General Terms and Conditions
The following Terms and Conditions apply to all services to be performed by MB PROTOTYPING LTD (the “Contractor”) as authorized by customer (the “Customer”), and together with the applicable quote and invoice, form the “Agreement”.
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1. DESCRIPTION OF WORK. The Contractor shall render the services described in the Contract (the “Services”) to the Customer in respect of the project described in the Contract (the “Project”).
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2. TERMS AND CONDITIONS. No terms, conditions, understandings, or agreements purporting to modify or vary these Terms and Conditions shall be binding unless made in writing and signed by the Customer and the Contractor. In the event of any conflict between the Contract and these Terms and Conditions, these Terms and Conditions shall take precedence. This Agreement supersedes all previous agreements, arrangement or understanding between the parties whether written or oral in connection with or incidental to the Project.
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3. COMMENCEMENT DATE AND DELAYS. The Customer hereby agrees and recognizes that that the expected commencement date in this Agreement is an approximate date and is subject to change. The Contractor is not responsible for any delays in the provision of Services caused by elements outside the Contractor’s control, including but not limited to unavailability of materials, manufacturer’s delays, the funding of any home improvements loans, or changes or alterations in the work requested by the Customer, required by applicable laws or resulting from incorrect information or measurements supplied by the Customer. Further, the Contractor is under no obligation to begin or complete any of the Services if they cannot be performed in accordance with applicable laws, codes or ordinances, provided that the Contractor may, at the Customer’s request, perform additional work to comply with applicable laws, codes and ordinances, with the appropriate Change Order (as defined herein) and for an additional fee. The Customer agrees that if the Customer or anyone under the Customer’s control interferes with or delays the completion of the Project, the Customer may be subject to storage fees or other resulting charges.
4. PAYMENT TERMS AND DELIVERY. Payment is due to the Contractor within fourteen (14) days after the date of the applicable invoice. All customers on a payment plan must make payment for each phase of work as set out in the payment plan. Payment for each phase must be received before the next phase of work will commence. Failure to make any payment when due is a material breach of this Agreement and will entitle the Contractor, at its sole and unique option, to suspend or terminate this Agreement and the provision of the Services without prejudice to its other legal remedies. Interest will accrue on accounts overdue by thirty (30) days at the lesser of eighteen per cent (18%) per annum and the maximum legal rate of interest. Unless otherwise noted, the charges in this Agreement do not include any applicable value added, sales, or other taxes, which will be added to all invoices as required.
Products are sold “EX WORKS” (EXW), ready for collection. EX WORKS is defined in accordance with INTCOTERMS 2010 of the International Chamber of Commerce, as may be amended from time to time. Thus, the customer is solely responsible for the import customs process including payment of duties, foreign sales taxes, tariffs, customs brokerage, and handling fees.
5. CHANGES. Any changes to the Project’s original scope will require the Customer and the Contractor to first sign a change order (a “Change Order”) that will become part of this Agreement. Any Change Order must:
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be clear in its scope;
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specify any additional payment(s) the Customer will have to make; and
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specify any change in the anticipated finish date, if applicable.
Conditions differing from what the Customer represented may entitle the Contractor to request a Change Order or to discontinue the Project without further obligation to the Customer. Should the Customer refuse to make any such requested changes by the Contractor, the Customer or the Contractor may terminate this Agreement in accordance with these Terms and Conditions.
The Customer recognizes and agrees that any changes, additions, alterations, or deletions in the Project may require additional charges and time and must be approved by the Contractor in writing before they are made. Moreover, the method of payment for changes, additions, alterations, or deletions must be approved prior to work beginning on the alteration or addition to the Project.
6. ASSIGNMENT. The Customer shall not, without the prior written consent of the Contractor, assign the benefit of or in any way transfer the obligations under these Terms and Conditions, this Agreements, or any part thereof to any third party.
7. TERMINATION. If either party breaches this Agreement and fails to remedy such breach within seven (7) days of written notice to do so by the non-defaulting party, the non-defaulting party may immediately terminate the Agreement without prejudice to any other legal remedy it may have and the Customer shall forthwith pay the Contractor all fees and other charges for the services provided and materials purchased to the effective date of termination.
8. COSTS AND EXPENSES. In the event the Contractor incurs any costs or expenses to enforce any of its rights under this Agreement or to collect any amounts due, the Customer agrees to reimburse the Contractor for all such costs and expenses, regardless of their nature, including but not limited to legal fees on a substantial indemnity basis.
9. TAXES. The harmonized sales tax (HST) rate charged herein is based on information provided to the Contractor by the Customer. Should such information change, the Customer shall reimburse the Contractor for any additional taxes due to the appropriate government authority.
