace Safety and Insurance Board (Ontario), or the equivalent authority in the jurisdiction where the Services are performed, and shall provide evidence of such clearance to Buyer upon request.

Either Party may terminate the Agreement, in whole or in part, for its own convenience upon not less than thirty (30) days' prior written notice to the other Party.

If Buyer terminates under this Article:

If Seller terminates under this Article, Buyer shall pay Seller for all Products, Components, and Services delivered, performed, or completed to the effective date of termination, valued and invoiced on the same basis as Article 13.2(a), and Seller shall refund to Buyer any amount paid in advance for Services not yet performed as of the effective date of termination, less any non-refundable deposit or commencement fee expressly identified as such in the Agreement.

Termination under this Article does not relieve Buyer of any payment obligations accrued prior to the effective date of termination, and does not affect any right or obligation of either Party that by its nature survives termination, including those set out in Articles 9, 10, 11, and 18.

General Requirements. At all times Buyer shall comply with applicable laws and shall take all other necessary and required actions for the health and safety of Seller's personnel at Buyer's Site. This includes instruction of Buyer's safety practices, proper and safe handling of Hazardous Materials, communication of information necessary for Seller's personnel to work safely and in a legally compliant manner while present at Buyer's Site, and conducting periodic safety meetings during construction and start-up. Seller may at any time conduct safety audits to ensure safe conditions exist. Neither the conduct nor non-conduct of safety audits, nor any recommendation by Seller, relieves Buyer of the responsibility to provide a safe place to work.

Excusable Delay for Unsafe Conditions. If Seller reasonably believes, in good faith, that the safety, health or security of its personnel is being or is likely to be placed at unreasonable risk due to any conditions, circumstances or practices at the Site, including local conditions, war (declared or undeclared), armed conflict or threatened conflict, civil unrest, terroristic acts or threats, the inability to obtain adequate security protections, or threat to the safety or well-being of the Site, Seller may, in addition to other rights and remedies available to it, remove some or all of its personnel from the Site, suspend performance of all or any part of the Agreement, and/or evacuate its personnel. Seller shall immediately communicate its concerns to Buyer's representatives. Any delay resulting from the foregoing shall be considered an “Excusable Delay.” Buyer shall be responsible for any costs and losses incurred by Seller for an Excusable Delay.

Communication of Applicable Legal Requirements. If Seller's work at Buyer's Site is subject to local, provincial or national legal requirements that are not reasonably available or ascertainable, Buyer shall notify Seller in writing and furnish copies of such legal requirements it reasonably understands apply to the work.

Security. When Seller's personnel are performing services on Buyer's Site, Buyer shall take all reasonable precautions for their security. Seller's personnel shall comply with Buyer's Site security requirements communicated to Seller or its personnel. Buyer shall be responsible for protecting the Site and storage when Seller is not working on Site.

Differing Site Conditions. Seller shall promptly, and if feasible before such conditions are disturbed, notify Buyer's Agent in writing of unknown physical conditions at the Site of an unusual nature, differing materially and adversely from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the Agreement. Buyer shall promptly investigate the conditions. If such conditions do materially and adversely differ and cause an increase in Seller's cost or time of performance, a mutually agreed and equitable adjustment in price and time of performance shall be made and the Agreement modified in writing accordingly.

Responding to Hazardous Materials and Conditions. If Seller encounters Hazardous Materials at the Site requiring special handling and/or disposal, Buyer shall reasonably take whatever precautions are required to legally eliminate or minimize such hazardous conditions so the work may safely proceed, including providing specialized training, equipment and alarms consistent with legal requirements and industry practice. Seller shall provide personal monitoring alarms. If such Hazardous Materials cause an increase in Seller's cost or time of performance, a mutually agreed and equitable adjustment shall be made to the Agreement price and time of performance.

Indemnification for Hazardous Materials. Buyer shall indemnify Seller for any and all claims, damages, losses, causes of action, demands, judgments and expenses arising out of or relating to (i) the presence of any Hazardous Materials present on the Site prior to the commencement of Seller's work, or (ii) Hazardous Materials improperly handled or disposed of by Buyer or its representatives.

