GENERAL TERMS AND CONDITIONS FOR SERVICES
(a) These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Micro Moves Toronto (”Service Provider”) to the Customer (”Customer”).
(b) The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern.
(c) These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms.
3. Performance Dates. Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
4. Customer’s Obligations. Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and provide such clear and unobstructed access to Customer’s premises and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services in a timely manner;
(b) ensure that Customer materials or information are complete and accurate in all material respects;
(c) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement.
(d) ensure that items to be moved are adequately packed, wrapped, and organized in such a manner as to allow the Service Provider to perform the Services securely and within the time allocated in accordance with the Order Confirmation.
5. Customer’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, its agents, or employees, Service Provider 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 Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Specifically with reference to 4(d), Customer acknowledges and agrees that any deficiencies in packing, wrapping, or organizing the items to be moved that cause an increase in time quoted may result in additional fees. Customer further acknowledges that deficiencies in packing, wrapping, or organizing the items to be moved that results in damage of the items themselves are the sole responsibility of Customer, and Customer expressly waives any liability as against Service Provider for such damages or deficiencies.
6. Change Orders.
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate 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 in accordance with Section 22.
(c) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
7. Fees and Expenses: Payment Terms: Interest on Late Payments.
(a) In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in Section 4 of the Order Confirmation.
(b) Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
(c) Customer shall pay all invoiced amounts due to Service Provider on receipt of Service Provider’s invoice. Customer shall make all payments hereunder in Canadian dollars by cash, cheque, or credit card, unless an alternative payment method is agreed-upon.
(d) In the event payments are not received by Service Provider 7 days after becoming due, Service Provider may charge interest on any such unpaid amounts at a rate of twelve percent (12%) per annum or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.
8. Taxes. Customer shall be responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial, territorial or local governmental entity on any amounts payable by Customer hereunder. Any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to the Services provided under this Agreement are for the Customer’s account, and Customer hereby agrees to pay such taxes.
9. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
(b) Service Provider shall not be liable for a breach of the warranty set forth in Section 9(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider on or before completion of Services at which time Customer shall review and immediately report any deficiency or damage.
(c) Subject to Section 9(b), Service Provider shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTION 9(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(a).
10. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OF TRADE OR OTHERWISE.
11. Limitation of Liability.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION IN THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement and such failure continues for 7 days after Customer’s receipt of written notice of non-payment;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part, specifically those indicated at sections 4 and 5 of these Terms; or
13. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, 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, epidemics, pandemics, lock-outs, strikes, or other labour 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, or power outage, provided that, if the event in question continues for a continuous period in excess of Seven (7) calendar days, either party shall be entitled to give notice in writing to the other party to terminate this Agreement.
15. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
16. 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 bind the other party in any manner whatsoever.
17. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
18. Choice of Forum. Any legal suit, action, litigation or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Province of Ontario and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
19. Notices. All notices, requests, consents, claims, demands, waiver, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be deemed effectively given (a) when received, if delivered by hand; (b) when received, if sent by a nationally recognized overnight courier (with all fees pre-paid); (c) when sent, if by facsimile or email, if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail by the Canada Post Corporation.
20. 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.
21. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Choice of Forum, and Survival.
22. Amendments and Modifications. This Agreement may only be amended or modified in writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.