Tomlinson Environmental Services: General Terms and Conditions
THIS SERVICE AGREEMENT (the “Agreement”) is entered into as of the date of execution (the “Effective Date”), by and between Tomlinson Group of Companies (the “Company”) and the business entity or individual(s) (the “Customer”) specified as such in the Agreement. The Customer agrees to engage the Company to provide the Customer with the services outlined in the Agreement (the “Services”), which shall be deemed to include the related supply of products and equipment by the Company (the “Equipment”). These General Terms and Conditions (the “General Conditions”) are to be read in conjunction with the Supplemental Conditions applicable to the Services, which collectively form part of the Agreement between the Company and the Customer (individually the “Party” and collectively the “Parties” to this Agreement). The Parties hereby agree to the following:
- TERM OF AGREEMENT
1.1 The term of the Agreement (the “Term”) will begin on the Effective Date of the Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in the Agreement. The Term may be extended with the written consent of both Parties.
- NOTICES
2.1. A notice in writing (the “Notice”) by any Party will be addressed to the recipients at the addresses set forth in the Agreement.
2.2. The delivery of a Notice will be by hand, by courier, by prepaid first class mail, or by other form of electronic communication during the transmission of which no indication of failure of receipt is communicated to the sender.
2.3. A Notice delivered by one Party in accordance with this Agreement will be deemed to have been received by the other Party on the date of delivery if delivered by hand or courier, or if sent by mail it will be deemed to have been received five (5) days after the date on which it was mailed.
2.4. A Notice sent by any form of electronic communication will be deemed to have been received on the date of its transmission.
- PRICE
3.1 The quoted price (the “Quotation”) shall remain valid for a period of thirty (30) days from the date of issue, after which the Company shall reserve the right to amend or withdraw the Quotation. Upon acceptance and execution, the Quotation shall form the Agreement price (the “Price”), expressed in Canadian (CAD) funds.
3.2. The Customer shall pay the Company the charges and any increases provided for herein, which charges and increases shall be effective during the term of the Agreement. The Company may in its discretion increase the charges set forth herein at any time or from time to time by an amount equal to an increase as may be proposed by the Company and agreed to by the Customer, provided that if the Customer does not object to such a proposed increase within fifteen (15) days of Notice thereof, this Agreement shall be deemed to be amended to reflect the increase in charges. In the event that the Customer does object to such a proposed increase within the fifteen (15) day period, this Agreement shall continue without such proposed charge increase, but the Company may at any time thereafter terminate this Agreement by giving ten (10) days prior Notice to the Customer.
3.3. All applicable taxes are extra.
- PAYMENT TERMS
4.1. The Customer shall pay all applicable charges within thirty (30) days of the invoice date.
4.2. Interest on unpaid balances which are more than sixty (60) days overdue shall be charged at a rate of 1.5% per month for an effective rate of 19.56% per annum.
4.3. The Customer has the option to pay in advance to 100 CitiGate Drive, Ottawa, ON K2J 6K7.
- CHANGES
5.1. The Company, without invalidating the Agreement, may make changes to the Services provided under this Agreement, consisting of additions, deletions or other revisions as may be required in consultation with the Customer. When the Company and the Customer agree to the proposed changes, such agreement shall be effective immediately and shall be formally recorded and duly executed in a form acceptable to the Company (the “Change Order”). The Change Order shall present a description of the changes, a method of adjustment or an amount of adjustment for the Price, if any, and the adjustment in the Term, if any, for the proposed change in the Services.
- TITLE
6.1. Title to the Equipment and all additions, repairs, replacements or modifications thereto shall be held in the name of the Company, and the Customer shall have no right, title, or interest in the Equipment or any additions, repairs, replacements, or modifications thereto except as expressly set forth in the Agreement.
- ACCESSIBILITY
7.1. The Customer agrees to provide the Company free, clear, and safe access to the Equipment and the property on which the Equipment is stored at all times, without prior Notice given to the Customer.
7.2. The Customer shall immediately notify the Company of any changes that may impact the Company’s access to the Equipment, including but not limited to combination lock codes affixed to access gates.
- INDEMNIFICATION
8.1. The Customer shall indemnify and hold harmless the Company from and against all claims, losses, expenses, penalties, damages, and condemnations which the Company may suffer or may be required to pay arising out of:
8.1.1. The Customer’s negligent acts or omissions.
8.1.2. The Customer’s failure to fulfill the terms and conditions of the Agreement.
8.1.3. Personal injuries, including death, or property damage suffered by any person by reason of the operation, handling, transportation, or use of the Equipment by or whilst in the possession of the Customer or the Customer’s agents or employees.
