GENERAL TERMS AND CONDITIONS
These General Conditions of Service, including all attached Exhibits and documents referenced in those Exhibits, constitutes the complete and final Agreement between Peril Canada, and Client. It supersedes all prior or contemporaneous communications, representations, undertakings or understandings of the parties, whether oral or written, relating to the scope of work or services described in our proposal and subject matter of this Agreement, except to the extent that such prior communications have explicitly been incorporated into the Agreement or one of the attached Exhibits. Modifications of this Agreement shall not be binding unless made in writing and signed by an authorized representative of each party.
Scope of Work: The work scope, schedule and associated fees defined in the proposal are based on Peril Canada’s current understanding of the project and on information provided by the Client. If the information is inaccurate, incomplete, if site conditions change, if contract documents or specifications involving our work change, or if Client redirects Peril Canada . to change original scope in the Proposal, a written amendment adjusting the scope, schedule and cost shall be agreed upon between Peril Canada. and Client prior to implementation. If the Amendment is not completed in a reasonable time, Peril Canada . may suspend the work at its discretion.
Payment: Client shall pay Peril Canada. for services rendered in accordance with the fee schedule set forth in the proposal attached hereto and made a part of this Agreement. Unless otherwise agreed, Peril Canada. will invoice Client monthly. Payment of Peril Canada. invoices shall be due upon receipt by Client and are past due 30 days from invoice date. Invoices not paid within 30 days shall be subject to an assessed interest charge of twenty-four percent (24%) per year, calculated monthly. Legal fees and collection costs in the amount of 15% will be charged to the client for all unpaid amounts. The Client is obligated to pay Peril Canada. for services performed under this Agreement regardless of Client’s inability to secure financing, Client’s decision to delay or postpone the project, or any other reason or cause. If Peril Canada’s services to Client under this Agreement is part of Client’s services to the project Owner, in no way is payment to Peril Canada . from Client dependent on Owner payment to Client for reimbursement of services.
Standard of Care: Services performed by Peril Canada. will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the professions currently practicing under similar conditions in the same locality. No other representations, and no warranties or representations of any kind, either expressed or implied, are made.
Independent Contractor: The parties acknowledge and agree that Peril Canada. shall be an independent contractor and shall have responsibility for and control over the means of providing its services. Peril Canada. shall have the right to use subcontractors, as Peril Canada . deems necessary to assist in the performance of services.
Right of Entry, Permits, Site Information and Utilities: Client shall obtain all necessary permits and licenses and provide right of entry, access, and necessary permissions for Peril Canada. and its subcontractors to carry out the Services. Client warrants that it has furnished to Peril Canada. all information known to, or suspected by, Client relating to the past and existing conditions of the site, including but not limited to on-site hazardous materials, and subterranean utilities. Peril Canada . may rely on such information. Client shall defend, indemnify and hold harmless Peril Canada. from all liability and
damages to underground utilities or structures or any injury or loss arising from damage to underground utilities or structures whose locations are known to Client but not provided to Peril Canada ., or are provided incorrectly by Client.
Safety: It is explicitly agreed upon that Peril Canada. is solely responsible for the safety of its personnel in performance of the services provided in this agreement. Peril Canada’s professional services under this contract do not include, expressly or implied, the responsibility for protection or safety for other personnel on the Site that ignores the instructions presented, nor is Peril Canada. responsible for the review or adequacy of Site safety. Client shall provide safe access to the Site. If access to required locations of the Site in order to perform our work do not comply with current Federal, Provincial, or local laws, Peril Canada. may at its discretion suspend services until such identified conditions are brought into compliance.
Discovery of Hazardous Materials: Client recognizes that hazardous or suspected hazardous substances may be discovered at the site in the course of the Services and that the presence of such substances is neither the responsibility nor the cause of Peril Canada .. All contaminated samples, materials, and field equipment that cannot be readily cleansed shall remain the property and responsibility of the Client for proper handling and disposal. Client agrees that the discovery of any such substances shall constitute a changed condition for which Peril Canada. shall be fairly compensated. Client agrees to waive any claim against Peril Canada ., and agrees to defend, indemnify, and hold Peril Canada . harmless from any claim or liability for injury or loss of any type arising from any alleged or actual discovery of hazardous or suspected hazardous substances.
Insurance:: Peril Canada . carries and shall maintain: worker’s compensation insurance in statutory required amounts; Peril Canada . carries commercial general liability coverage and professional liability coverage. On demand, these amounts will be mutually agreed upon prior to commencing any work. Certificates for all such policies of insurance shall be provided to the Client upon request.
