Integration Project Terms & Conditions
1. PROPOSAL VALIDITY
1.1. All pricing quotes are valid for 30 days. Purchase orders issued after this period are subject to product & pricing revisions.
1.2. The remainder of the proposal as stated in this document remains valid in the form submitted here for a period of sixty (60) calendar days from the time and date of submission to the client. After this 60-day period the proposal may need to be reissued in whole or in part at the discretion of ET Group. This remains true even during negotiation.
1.3. This quotation presumes a site visit by ET Group’s design personnel to assess the suitability of the site for the work quoted. If there has been no opportunity for a pre-quote site visit, then a site assessment will be performed after this quotation has been accepted and prior to work beginning. In which case, this quotation is subject to specification and pricing adjustments based on the findings of said site assessment.
1.4. This agreement becomes effective upon the date of receipt by ET Group of an authorized purchase order issued by Client (the “Effective Date”).
2. SCOPE OF SERVICES
ET Group, a division of Pistil Enterprises Ltd., located at 3-130 North Queen Street, Toronto, Ontario, herein referred to as ET Group, shall provide the Services described in the Agreement to [Name of Client company] a company located at [Address], herein referred to as Client, in exchange for fees (“the Fees”), as described in the Agreement.
2.1. Definitions
2.1.1. “Agreement” means the accompanying quote or proposal document together with these terms and conditions, as amended by any change orders.
2.1.2. “Equipment” means all devices procured and supplied by ET Group as defined on the bill of materials that forms part of the accompanying proposal.
2.1.3. “OFE” or “Owner-Furnished Equipment” means any devices supplied by the Client for integration into the System by ET Group.
2.1.4. “Design Documents” means drawings, bills of materials, project overviews, and facilities scopes of work, that together completely describe the System such that a competent person could complete installation of the System according to the Client’s use cases and good industry practices.
2.1.5. ”System” means the integration of the Equipment, OFE, miscellaneous materials required to fully complete the installation of the Equipment and OFE, as well as those Programs required to operate the Equipment and OFE, as installed and commissioned by ET Group to fulfil the Scope of Work described on the accompanying proposal.
2.1.6. “Loaner Equipment” means devices that are provided on a temporary basis on loan to Client as a result of a delay in the receipt of Equipment or as a result of Equipment found to be defective or damaged at the time of delivery to Client. Loaner Equipment may not be the same make and model as the Equipment it replaces and may have seen previous service, so minor scuffs and other cosmetic defects may be present. Loaner Equipment remains the property of ET Group at all times.
2.1.7. “Installation Site” means the Client’s office or workplace at which the System is to be installed.
2.1.8. “Programs” means software that is developed by ET Group to fulfil specific Client use cases in the operation of the System. Programs may consist of any or all of: graphical user interfaces, configuration files and executable code. Software or firmware that is created by Equipment manufacturers or purchased from third parties to enable specific functionality is excluded and in such cases all rights remain with the manufacturer or developer of such software or firmware.
2.1.9. “Substantial Completion” means a project milestone that occurs when either (i) the System becomes available for use by Client; or (ii) ET Group has submitted a completed service test record that demonstrates functionality of the System in accordance with the Agreement; whichever occurs earliest.
2.1.10. “As-Built Drawings” means pdf copies of revised CAD drawings of the System as it was installed.
2.2. Change Orders
The Client, from time to time, and without invalidating the Agreement, may order changes in the Scope of Work (as defined in ET Group’s proposal and accepted by Client’s purchase order) or System by altering, adding to or deducting from the System. The Client or its agents shall order said changes to ET Group by issue of written addenda (Change Order) whereby ET Group upon receipt of the addenda will supply to the Client an accurate compensation amount for said changes, including applicable cancellation fees. In the event of such a change, ET Group’s compensation shall be adjusted to reflect the change requested. ET Group shall not commence work on any change until either (i) ET Group and Client have agreed in writing to the scope and amount of the adjustment resulting from the change, or (ii) the Client has issued an order for the change acknowledging that there is a dispute regarding the compensation adjustment relating to the change. Any written addenda issued becomes part of the Agreement.
If, in order to expedite the Client’s needs, ET Group agrees to proceed with a change in the System or Scope of Work prior to receiving Client’s purchase order, ET Group reserves the right to obtain compensation for such changes.
2.3. ET Group may use subcontractors to deliver the Services. ET Group shall require that all its personnel and subcontractors comply with all Client policies and rules when on Client premises and shall promptly remove those who do not comply.