8.1.4. Damages to the Equipment by the Customer during the Term of the Agreement, including but not limited to such damages resulting from improper handling, misuse, negligence, theft, vandalism, fire, and contaminated or hazardous materials.
8.2. If the Equipment is damaged beyond repair, misplaced, or stolen and deemed by the Company as a complete loss, the Customer will assume full responsibility to pay the Company the costs associated with full replacement of the Equipment.
8.3. The Customer agrees to pay the Company’s legal costs and other expenses incurred to enforce this Agreement.
- TERMINATION
9.1. f the Customer is adjudged bankrupt, or makes a general assignment for the benefit of creditors because of the Customer’s insolvency, or if a receiver is appointed because of the Customer’s insolvency, the Company may, without prejudice to any other right or remedy the Company may have, terminate the Customer’s right to continue with the Services, by giving the Customer or receiver or trustee in bankruptcy Notice to that effect.
9.2. If the Customer neglects to properly utilize the Equipment for its intended purpose or otherwise is in breach of any of its obligations under the Agreement, the Company may give the Customer Notice that the Customer is in default of the Customer’s obligations under the Agreement and instruct the Customer to correct the default in the three (3) days immediately following the receipt of such Notice. If the Customer fails to correct the default in the time specified, without prejudice to any other right or remedy the Company may have, the Company may by giving Notice either correct such default and charge the Customer the cost thereof or forthwith terminate the Agreement.
9.3. If the Customer should no longer require the Services for the sole reasons of either substantial cessation of the Customer’s business, or relocation outside of any area in which the Company provides similar services, and provided that the Customer supplies evidence thereof acceptable to the Company and immediately pays all amounts then due to the Company, the Customer may terminate this Agreement by ninety (90) days prior Notice given to the Company. In the event that the Customer should otherwise cancel the Services or terminate this Agreement during the Term, the Customer shall, without prejudice to the Company’s other rights at law, pay to the Company as liquidated damages an amount, inclusive of applicable taxes, surcharges, and Equipment rental fees to the extent applicable, calculated as follows:
9.3.1. If the Company has issued one (1) or more invoices during the Term of the Agreement as of the date of termination, the Customer shall be liable to pay the Company liquidated damages calculated as the average of the total issued invoice amounts multiplied by eight (8).
9.3.2. If the Customer terminates the Agreement prior to the Company issuing the first invoice related to the Services, the Customer shall be liable to pay the Company liquidated damages calculated as the anticipated monthly rate as noted on the Quotation multiplied by eight (8).
9.4. The Company reserves the right to terminate the Agreement for convenience at the sole discretion of the Company upon fifteen (15) days prior Notice to the Customer.
9.5. If the Agreement is terminated under any condition set forth herein, the Company shall be entitled to be paid for all Services and Equipment provided by the Company up to the date of termination.
9.6. If the Company terminates the Agreement, the Company may forthwith retake possession of the Equipment without becoming liable for trespass and recover from the Customer all expenses incurred in retaking possession of the Equipment, and seek such other remedies as may be available to it at law and under the Agreement.
- GOVERNANCE AND SEVERABILITY
10.1. 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. Any finding that a provision of this Agreement or part thereof is unenforceable shall apply only to such provision or part thereof and same shall be severed from this Agreement without affecting the enforceability of the balance of this Agreement.
10.2. If, subsequent to the execution of the Agreement, changes are made to applicable laws, ordinances, regulations, or codes of authorities having jurisdiction which affect the Price of the Services, the Company shall reserve the right to adjust the Price.
- MISCELLANEOUS PROVISIONS
11.1. This Agreement shall remain in full force and effect notwithstanding changes to the schedule of the Services, Equipment size or quantity, method of haulage, or an increase in the charges.
11.2. This Agreement shall be binding on the Parties and their respective heirs, administrators, executors, legal representatives, successors and permitted assigns, as applicable.
11.3. The Company will not be held liable for failure to comply with the provisions of the Agreement or failure to provide the Services where such failure is due to circumstances beyond the Company’s reasonable control, including but not limited to acts of government, pandemic, strikes, lockouts, other labour disputes, riots, civil commotion, war, severe weather, flood, earthquake, fires, explosion, and acts of God.
11.4. References to “days” in the Agreement denotes “calendar days”, which shall include weekdays, weekends, and statutory holidays.
Version: April 2024
SUPPLEMENTAL TERMS AND CONDITIONS