GENERAL TERMS AND CONDITIONS
The environmental consulting services to be rendered, the other work to be conducted and/or the personnel and equipment to be provided (collectively the "Services") by ARK ENVIROTECH INC. ("Ark") at the request of the customer (the "Customer") shall only be offered, rendered or provided according to the following General Terms and Conditions (the "Terms"). By soliciting Ark to carry out the Services, the Customer voluntarily enters into and agrees to the binding effect of the following Terms.
1. INDEPENDENT CONTRACTOR
Ark acts solely as an independent contractor in providing the Services to the Customer and nothing in the provision of such Services shall be interpreted so as to make Ark an agent, servant, or prime contractor of the Customer or any other party.
2. CONDITIONS AT WORK SITE
Responsibility for the complete care, custody and control of the work site rests with the Customer and as such, the Customer recognizes that it has superior knowledge of the work site and the conditions surrounding it, which knowledge shall be provided to Ark to enable Ark to perform the Services safely and efficiently.
3. The Property
In the event that Customer is not the owner or the sole owner of the property on which the work site is located, or the owner or the sole owner of the property in respect of which Ark is to perform the Services, then a request for the Services by the Customer shall constitute a warranty and representation by the Customer to the effect that it is the authorized and operating entity, or a duly authorized agent of each of the other co-owners with full power to represent such co-owners, with respect to all decisions and instructions made regarding provision of the Services by Ark herein.
The Customer shall indemnify and shall protect, defend and hold Ark and its officers, directors and employees harmless from and against all liabilities, losses or damages, claims, demands, causes of action, suits and associated costs and expenses (including legal fees and disbursements on a solicitor and client basis) of every nature and kind whatsoever, without limit, arising from the provision by Ark of Services on property of which Ark is not the owner or the sole owner.
4. DISCLAIMER OF WARRANTIES
ARK MAKES NO WARRANTY, EXPRESS OR IMPLIED, OR GUARANTEE OF RESULTS FROM THE PROVISION OF THE SERVICES. All conditions, representations or warranties, either express or implied, relating to the accuracy, correctness, completeness or fitness for purpose in relation to the performance of the Services, are hereby excluded.
5. INDEMNIFICATION
There are many conditions in and around the work site which are uncertain and unknown to Ark, and not subject to Ark' s control, for which Ark can neither guarantee results nor accept liabilities for property or persons (which liabilities may arise from the performance of the Services or result therefrom), nor make any warranty either expressed or implied with respect to the provision of the Services.
All the Services are therefore supplied by Ark with the understanding that the Customer agrees to protect, defend, and hold harmless, Ark and its officers, directors, employees servants, representatives, insurers and subcontractors, from and against all liabilities, losses or damages, claims, demands, causes of action, suits and associated costs and expenses (including legal fees and disbursements on a solicitor and client basis) of every nature and kind whatsoever, arising out of or in relation to the provision of Services by Ark to the Customer, without limit and without regard to the cause or causes thereof or the negligence of any party, including but not limited to the negligence of Ark or its officers, directors, employees, servants, representatives, insurers and subcontractors on account of:
- (i) loss of or damage to property;
- (ii) personal injury or death;
- (iii) pollution, contamination or degradation; or
- (v) subsurface loss or damage.
6. INCIDENTAL AND CONSEQUENTIAL DAMAGES
The parties agree that, except as provided in paragraphs 3 and 5 hereof, neither party shall be liable to the other for any punitive, incidental, indirect or consequential damages, nor for any loss of profits or business interruptions.
7. ACCESS TO PROPERTY
The Customer shall be solely responsible for and shall arrange for the safe access by Ark to and from the Customer' s property or any other property on which the Customer may request Services from Ark.
8. SAFETY
The Customer shall inform Ark of the Customer' s safety requirements and shall make written safety instructions available at all work sites. The Customer shall be responsible for the conduct of any required emergency drills and for ensuring that adequate means for emergency evacuation are in place pursuant to all applicable health and safety legislation.
9. CONFIDENTIALITY
Data provided to and results obtained by Ark shall be held in strict confidence and shall not be disclosed by Ark to any third party without authorization from the Customer provided that such data or results are not in the public domain or disclosure thereof is not required by law or by legal process.
10. PRICE SCHEDULES AND PAYMENT
The Customer shall pay Ark in accordance with Ark' s applicable price schedules, which can be made available upon request. Prices are subject to change without notice. Terms of payment of charges are NET CASH in Canadian currency within thirty (30) days from the date invoices are rendered. Any amount unpaid at the end of said thirty (30) days is subject to interest at 2% per month. If unpaid amounts are collected through legal proceedings or by a collection agent, the Customer shall pay reasonable costs including solicitor and client fees and disbursements associated with such collection procedures.
11. TAXES
The Customer shall pay or reimburse Ark for any and all taxes, assessments and other levies, of whatever nature or kind (other than income taxes), imposable or imposed by any government or governmental agency arising in connection with the furnishing of the Services by Ark.
12. INSURANCE
The Customer' s indemnity obligation under paragraph 5 herein shall be supported by appropriate general liability insurance furnished by a qualified insurance company and obtained by the Customer at the Customer's cost. If Ark should so request, the Customer shall at its own cost arrange to have Ark added as a named insured to the Customer' s insurance policy.
13. CANCELLATION
The Customer may terminate an order for the Services hereunder at any time prior to completion of the Services, subject to payment for the portion of the Services accrued prior to the cancellation date.
14. ASSIGNMENT
The agreement between Ark and the Customer for the provision of Services by Ark shall not be assignable without the prior written consent of Ark and the Customer.
15. SEVERABILITY
In the event that any provision of these Terms shall be determined to be invalid or unenforceable, such determination shall not, in any way, affect the validity or enforceability of the remaining provisions hereof and the agreement between the parties shall be construed as if such invalid or unenforceable provision had never been contained herein.
16. FORCE MAJEURE
Ark shall not be liable for any delay or non-performance due to any cause beyond Ark' s reasonable control, including but not limited to governmental regulation or delay, landowner interference, strikes or other work stoppage or slow down, weather, floods, war, insurrection, riots, blockade and acts of God ("Force Majeure").
If performance is so delayed or prevented by Force Majeure for more than ninety (90) days, Customer may terminate the agreement between it and Ark by written notice to Ark. Force Majeure shall not act as a bar to recovery for Services incurred prior to such termination and the Customer shall be required to provide payment for such Services.
17. WAIVER
No variation or modification of these Terms, or waiver of any of the Terms hereof shall be deemed valid unless in writing and signed by both parties. Failure to enforce any or all of these Terms in a particular instance or instances shall not constitute a waiver thereof or preclude subsequent enforcement thereof.
18. ENTIRE AGREEMENT
These Terms and the applicable work order or confirmation between Ark and the Customer shall constitute the entire agreement between the parties. There are no other terms, obligations, covenants, representations, statements or conditions applicable to the agreement between the parties.
19. GOVERNING LAW
Notwithstanding that the Services may be performed outside of the Province of Alberta, the parties acknowledge and agree that their agreement shall be governed by the laws of the Province of Alberta and hereby irrevocably attorn to the jurisdiction of the Courts of the Province of Alberta in respect of any matter arising in connection herewith.
