“Company” is ROLLerUP a corporation organized and existing under the laws of the Province of Ontario
“Customer” is as specified in Schedule A: Company’s Services
“Product” is as specified in Schedule A: Company’s Services
“Service” is the Product and the services therewith
“Estimate” is as specified in Schedule B: Estimate
“Services Agreement” is an agreement between the Company and a Customer
1. COOLING-OFF PERIOD
The Company does not provide cooling-off period as defined in Consumer Protection Act, 2002.
2. CUSTOMER RESPONSIBILITIES
Unless otherwise provided for in the Estimate, the Company shall not be responsible, nor liable, for the following, which shall be the Customer’s sole responsibility:
(a) cooperating with the Company in all matters relating to the Services Agreement and providing access to the Premises as may reasonably be requested by the Company for the purposes of performing the Services;
(b) responding promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the Company to perform Services in accordance with the requirements of the Services Agreement , and ensure that such are complete and accurate in all material respects;
(c) obtaining, before the date on which the Product is to be serviced, and maintaining in effect all necessary licenses, permits, consents, and complying with all applicable laws, regulations, and ordinances in relation to the Services, including building, electric, zoning, or other municipal codes, by-laws, or regulations applicable to the Premises;
(d) clearing and properly preparing the Premises prior to Service, including reserving elevators and providing adequate space for the Company’s Service equipment, ensuring that the Premises are free from any and all debris, furniture, fittings, appliances, and existing Product, which must be removed prior to Service by the Customer, as well as reinstallation of any such components following Service of the Product;
(e) protecting existing floors in areas where the Product will be serviced as well as an access path from the door to Service area, prior to Service;
The Customer shall use the Product only in accordance with ROLLerUP’s General Care, Cleaning and Maintenance Guide, as specified in Schedule C for Habitat Screens and Schedule D for Rollshutters respectively.
3. TITLE AND RISK OF LOSS, SECURITY INTEREST
Title and risk of loss passes to the Customer upon delivery of the Product. As collateral security for the payment of the purchase price of the Product, the Customer hereby grants to the Company a lien on and security interest in and to all of the right, title, and interest of the Customer in, to and under the Product,
wherever located, and whether now existing or hereafter arising acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
4. RELEASE OF THE COMPANY
Subject to the terms of this agreement in general and the terms of the warranty as detailed in section 5 below in particular, the Customer upon acceptance of Services done, shall sign the document attached hereby as Schedule E: Release Of The Corporation And Its Affiliates, releasing the Company and it’s affiliates as detailed in same Schedule thereof.
5. LIMITED WARRANTY
EXCEPT AS SET FORTH HEREIN, THE COMPANY’S WARRANTY IS EXCLUSIVE. THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY EXIST BY OPERATION OF LAW, IN WHICH CASE SUCH WARRANTIES ARE LIMITED TO THE DURATION PROVIDED BY LAW.
THE COMPANY’S LIMITED WARRANTY IS FOR THE PERIOD OF TIME THAT WILL IN NO CASE EXCEED FIVE YEARS AND IS IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS AS SET FORTH IN COMPANY’S WARRANTY AS SPECIFIED IN SCHEDULE C FOR HABITAT SCREENS AND SCHEDULE D FOR ROLLSHUTTERS RESPECTIVELY.
IN NO EVENT WILL THIS LIMITED WARRANTY COVER ANY OF THE FOLLOWING:
(a) damage resulting from misuse, abuse, negligence, accidents, abnormal or commercial use, or improper or inadequate maintenance or care;
(b) damage, deterioration, fading, or discolouration due to normal wear and tear arising from use;
(c) damage, deterioration, fading, or discolouration due to exposure to the elements including but not limited to light, water, or fire;
(d) damage or defects attributable to any modification, alteration, or repair by any person other than authorized agents of the Company.
THE COMPANY SHALL NOT BE LIABLE FOR A BREACH OF THIS LIMITED WARRANTY UNLESS THE CUSTOMER GIVES WRITTEN NOTICE OF THE DEFECT, REASONABLY DESCRIBED, TO THE COMPANY WITHIN THIRTY (30) DAYS OF THE TIME WHEN THE CUSTOMER DISCOVERS OR OUGHT TO HAVE DISCOVERED THE DEFECT;
REFUNDS ARE NOT PERMITTED UNDER THIS LIMITED WARRANTY. ANY PARTS REPAIRED OR REPLACED UNDER THIS LIMITED WARRANTY WILL BE COVERED BY THE LIMITED WARRANTY FOR THE REMAINDER OF THE ORIGINAL WARRANTY PERIOD ONLY. THIS LIMITED WARRANTY IS NULL AND VOID IF THE PRODUCT HAS BEEN MOVED FROM ITS ORIGINAL DELIVERY POINT. THIS LIMITED WARRANTY IS AVAILABLE ONLY TO THE ORIGINAL CUSTOMER AND CANNOT BE ASSIGNED.
THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATED TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES AGREEMENT , WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO THE COMPANY UNDER THE SERVICES AGREEMENT , OR INSURANCE COVERAGE AVAILABLE, AT THE TIME OF SETTLEMENT OR JUDGMENT, WHICHEVER IS GREATER.
IF THE COMPANY’S PERFORMANCE OF ITS OBLIGATIONS UNDER THE SERVICES AGREEMENT IS PREVENTED OR DELAYED BY ANY ACT OR OMISSION, INCLUDING BUT NOT LIMITED TO BREACH OF SECTION 2 OF THESE TERMS AND CONDITIONS, OF THE CUSTOMER OR ITS AGENTS, SUBCONTRACTORS, CONSULTANTS, OR EMPLOYEES, THE COMPANY SHALL NOT BE DEEMED IN BREACH OF ITS OBLIGATIONS UNDER THE SERVICES AGREEMENT OR OTHERWISE LIABLE FOR ANY COSTS, CHARGES, OR LOSSES SUSTAINED OR INCURRED BY THE CUSTOMER, IN EACH CASE, TO THE EXTENT ARISING DIRECTLY OR INDIRECTLY FROM SUCH PREVENTION OR DELAY. FOR GREATER CLARITY, IN NO EVENT SHALL THE COMPANY BE RESPONSIBLE FOR THE PERFORMANCE OF ANY OBLIGATION ARISING OUT OF OR RELATED TO SECTION 2 OF THESE TERMS AND CONDITIONS.
The Customer shall indemnify, defend, and hold harmless the Company and its directors, officers, employees, agents, affiliates, successors and permitted assigns (collectively, the “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, fees and the costs of enforcing any right to indemnification under the Services Agreement and the costs of enforcing any right to indemnification under the Services Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or the Company arising out of or in connection with the Services under the Services Agreement or the Customer’s negligence, willful misconduct or breach of the Services Agreement . The Customer shall not enter into any settlement without the Indemnified Party’s prior written consent.
8. FORCE MAJEURE
The Company shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached the Services Agreement , for any failure or delay in fulfilling or performing any term of the Services Agreement , when and to the extend such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company, 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, epidemic, lockouts, strikes, or other labour disputes (whether or not relating to either party’s workforce), or restrains or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
If insurance is required for Services to be performed under the Services Agreement, the Company will only maintain General Commercial Liability coverage as per its own terms. The Customer may elect to purchase, at its own cost, insurance to cover any damage, loss, expense, liability, or cost for which the Company is exempt from liability, and/or excess insurance coverage.
10. ASSIGNABILITY AND SUBCONTRACTING
The Company may at any time assign, transfer, or subcontract any or all of its rights or obligations resulting from the Services Agreement, either partially or in their entirety, without the prior written consent of the Customer. The Customer shall not assign any of its rights or delegate any of its obligations under the Services Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Customer of any of its obligations under the Services Agreement. Except as otherwise provided in the Services Agreement, the Services Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.’
Any failure of the Company to insist, in any one or more instances, upon strict performance of any of the terms of the Services Agreement , or failure or delay in exercising any right or remedy hereunder, shall not operate as a continuing waiver of any of its rights or remedies exercisable under the Services Agreement .
12. CUMULATIVE REMEDIES
Any specific right or remedy provided in the Services Agreement will be cumulative with, and not exclusive of, any and all other rights or remedies that would otherwise be available to such party, whether contained in the Services Agreement or at law. Any exercise by a party to the Services Agreement of any right or remedy will not preclude the later or concurrent exercise by it of any or all other rights or remedies.
13. JOINT AND SEVERAL LIABILITY
If more than one Customer is party to the Services Agreement, each agrees to be jointly and severally liable for all obligations under the Services Agreement.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”), shall be in writing and addressed to the parties at the addresses set forth in the Services Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Services Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
15. GOVERNING LAW AND JURISDICTION
All matters arising out of or related to the Services Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in that Province 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. Any legal suit, action, or proceeding arising out of or relating to the Services Agreement shall be instituted in the courts of the Province of Ontario in each case located in the City of Toronto, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
If any term or provision of the Services Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Services Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
The terms of the Services Agreement , including any Schedule hereto, shall take precedence over any trading conditions, standard terms and conditions, or forms issued by either party in the course of performing services under the Services Agreement , and the Services Agreement shall govern in the event of a conflict. In the event of any conflict between the Services Agreement and any Schedule hereto, the terms of the Services Agreement shall take precedence.
18. SUCCESSORS AND ASSIGNS
Except as otherwise provided in the Services Agreement, the Services Agreement shall be binding upon and insure to the benefit of the parties hereto and their permitted successors and assigns.
The Services Agreement may only be amended or modified in a writing signed by an authorized representative of each party.
Subject to the limitations and other provisions of the Services Agreement, Sections and provisions that, in order to give proper effect to its intent, should survive expiration or termination, shall survive the expiration or earlier termination of the Services Agreement .
21. SIGNATURES AND COUNTERPARTS
The Services Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 18 of the Terms and Conditions, a signed copy of the Services Agreement delivered by facsimile, email, or other electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Services Agreement.