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Services Agreement

This Services Agreement (this "Agreement"), dated as of [DATE] (the "Effective Date"), is entered into by and between Pear Tree Flood Control Services Ltd., a corporation registered and existing under the laws of the Province of Alberta, with registered office address at 1836 - 24th Avenue NW, Calgary, AB, T2M 5C8 ("Service Provider"), and [CUSTOMER NAME], a corporation registered and existing under the laws of the Province of _____________, with registered office address at ____________________ OR individual residing at _______________________.

 

WHEREAS, Service Provider is in the business of providing flood risk mitigation services (the "Services"); and

WHEREAS, Customer desires to engage the Service Provider to conduct building flood risk assessment, and Service Provider desires to accept such engagement. 

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

  1. Services. Service Provider shall provide to Customer the services (the "Services") set forth in Exhibit A. Service Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement; (b) using personnel of required skill, experience, licences, and qualifications; (c) in a timely, workmanlike, diligent, and professional manner; (d) in accordance with recognized industry standards in Service Provider's field; and (e) to the reasonable satisfaction of Customer. Any changes to the scope of Services must be agreed by the parties in a written amendment in accordance with 12.7.

  2. Customer's Obligations. Customer shall (a) provide Service Provider with access to Customer's premises, and other facilities as may reasonably be required by Service Provider for the purposes of performing the Services; (b) respond promptly to any Service Provider request for information or approvals that Service Provider requires to perform the Services.

  3. Fees and Expenses; Payment Terms.

    1. 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 as follows:

      1. Time and Materials. For Services provided on a time and materials basis, Customer shall pay fees (the "Fees") calculated in accordance with Service Provider's [daily/hourly] fee rates set forth in Exhibit B. 

      2. Fixed Price. Where Services are provided for a fixed price, the total Fees shall be the amount set out in Exhibit B.

      3. Expense Reimbursement. Customer shall reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in performing the Services at Service Provider’s actual cost [plus a fifteen percent (15%) markup]. 

    2. Invoicing and Payment. Service Provider shall issue invoices to Customer that shall include a detailed breakdown Services performed. Customer shall pay all amounts due to Service Provider upon receipt within thirty (30) days after Customer's receipt of such invoice, with no right of set-off. If Customer fails to timely pay an invoice, Service Provider may charge interest on unpaid amounts at a rate of 18% per annum from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full.

  4. Drain Usage During Inspection. Customer should ensure that no water or waste is introduced into any plumbing fixtures or drainage systems during the inspection. This includes, but is not limited to, the use of sinks, faucets, toilets, dishwashers, washing machines, and floor drains. The sewer stack will be open for the duration of the inspection; therefore, use of any drains during this time may interfere with the inspection process and will result in the discharge of waste into the basement. Customer shall be solely responsible for any cleaning, remediation, or property damage arising from such use.

  5. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services (collectively, the "Deliverables") shall be owned exclusively by Service Provider. Service Provider hereby grants Customer a licence to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. 

  6. Confidential Information. 

    1. All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; (e) required to be disclosed under applicable federal, provincial, territorial, or municipal law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.

    2. The Receiving Party shall be responsible for any breach of this 6 caused by any of its employees, contractors, agents, or representatives. Each party's obligations under this 6 will survive termination or expiration of this Agreement. 

  7. Representations and Warranties.

    1. Mutual. Each party represents and warrants to the other party that: (a) it is validly existing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation or formation; (b) it has the power and authority to enter into this Agreement, to grant the rights and licences granted hereunder and to perform its obligations hereunder; and (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

    2. Service Provider. Service Provider represents and warrants to Customer that: 

      1. it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and in compliance with all applicable laws, and shall devote adequate resources to meet its obligations under this Agreement; and

      2. the Services and Deliverables shall conform in all material respects with the specifications and will be performed to Customer's reasonable satisfaction.

    3. DISCLAIMER OF WARRANTIES. 

      1. The Services offered by Service Provider adhere to best practices in flood risk mitigation. It is not possible to eliminate all risks of flooding and in certain locations significant flood risks may remain. Service Provider cannot be held liable for any flooding at Customer’s property after the Services have been provided.

      2. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS 7, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT. 

  8. Indemnification. Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("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 and costs, incurred by Indemnified Party (collectively, "Losses"), arising out of or resulting from any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person, or damage to real or tangible personal property resulting from Indemnifying Party's willful, fraudulent, or negligent acts or omissions; or (b) Indemnifying Party's negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Agreement.

  9. LIMITATION OF LIABILITY. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, 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 SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 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 THIS AGREEMENT.

  10. Term and Termination.

    1. Term; Renewal. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services, unless sooner terminated pursuant to this 10.

    2. Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party (the "Defaulting Party"), if the Defaulting Party (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within five (5) days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.

    3. Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason, (a) Service Provider shall: (i) deliver to Customer all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services; (ii) return to Customer all Customer-owned property, equipment, or materials in its possession or control; and (iii) remove any Service Provider-owned property, equipment, or materials located at Customer's locations; and; and (b) each party shall return to the other party or destroy, at the other party's discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating, or based on the other party's Confidential Information and certify in writing that it has done so.

    4. Survival. The rights and obligations of the parties set forth in this 10.4 and 10.3 (Effects of Termination or Expiration), 5 (Intellectual Property), 6 (Confidential Information), 7 (Representations and Warranties), 8 (Indemnification), and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

  11. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the impacted party's ("Impacted Party") reasonable control including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics, pandemics, and other potential disaster(s) or catastrophe(s); (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law, or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary licence or consent; and (k) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.

  12. Miscellaneous.​

    1. Independent Contractors. The parties are independent contractors, and 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 them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.

    2. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other party's trademarks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party. 

    3. Notice. Any notice required or permitted to be given by one party to another (“Notice”) shall be given in writing and either served personally, emailed or sent by prepaid registered mail and in the case of prepaid registered mail, shall be deemed to have been given 3 days following the date upon which it was mailed.  The address for the parties for Notices, shall be:                                                                                                                                    To Service Provider:                                                                              Pear Tree Flood Control Services Ltd.                                                          at: 1836 - 24th Avenue NW, Calgary, AB, T2M 5C8                              with email notice to: floodsafe.ca@gmail.com                                                                                                                                                            To Customer                                                              _____________________ at:                                _____________________(address)                                                           with email notice to: ______________________                                          or to such other address as to which any Party may from time to time notify the others.                                                                                                      

    4. Entire Agreement; Order of Precedence. This Agreement, together with all Schedules and Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule or Exhibit, then the terms of this Agreement shall control unless expressly set forth otherwise in the applicable Schedule or Exhibit.

    5. Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. 

    6. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    7. Amendments and Modifications. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. 

    8. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    9. 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. 

    10. Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the Province of Alberta and the federal laws of Canada applicable therein.

    11. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Alberta, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. 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. 

    12. Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach by a party of 5 (Intellectual Property Rights; Ownership) or 6 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.

    13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

​

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

 

Pear Tree Flood Control Services Ltd.


 

By_____________________

Name: Louis Poirier

Title: President

 

 

[CUSTOMER NAME]


 

By_____________________

Name:

Title:

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