In connection with the Agreement, Seller and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information, meaning (a) all pricing for Components, Products and Services, (b) information designated in writing as “confidential” or “proprietary” at the time of written disclosure, and (c) information orally designated as confidential at the time of oral disclosure that a person exercising reasonable business judgment would believe to be confidential. This Article does not apply to information that is or becomes public other than through the Receiving Party's breach, is received non-confidentially from another source, is independently developed, is required to be disclosed by law, or is approved for disclosure in writing by the Disclosing Party (or disclosed by Seller to its financial advisors under an equivalent confidentiality obligation).

Receiving Party agrees to: (i) use Confidential Information only in connection with the Agreement and permitted use/maintenance of the Components, Products and Services, (ii) take reasonable measures to prevent disclosure except to those with a need to know, and (iii) not disclose Confidential Information to a competitor of the Disclosing Party. Confidential Information shall not be reproduced without written consent and shall be returned upon request, except as the Agreement entitles the Receiving Party to retain it. Seller may retain one copy of Buyer's Confidential Information until its potential liability under the Agreement terminates.

If Receiving Party or its affiliates/representatives is required by law, legal process or a government agency to disclose Confidential Information, it shall provide the Disclosing Party prompt written notice to permit it to seek a protective order or waive compliance, and shall otherwise limit disclosure to what is legally required.

Nothing in this Article grants Receiving Party any license to any invention, patent, trademark or copyright now or later owned or controlled by the Disclosing Party.

Buyer shall not disclose to Seller, and Seller shall not disclose to Buyer, Confidential Information unless required to enable performance of work under the Agreement. Each Party warrants it has the right to disclose any Confidential Information it discloses, and shall indemnify and hold the other harmless against claims or damages resulting from improper disclosure by the disclosing Party.

MARKETING AND PROMOTIONAL RIGHTS.

As to any individual item of Confidential Information, the restrictions of this Article shall expire the earlier of five (5) years after the date of disclosure or three (3) years after termination or expiration of the Agreement.

Where Seller's Products or Services include software, digital content, or a content management system (whether provided directly by Seller or by a third-party supplier), Seller shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Buyer Data against unauthorized access, use, or disclosure.

In the event Seller becomes aware of a confirmed unauthorized access to, or disclosure of, Buyer Data in Seller's possession or control, Seller shall notify Buyer without undue delay and shall reasonably cooperate with Buyer's response to the incident, including providing information reasonably necessary for Buyer to meet its own notification obligations under applicable law.

Where a Component includes third-party software or a hosted service (such as a content management system), the data security terms of the applicable third-party supplier shall govern that Component, and Seller's obligations under this Article are limited to Seller's own systems and any Buyer Data held directly by Seller.

This Agreement is for the benefit of Buyer and Seller only and does not confer any rights or obligations on any third parties.

Seller may assign or novate its rights and obligations regarding the Components, Products and/or Services, in part or in whole, to one or more of its Affiliates, without Buyer's consent and upon written notice to Buyer's Agent. Buyer agrees to execute documents necessary to effect the assignment or novation. Assignment or delegation by Buyer of any duties or rights without Seller's prior written consent shall be void. Seller may assign to third parties any credits under the Agreement, subject to prior written notice to Buyer's Agent.

Nothing in this Agreement restricts Seller from subcontracting portions of its work, provided Seller remains responsible to Buyer for performance of the subcontracted scope.

Except as provided in the Article entitled “Limitation of Liability,” these provisions are for the benefit of the Parties and not for any other third party.

No modification, amendment, rescission, waiver or other change to these terms shall be binding on either party unless agreed to in writing by the Parties' authorized representatives.

The invalidity, in whole or in part, of any part of this Agreement shall not affect the validity of the remainder of the Agreement.

This Agreement may be executed in multiple counterparts that together shall constitute one agreement.