Indemnification:: Peril Canada agrees to indemnify and hold harmless Client (including its officers, directors, employees and agents) from and against any and all losses, damages, liabilities and expenses (including reasonable legal fees and reasonable costs of investigation) resulting from or arising out of any injury or death of any person (including employees and agents of Client and Peril Canada .), or damage or loss or destruction of any property (including property of Client and Peril Canada . and their respective employees and agents) resulting from or arising out of negligence or willful misconduct on the part of Peril Canada . in performing services hereunder to the extent caused by the negligent performance of services by Peril Canada .. Client agrees to defend, indemnify and hold harmless Peril Canada . (including its officers, directors, employees, agents, and subcontractors) from and against any and all losses, damages, liabilities and expenses (including legal fees and reasonable costs of investigation) to the extent resulting from or arising out of (a) any negligence or willful misconduct of Client; (b) any breach by Client of any warranties or other provisions hereunder; or (c) any condition existing at the project site prior to the arrival of Peril Canada . of which Peril Canada . had no actual knowledge and over which Peril Canada . had no control
Limitation of Liability: To the fullest extent permitted by law, the liability of Peril Canada . (including its officers, directors, employees, agents, and subcontractors) to Client, or any third party, including any company affiliated with such parties, for damage or alleged damages whether in contract, tort (including negligence), or otherwise, shall not exceed $50,000 or the amount of the contract, whichever is greater. Any change or addition to work performed under this contract, whether authorized to Peril Canada . orally or in writing, shall be included in this liability limitation. It is expressly agreed that this is the sole and exclusive remedy of Client against Peril Canada . (including its officers, directors, employees, agents, and subcontractors) for professional services provided under this Agreement. In no way shall Peril Canada .
(including its officers, directors, employees, agents, and subcontractors) be liable, whether in contract, tort, or otherwise, to Client for any loss of profits, delay damages, or any incidental or consequential loss or damage of any nature arising at anytime or from any cause, including negligence or breach of contract. Documents, including but not limited to reports, field data, laboratory data, and calculations submitted to Client by Peril Canada . are forbidden for reuse without Peril Canada’s written consent. Any unauthorized reuse of documents is at Client’s sole risk, and with no liability or legal recourse to Peril Canada . (including its officers, directors, employees, agents, and subcontractors).
Ownership and Use of Instruments of Service:: All reports, plans, data, notes, drawings, and other documents prepared by Peril Canada . are considered its professional work product and shall remain the copyright property of Peril Canada .. The Services and documents provided by Peril Canada . are intended for one-time use only. At the request and expense of Client, Peril Canada . shall provide the Client with copies of such documents. Client acknowledges that electronic media are susceptible to unauthorized modification, deterioration, and incompatibility, and therefore Client cannot rely solely upon the electronic media version. Peril Canada . will provide hard copy documents upon request.
Delays:: If site conditions prevent or inhibit performance of Services or if unrevealed hazardous waste materials or conditions are encountered, Services under this Agreement may be delayed. Client shall not hold Peril Canada . responsible for damages or delays in performance caused by any such delays, or delays caused by the Client, its subcontractors, acts of God, acts and/or omissions of governmental authorities and regulatory agencies or other events which are beyond the reasonable control of Peril Canada . Delays in excess of thirty (30) days shall, at the option of Peril Canada ., make this Agreement subject to termination or to renegotiation.
Litigation:: In the event of a dispute relating to an Peril Canada . service or report results in litigation against Peril Canada . by Client or another claimant, and that Client/claimant does not prevail against Peril Canada ., then the Client/claimant shall pay all costs incurred by Peril Canada . in the defense of the claim, including reasonable attorneys fees. In any other legal dispute, the Client shall reimburse Peril Canada . for all direct expenses and time in connection with any disputes, litigation or arbitration involving representatives or documents of Peril Canada . arising out of the Services in accordance with Peril Canada’s then prevailing Schedule of Fees.
Property Transactions: In connection with any contemplated or actual purchase or sale of property related to the Services, Peril Canada . will not be responsible for the independent conclusions, interpretations, interpolations and/or decisions of the Client or others arising out of data which is directly the product of Peril Canada’s Services.
Assignment: This Agreement shall be binding upon and to the benefit of the parties hereto and their respective successors and assigns provided that it may not be assigned by either party without consent of the other. All representations and obligations (including without limitation the obligations of Client to indemnify Peril Canada . and the Limitation of Liability) shall survive indefinitely the termination of the Agreement.
Severability: Any provision, to the extent it is found to be, unlawful or unenforceable shall be stricken without affecting any other provisions of this Agreement.
Termination: Client reserves the right to terminate the project at any time. In the event of such termination, Client shall pay Peril Canada for all services performed and expenses incurred to the effective date of termination. In addition, Client shall pay Peril Canada a reasonable amount for services and expenses directly attributable to termination, such as costs of terminating subcontracts, demobilization costs, and other related close-out costs. Peril Canada shall have the right to terminate its obligations pursuant to this Agreement under the following circumstances: in the event of a breach of any obligation of Client or if Peril Canada . is unable, for any reason beyond its control, to perform its obligations pursuant to this Agreement in a safe, lawful or professional manner.
Written Notice: Notices pertaining to this Agreement shall be in writing and deemed to have been duly given if delivered in person, by overnight courier, or by facsimile with electronic confirmation to the respective party.
Governing Law: The laws of the Province in which the project site is located shall govern this Agreement.