10.WARRANTY. The Contractor will replace product or fix any issue or defect directly related to the Project and due to or arising out of faulty workmanship by the Contractor free of charge during a period of fifteen (15) days from the date of delivery to Customer. In the event the Customer has any claims against the Contractor related to such issues or defects, the Customer agrees to give the Contractor written notice within said period. The warranties described in this section are the only warranties provided by the Contractor, either express or implied. The Contractor expressly disclaims the application of any and all other warranties in respect of the Services or the goods, products or materials installed in connection with them, express or implied, whether statutory or otherwise. Without limiting the generality of the foregoing, this warranty does not cover damage caused by normal wear and tear, improper use, improper cleaning, abuse or neglect. ASIDE FROM THE FOREGOING, MBP MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES PROVIDED OR PRODUCTS DEVELOPED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
11. DOCUMENTS. All of the documents prepared by or on behalf of the Contractor in connection with the Project are the sole property of the Contractor. The Contractor retains and reserves all copyright and other property rights related to these documents, regardless of whether the Project was executed. These documents may not be used by the Customer for any purpose other than the execution of the Project by the Contractor without the prior written consent of the Contractor. In the event the Contractor’s documents are subsequently reused or modified in any material respect without the prior written consent of the Contractor, the Customer agrees to defend, hold harmless and indemnify the Contractor from any claims advanced on account of said reuse or modification including without limitation a claim by the Contractor against the Customer or a third party to whom the Customer has provided such documents for breach of copyright and other legal claims arising from the Contractor’s ownership of such documents. Any documents produced by the Contractor in relation to the Services is intended for the sole benefit of the Customer. The documents may not be relied upon by any other party without the express written consent of the Contractor, which may be withheld for any reason. Any such consent will provide no greater rights to the third party than those held by the Customer under this Agreement. The Contractor cannot guarantee the authenticity, integrity or completeness of data files supplied in electronic format (“Electronic Files”). The Customer agrees to release, indemnify and hold the Contractor, its officers, directors, employees, contractors and agents harmless from any claims or damages arising from the use of Electronic Files. Electronic Files do not contain stamps or seals, remain the property of the Contractor, are not to be used for any purpose other than that for which they were transmitted, and are not to be retransmitted to a third party without the Contractor’s prior written consent.
12. CONFIDENTIALITY. The Customer acknowledges that in the course of this transaction, the Contractor will furnish to the Customer, or the Customer may learn, certain information which is confidential and/or proprietary in nature (“Confidential Information”) including but not limited to all pricing for products and Services. The Customer shall hold in confidence and not disclose the terms and conditions of this Agreement or any of the Confidential Information to any third party, and the Customer shall not use the Confidential Information for any purpose other than the purposes outlined in this Agreement, without the prior written consent of the Contractor, which may be withheld for any reason.
13. PHOTOS. The Contractor reserves the right to publish any photos or videos that are taken during the process of the Project. No photos or videos of any identifiable individual shall be used unless otherwise agreed to by such individual. Such photos and videos shall be used solely as a marketing and promotional tool to assist in advertising and the overall growth of the Contractor. Photos and videos may be used in all areas of advertising including but not limited to newspapers, magazines, websites, brochures, business cards or any other promotional material.
14. LIMITATION OF LIABILITY. The Customer hereby releases the Contractor from any liability and agrees to defend, indemnify and hold the Contractor harmless from any and all claims, damages, losses, and/or expenses, direct and indirect, or consequential damages, including but not limited to legal fees and court or arbitration costs, arising out of, or claimed to arise out of, the performance of the Services, excepting liability arising from breach of this Agreement or the gross negligence of the Contractor. The Customer further agrees that the total amount of all claims the Customer may have against the Contractor under this Agreement, including but not limited to claims for negligence, negligent misrepresentation, and/or breach of contract, shall be strictly limited to the lesser of fees paid to the Contractor for the Services or ten thousand dollars ($10,000). No claim may be brought against the Contractor more than two (2) years after the cause of action arose, regardless of when discovered. As the Customer’s sole and exclusive remedy under this Agreement, any claim, demand or suit shall be directed and/or asserted only against the Contractor and not against any of the Contractor’s employees, officers or directors, contractors, agents or representatives. The Contractor’s liability with respect to any claims arising out of this Agreement shall be absolutely limited to direct damages arising out of the Services and the Contractor shall bear no liability whatsoever for any consequential loss, injury or damage incurred by the Customer, including but not limited to claims for loss of use, loss of profits and/or loss of markets.
15. FORCE MAJEURE. Any delay or failure of either party to perform its obligations under the Agreement shall be excused if, and to the extent that, the delay or failure is caused or materially contributed to by force majeure. For the purposes of the Agreement, “force majeure” shall mean any act of God, strike, lockout or other industrial disturbances, act of the Queen’s enemies, sabotage, war, blockades, insurrections, riots, epidemics, lightning, earthquakes, floods, storms, fires, washouts, nuclear and radiation activity or fallout, arrests and distraints of rules and people, civil disturbances, explosions, breakage or accidents to machinery or stoppage thereof for necessary maintenance or repairs, inability to obtain labour, materials, or equipment, any legislative or judicial action which has been resisted in good faith by all reasonable means, any act, omission or event, whether of a kind herein enumerated or otherwise not within the control of such party, and by which the exercise of due diligence of such party could not have been prevented, but lack of funds on the part of such party or parties shall be deemed not to be a force majeure.
16. SEVERABILITY. If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be deemed to be severed from this Agreement and the remaining provisions of this Agreement shall continue to be binding on the Customer and the Contractor.
17. GOVERNING LAW. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
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