General Terms and Conditions
Or, “GTCs” For Short…
1) Definitions. In these GTCs, the following terms have the following meanings: “Affiliate” means, with respect to any entity, any entity controlling, controlled by or under common control with such entity; “Agreement” means these GTCs and the Work Order, collectively; “Applicable Law” means all applicable governmental laws, statutes, orders, rules and regulations, and judgments, whether international, federal, provincial or municipal; “Client” means the Party to this Agreement other than Condo Savvy; “Condo Savvy” means Condo Savvy Inc.; “Party” means a party to this Agreement; “Purchase Price” means the price actually paid by the Client for the Services, excluding taxes; “Services” means the services described in the Work Order; and “Work Order” means a written work order signed by Condo Savvy.
2) Conflicts. In the event that there is any apparent conflict in the provisions of this Agreement, the provisions shall be interpreted, to the extent possible, as if they do not conflict. In the event such an interpretation is not possible, the provisions of the GTCs shall supersede the provisions of the Work Order to the extent of the conflict.
3) Acceptance and Entirety. This Agreement contains the complete agreement between the Parties with respect to the Services, and supersedes any prior agreements, understandings or representations with respect to the subject matter herein. Any change to the Agreement shall only be effective if made in writing between the Parties. No representations by or oral agreement with any representative of Condo Savvy, either before or after the execution of this Agreement, shall affect or modify any of the Parties’ respective rights or obligations hereunder. The Client hereby waives and acknowledges as null and void any other terms and conditions pertaining to the provision of the Services, whether contained in any documentation provided by, or on behalf of, the Client or otherwise and whether signed by Condo Savvy.
4) Status. Condo Savvy is an independent contractor and is not a partner, agent, employee, trustee, fiduciary or joint venturer of the Client.
5) Price, Payment and Taxes. All fees, prices, and other charges are as specified in the Work Order. The Client will pay all invoiced amounts within thirty (30) days of its receipt of the applicable invoice, and interest of 1.5% per month, compounded monthly, shall be payable on all amounts not paid within such period. The Client shall pay to Condo any sales taxes or other ad valorem taxes applicable to the Services, as required by Applicable Law.
6) Work Standard. The Services shall be performed with due diligence and care, in accordance with Applicable Law and customarily accepted industry practice. Except as may be explicitly set forth in the GTCs, and to the extent permitted by Applicable Law, Condo Savvy hereby disclaims any and all other warranties, whether express or implied or imposed by Applicable Law.
7) Provision of and Reliance on Information. The Client agrees to fully cooperate with Condo Savvy with respect to the provision of all available information pertinent to the Services. The Client acknowledges that the Services are based solely on the information provided or otherwise available to Condo Savvy, and Condo Savvy is relying upon the accuracy and completeness of all such information. Condo Savvy shall have no liability to the Client for any penalties, fines, costs, expenses, losses, claims, liabilities or damages arising from any such inaccuracy or incompleteness. If the Client becomes aware that any information provided to or otherwise available Condo Savvy is inaccurate or incomplete, the Client shall promptly notify Condo Savvy thereof.
8) Intellectual Property.
8a) Unless otherwise agreed by the Parties, any patents, methods, ideas, concepts, know-how, copyrights, trademarks, trade secrets, or other intellectual property rights (collectively, “IP”) developed by Condo Savvy during and in the course of performing the Services will be the exclusive property of Condo Savvy. Further, any IP previously developed or owned by Condo Savvy prior to the date of this Agreement and used in connection with the Services will remain Condo Savvy’s exclusive property, whether or not specifically adapted for use by Company. Condo Savvy hereby grants to Company a limited, non-exclusive, non-transferable, royalty-free licence in and to any such IP included in any deliverables relating to the Services. All IP of either Party is Confidential Information of that Party.
8b) Subject to the rest of this Subsection, title to all data and documents generated in connection with the Services shall not vest in the Client until full payment of all monies owed to Condo Savvy in connection with the Services. Client covenants that for period of 15 months after completion of the Services it shall not disclose any data or documents generated in connection with the Services to any person or legal entity that: a) owns property in the building to which the Services relate; or b) may, to Client’s knowledge, acquire a property in the building to which the Services relate. Condo Savvy shall be entitled to keep copies of all such data and documents, and, notwithstanding Section 12 (Confidential Information), to use and disclose them as it sees fit.
9) Force Majeure. Neither Party shall be liable for any damage or delay (excluding delay in payment of monies owed) caused by or resulting from conditions or causes of any kind beyond the reasonable control of such Party and which such Party could not have prevented through the exercise of reasonable diligence, and any such damage or delay (excluding delay in payment of monies owed) shall not be deemed to be a breach of or failure to perform this Agreement but shall suspend the obligations affected, and the Party affected shall be allowed a reasonable period of time to fulfill such obligations having regard to the applicable circumstances. For clarity, lack of finances shall not be regarded as a condition or cause beyond the reasonable control of a Party.