3. CLIENT’S OBLIGATIONS
3.1. Client, at its expense, agrees to: (i) prepare the site including providing all electrical and data services required for effective operation of the System. In the event that the scope of the Agreement includes installation design, then such preparation shall conform to the design drawings and other documentation provided by ET Group; (ii) provide unobstructed access for delivery and installation of the System at agreed upon dates and times; (iii) provide a work environment that is safe, secure, free of dust, climate-controlled and otherwise suitable for the installation of electronic equipment; (iv) provide reasonable assistance to facilitate installation of the System at the Installation Site by facilitating coordination with other trades and scheduling of work with site and other trades; and (v) enable connectivity to Client’s AV network as defined in the System design documents, including configuration of specific subnets, providing ranges of allowable IP addresses and identifying switch ports, plus providing any additional network configuration or information necessary to allow the System to operate on Client’s AV network and communicate within itself and other network devices or equipment as necessary.
3.2. In the event that Client has not adequately prepared the Installation Site in accordance with 3.1, such that ET Group is unreasonably delayed in shipping the Equipment to the Installation Site, ET Group reserves the right to charge reasonable storage fees to Client for the duration of the delay.
3.3. The Client warrants that Owner-Furnished Equipment is provided in good working order.
3.4. Should the Client or their representative request labour at the job site and the job site conditions are not ready or suitable for such labour, causing a loss of ET Group’s labour hours, the client shall be responsible for a minimum of four hours per worker per event.
3.5. Client shall select personnel suitable to operate, maintain and use the System and confirm that such personnel demonstrate the competence necessary to manage, maintain and operate the System. ET Group shall, upon Client’s request, provide Client’s personnel with training and instruction concerning the operation, maintenance and use of the System by conducting a training session at a mutually convenient time at Client’s facility. ET Group shall provide training of the System not exceeding four (4) hours in length, or mutually agreed by Client and ET Group.
3.6. Client shall inform ET Group, within seven (7) calendar days of Substantial Completion, of any aspects of the System not conforming to the scope specified in the Agreement. Thereafter, Client is assumed to have accepted the System as supplied and installed.
4. FEES AND EXPENSES
4.1. In consideration of the Services provided, Client shall pay to ET Group the amounts as set out in the Agreement together with such Sales Taxes as may be applicable to such payment. ET Group agrees to obtain and clearly reference the applicable GST/HST registration number on all invoices provided to Client. Unless otherwise specified, all dollar amounts set forth in this agreement refer to Canadian currency.
4.2. Client will reimburse ET Group for reasonable out-of-pocket expenses incurred, in the course of providing the Services, with no mark-up applied. Reimbursement will be conditional upon ET Group providing an itemized account and receipts.
4.3. Client agrees to pay to ET Group according to the payment terms set forth in the quotation or proposal for the System. Unless otherwise set forth in the Agreement the terms will be net 30 days from the invoice date on all quoted amounts plus applicable taxes.
4.4. Client acknowledges that the monetary obligations of Client to ET Group hereunder constitute a commercial account. ET Group reserves the right to charge and collect interest calculated at 1.5% per month on all overdue amounts payable by Client to ET Group. If ET Group employs any legal process to recover any amount due and payable from Client hereunder, Client shall pay all costs of collection, court and other fees.
5. CONDUCT & CONFIDENTIALITY
In the event any ET Group personnel perform Services onsite at Client’s premises, ET Group personnel will abide by any Client policies, standards and other similar guidelines, or codes of conduct provided to ET Group in advance. Client will be entitled to bar entry to its premises to any ET Group personnel who behave in a manner disruptive to Client’s business, and in such event, ET Group will dispatch replacement personnel at the earliest convenience to complete the performance of the Services.
5.1. Return of Client Property.
Upon the earlier of the date of termination and a written request by the Disclosing Party, the Receiving Party shall, in respect of all copies of Confidential Information in the Receiving Party’s possession or control related to the Services, including all work in progress: (i) remove all Confidential Information in electronic form from its electronic databases and files, (ii) return it to the Disclosing Party; or (iii) alternatively, if so, instructed by the Disclosing Party, destroy it and confirm to the Disclosing Party in writing that it has done this.
Notwithstanding the foregoing, the Receiving Party (i) may retain copies of the Confidential Information to the extent required to be kept for compliance with any internal document retention or corporate governance policies or practices, and (ii) will not be required to purge any electronic documents in the Receiving Party’s electronic archive system.
5.2. Intellectual Property.
ET Group acknowledges that ET Group will perform the Services, and that intellectual property rights, including but not necessarily limited to trade secrets, moral rights, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design and trade name (“IP Rights”), may exist in the Services and the work arising therefrom. ET Group agrees that such works will not infringe the IP Rights of others. ET Group agrees that anything incorporated into the works which is owned by or subject to the IP Rights of another will be used by ET Group only with the necessary permission.
ET Group agrees not to disclose, directly or indirectly, to any other person the details of the Services, except as may be necessary to carry out the Services.
5.3. Reservation of Title
This Agreement does not affect any transfer of title or copyright of the Programs or any materials furnished or produced in connection therewith, including drawings, diagrams, specifications, input formats, source code, and user manuals. The Programs are provided, and are authorized to be installed, executed, and used only in machine-readable, object code form. Client’s rights in the Programs pursuant to the sublicense included in this Agreement are expressly limited to the use of the Programs by Client at the Installation Site in connection with the System.
5.4. Restrictions on Use of Programs Generally
Neither the Programs and source codes nor any materials provided to Client in connection with the Programs may be copied, reprinted, transcribed, or reproduced, in whole or in part, without the prior written consent of ET Group. Client shall not in any way modify or enhance the Programs, or any materials supplied or produced in connection therewith, without the prior written consent of ET Group.
5.5. Duration of Duties and Return of Programs
The duties and obligations of Client hereunder shall remain in full force and effect for so long as Client continues to control, possess, or use the Programs and source codes. Client shall promptly return the Programs and source codes, together with all materials furnished or produced in connection therewith, upon (i) termination for any reason of this Agreement or Client’s license of the Programs or (ii) abandonment or other termination of Client’s control, possession, or use of the Programs.
5.6. Confidentiality
5.6.1. “Confidential Information” means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether before or after the date of this Agreement. Confidential Information shall not include, in the hands of Client, the work product of the Services provided by ET Group.
5.6.2. Confidential Information will be maintained under secure conditions by a Receiving Party, using reasonable security measures and in any event not less than the same security procedures used by the Receiving Party for the protection of its own Confidential Information of a similar kind.
5.6.3. Each party agrees, for the term of this Agreement and for two years after its expiration or termination of this agreement and any extensions thereto, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information, not to release the Confidential Information except to employees requiring the Confidential Information in the performance of their duties and who are made aware of and who are bound by obligations no less onerous than the confidentiality obligations set out herein or in any SOW, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. It is understood and agreed, that ET Group may use Client public branding and public information, as well as non-confidential information related to a project, for marketing purposes and expressions.
5.6.4. If a Receiving Party becomes aware of any actual or suspected breach of Confidentiality, the Receiving Party will immediately notify the Disclosing Party in writing and provide the Disclosing Party with such information relating to such breach or alleged breach as the Disclosing Party may request and will respond to such event as directed by the Disclosing Party acting reasonably.
5.6.5. The Receiving Party may disclose Confidential Information: (i) to any of its officers, employees, agents and contractors if disclosure is necessary for the purposes of providing the Services under this Agreement, in which case it shall ensure that the disclosee complies with the Receiving Party’s obligations of confidentiality under this Agreement as if it was the Receiving Party; or (ii) if required to do so by law or by a competent regulatory authority, provided that to the extent permitted by law it gives notice to the Disclosing Party of the required disclosure as soon as practicable, but only if such disclosure is to the minimum extent required to satisfy such obligation.
5.6.6. Section 5.3.3 does not apply to Confidential Information which: (i) is at the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party’s breach of this Agreement; or (ii) can be shown to have been independently developed by the other party by employees or agents without access to the party’s Confidential Information; or (iii) can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by or in the possession of the Receiving Party before disclosure by the Disclosing Party to the Receiving Party or subsequently to have been disclosed to the Receiving Party by a source other than the Disclosing Party without breach of this Agreement or other commitments.
5.6.7. The parties’ obligations of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with such Confidential Information, provided that such party shall maintain the confidentiality of the Confidential Information as provided herein. The term “residuals” means information in non-tangible form, which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents.
5.6.8. It is understood that each of such terms and conditions is necessary to preserve the confidentiality of the Information provided to the Receiving Party pursuant to this Agreement and that a breach of any of the terms and conditions hereof would result in irreparable damage to the Disclosing Party and/or its direct and indirect shareholders in an amount now impossible to calculate. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party and that the Disclosing Party shall be entitled to specific performance as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the Receiving Party’s breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. In addition, the Receiving Party agrees to waive any requirement for the securing or posting of any bond in connection with the foregoing remedies.
This section 5.6 shall survive the termination of the Agreement.
6. LIMITATION OF LIABILITY
6.1. ET Group will defend, indemnify and hold harmless Client and its directors, officers, managers, members, employees and agents, from and against any loss, cost, expense (including, reasonable attorney fees and expenses) or other liability arising from any third party actions, suits, claims, demands, judgements or similar proceedings or any damages, assessments or penalties incurred to the extent based on or arising from (as applicable):
(a) the Services, or any materials provided in connection with the Services by ET Group, infringing or misappropriating the IP Rights of any third party;
(b) ET Group’s breach of its obligations under this Agreement;
(c) ET Group’s gross negligence or wilful misconduct; (iv) the failure of ET Group to exercise reasonable care, skill and/or diligence in the performance or rendering of the Services; or (v) withholding taxes Client is required to deduct or withhold.
6.2. ET Group’s indemnification obligations above shall be conditioned upon: (i) Client providing ET Group with prompt written notice of the existence of any such claim of infringement or misappropriation, provided, however, that failure to provide such notice shall not relieve ET Group from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) in the case of any third-party claim, ET Group having sole control and authority over the defence or settlement of any such action with Counsel reasonably acceptable to Client; and (iii) Client cooperating fully with ET Group, at ET Group’s sole cost and expense, in the defence of any such action. ET Group shall not accept any settlement without Client’s prior written consent which: (i) imposes an obligation on Client (other than the payment of monetary damages subject to indemnification by ET Group hereunder); (ii) requires Client to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Client without Client’s prior written consent, which consent may be unreasonably withheld or delayed. Client may participate in the defence of any such action through its own counsel at its own expense.
6.3. ET Group does not assume any liability for actual, consequential or incidental damages incurred or suffered by Client directly or indirectly, or for economic loss, including, but not limited to inconvenience, loss of profits, loss of business revenue, loss of time, loss of equipment use, or any other economic loss of any kind whatsoever, even if ET Group has been advised of the possibility thereof.
6.4. Force Majeure
In the event that either party hereto is delayed or hindered in the performance of any act required by this Agreement by reason of strike, lock-outs, labour troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, natural disaster, riots, sabotage, terrorist act, insurrection, war, pandemic, act of God, or other reasons of a like nature beyond the reasonable control of such party (a “Force Majeure Event”), then the performance of such act shall be excused for the period of the delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay, up to a maximum of three (3) months, provided that such party (i) immediately notifies the other party of the circumstances creating the failure or delay; (ii) provides sufficient documentation to establish (to the reasonable satisfaction of the other party) the impact of such party’s failure or delay; and (iii) uses commercially reasonable efforts to re-commence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans, implementation of a disaster recovery plan or other means. Should a Force Majeure Event prevent performance hereunder for more than three (3) consecutive months, any party may terminate this Agreement effective immediately upon written notice to the other party.
6.5. Risk of Loss
Client shall bear the entire risk of loss or damage to any Equipment and Program after its delivery to Client site.
7. INSURANCE
7.1. ET Group shall maintain insurance of the following types and limits of liability and shall, on request, provide certificate(s) of insurance showing Client as additional named insured:
(a) Workers Compensation, which shall apply to all persons employed by ET Group.
(b) Comprehensive General Liability, with a combined single limit of liability of $2,000,000 for bodily injury and property damage liability of each occurrence.
(c) Business Automobile Liability, covering all owned, non-owned and hired automobiles with a combined single limit of liability of $5,000,000 for bodily injury and property damage for each accident.
8. TERM AND TERMINATION
Either party may terminate this Agreement at any time without notice if:
(a) the other party fails to perform or breaches any material term or condition hereof and does not cure such failure or breach within thirty (30) days after receipt of written notice from the non-breaching party describing the breach in reasonable detail; or
(b) either party becomes insolvent or subject to proceedings under any insolvency or bankruptcy law receivership, dissolution, or liquidation or makes an assignment for the benefit of its creditors, a proposal, or another arrangement with its creditors under such a law.
8.2. In the event of any termination hereunder,
(a) Client’s sole responsibility with respect to Fees shall be to pay those Fees earned or incurred through the date of termination, as well as any related cancellation fees, and
(b) ET Group will deliver all unfinished work product to Client and will use reasonable efforts to facilitate the transition of the assignment to Client or another ET Group designated by Client as well as returning all pre-paid fees on a pro-rata basis from the effective date of termination for incomplete or pending work.
8.3. Upon termination of the Term and this Agreement, the provisions hereof shall terminate and be of no further force and effect with the exception of (i) any amounts owing pursuant to Section 7.2, (ii) liabilities, claims or causes of action arising in respect of matters which occurred on or prior to the date of termination and (iii) any other obligation which by its nature is intended to survive termination of this Agreement, which provisions shall survive the termination of this Agreement and remain binding on the parties in accordance with their terms.
8.4. If ET Group is delayed at any time in the progress of installing the System by any act or neglect of the Client that is not declared as Force Majeure, the time for completion shall be extended at a minimum by the time that completion of the System is delayed or as otherwise agreed by ET Group and Client.
8.5. Client agrees to pay a minimum 25% re-stocking charge for cancellation of orders for Equipment, either in part or in whole, submitted prior to installation. Returned Equipment must be complete with all parts and in original packaging. No Equipment may be returned after installation. Custom orders are not refundable and are binding in their entirety.
9. REPRESENTATIONS AND WARRANTIES
ET Group represents and warrants that
(a) the Services will be provided in a competent, efficient, professional, timely and safe manner and at all times in compliance with: (i) applicable law; (ii) Client policies, standards and other similar guidelines, or codes of conduct provided to ET Group in advance; and (iii) the highest applicable industry standards.
(b) the Services and any materials provided by ET Group in connection with the Services do not and will not infringe any IP Rights (as defined herein) of any third party;
(c) it will devote commercially reasonable efforts, knowledge, skill and energy to the performance of the Services; (ii) the Services and any deliverables will conform with any applicable documentation or specifications and will not contain any malicious code (e.g., viruses, Trojan horse, worm, time bomb, or backdoor) or result in malicious code being loaded onto Client’s systems; and
(d) it has the necessary qualifications, licenses and skills to perform the Services in accordance with this Agreement.
10. INITIAL WARRANTY
10.1. ET Group warrants the System and Equipment against defects in materials and workmanship for 90 days after Substantial Completion, excepting Owner Furnished Equipment.
10.2. ET Group shall bear no responsibility or liability for correcting, curing, or otherwise remedying any nonconformity or defect in the Equipment or the System if: (i) the Equipment is improperly installed by others; (ii) the System has not been not maintained and operated under normal conditions by qualified personnel; (iii) Client has added to the System spare or replacement parts other than those purchased under this Agreement; (iv) the System including programs and codes has been altered, abused, misused, or taken apart; (v) the defect is a result of power failures, spikes or brown outs, including those caused by lightning; (vi) interference from external sources, whether radio-frequency interference or other forms of interference, degrades the function of the System; (vii) damage due to fire, flood, tornado, earthquake or other acts of God; (viii) failures or faults of the Equipment caused by Client’s operational decisions, adjustment or alterations, failures, deficiencies or defective operation in structural, mechanical, electrical, network or plumbing systems, including temperatures, humidity or dust levels outside manufacturer specifications; (ix) failure of the Equipment caused by abuse, misuse, or negligence by the Client or its agents.
11. RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors and nothing in this Agreement shall be construed to make the parties hereto partners, joint ventures, employees or agents of each other, nor shall either party so hold itself out. Neither party shall make any representation or commitments on behalf of the other party nor shall any party be bound by any such representation or commitment unless previously consented to in writing by the non-committing party. Nothing contained in this Agreement is intended to create, nor shall be construed as creating, an employment relationship between ET Group and Client. As an independent contractor, ET Group shall not be entitled to any employment related benefits.
12. SEVERABILITY.
In the event that any covenant, provision or restriction contained in this Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it shall not affect or impair the validity of any other covenants, provisions or restrictions contained herein, nor shall it affect the validity or enforceability of such provisions in any other jurisdiction or in regard to other circumstances. Any covenants, provisions or restrictions found to be void or unenforceable are declared to be separate and distinct, and the remaining covenants, provisions and restrictions shall remain in full force and effect.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to all the matters herein and supersedes any and all other representations, understandings, negotiations and previous agreements, written or oral, express or implied. The parties do not rely upon or regard as being material any representations or other agreements not specifically incorporated into and made part of this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
15. CHOICE OF LANGUAGE
The parties hereby acknowledge that they have expressly required this Agreement to be drawn up in the English language only. Les parties reconnaissent avoir expressement demande que la presente convention soit redigee en langue anglaise seulement.