10) Limits of Liability and Indemnification.
10a) Notwithstanding anything to the contrary in this Agreement or Applicable Laws, Condo Savvy and its employees, directors and shareholders shall not be liable to the Client or any of its Affiliates or other service providers or their respective directors, officers, agents, consultants, shareholders, employees or representatives for, and the Client, on behalf of itself and the foregoing entities, hereby releases Condo Savvy and its employees, directors and shareholders with respect to, any lost profits , lost revenues, loss of goodwill, loss of use, loss of bargain, cost of capital, lost production, lost business opportunities and the cost of obtaining or maintaining financing (in all case whether direct, indirect or consequential) and such other special, punitive, aggravated, indirect or consequential damages, costs, losses or expenses of whatever nature which arise out of or relate to their negligence or Condo Savvy’s breach or performance of or failure to perform this Agreement, whether as penalties, fines, reimbursements, damages or otherwise, and whether pursuant to any indemnity, negligence, breach of contract or any other claim or cause of action, whether at law or in equity.
10b) Notwithstanding anything else in this Agreement or Applicable Laws, Condo Savvy and its employees, directors and shareholders will have absolutely no obligation or liability, whether to pay money or otherwise, to Client or any of its Affiliates or other service providers or their respective directors, officers, agents, consultants, shareholders, employees or representatives, that is in excess of the Purchase Price, whether as penalties, fines, costs, expenses, losses, claims, liabilities, damages or otherwise, and whether pursuant to any indemnity, negligence, breach of contract or any other claim or cause of action, whether at law or in equity.
10c) The Client expressly agrees that Condo Savvy’s employees, directors and shareholders shall have no personal liability to the Client in respect of this Agreement or the Services, whether pursuant to negligence, breach of contract or any other claim or cause of action, whether at law or in equity. The Client expressly agrees that it will bring no legal proceedings against any of Condo Savvy’s employees, directors or shareholders in their personal capacity.
10d) The Client shall fully indemnify and hold harmless Condo Savvy and its employees, directors and shareholders from all claims made against, and all resulting liabilities suffered or damages incurred by, Condo Savvy and its employees, directors and shareholders to the extent relating to the use of the results of the Services by any person other than the Client, or relating to the use of such results by the Client for any purpose not explicitly stated in the Work Order.
10e) Condo Savvy does not provide, and the Services do not constitute, legal advice, or any sort of recommendation or advice regarding the purchase, sale, lease, rental, investment in or development of property. The Client is advised to obtain legal advice before taking any action based on the Services.
11) Assignment. Neither Party shall assign any portion of this Agreement without the prior written consent of the other Party.
12) Confidential Information. Each Party acknowledges that it may be exposed to information concerning the other Party and its operations that is confidential or proprietary in nature, including information relating to the other Party’s finances, business operations, plans, and technologies. Each Party covenants on its behalf and for its employees, subcontractors and agents, that it shall maintain such information in strict confidence, shall not release or grant access to any such information to any third party except to its subcontractors and agents on a need to know basis, and shall only use such information to the extent required to fulfill its obligations under this Agreement. A Party shall be liable for any breach of this Section by it and any of its subcontractor and agents and its and their respective officers, directors, employees and agents. The restrictions on the use and disclosure of the confidential information shall not apply to information which: (a) was known to the Party before receipt of same from the other Party; or (b) becomes publicly known other than through a breach of this Agreement; or (c) is disclosed pursuant to the requirements of Applicable Law, but only to the extent required to comply with Applicable Law.
13) Privacy. If either Party collects, uses, and/or discloses personal information of any employee, officer, director, agent or contractor of the other Party, such first Party agrees to do so only to the extent required for reasonable business purposes, and only to the extent permitted by and in accordance with Applicable Law.
14) Termination. If either Party breaches any of its obligations under the Agreement or Applicable Law and such violation is not cured within 5 days of such Party’s receipt of notice of such violation, then the other Party may, without prejudice to any other right or remedy it may have, terminate this Agreement by written notice to such first Party, whereupon the terminating Party shall be relieved of all further obligations hereunder except: (i) the Client’s obligation to pay all monies owed to Condo Savvy for Services performed to the date of termination; and (ii) such terminating Party’s obligations pursuant to Sections 8 (Intellectual Property), 12 (Confidential Information) and 13 (Privacy) of these GTCs. Subject to the foregoing sentence, all provisions of this Agreement that, by their nature, are intended to survive the expiry or termination of this Agreement shall do so.
15) Governing Law. This Agreement shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein (without regard to conflicts of laws principles) and the Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of Alberta and the courts of appeal therefrom.
16) Waiver and Severability. No waiver by either Party of any breach of this Agreement shall be binding on that Party unless the same is expressed in writing, and any waiver so given shall extend only to the particular breach so waived and shall not limit or affect any rights with respect to any other or future breach. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof.