TERMS AND CONDITIONS FOR ENGINEERING SERVICES
WEAL Consulting Inc.
This Terms and Conditions Agreement (the “Agreement”) sets out the terms upon which WEAL Consulting Inc. (“WEAL”) provides engineering and related professional services to the client identified in the applicable proposal, instruction, purchase order, drawing request, email request, work order, invoice, acknowledgement or other engagement record (the “Client”).
This Agreement applies to all services, advice, drawings, calculations, letters, reports, reviews, analyses, shop drawing reviews, field reviews, construction reviews, general reviews, consultations and other work product or services provided by WEAL (collectively, the “Services”), whether provided before or after execution of this Agreement, unless WEAL expressly agrees otherwise in a separate written agreement signed by WEAL.
1. Application of Agreement
This Agreement governs all present and future engagements between WEAL and the Client unless and until replaced by a subsequent written agreement signed by WEAL. Acceptance of this Agreement may be evidenced by signature, electronic acceptance, instruction to proceed, request for Services, payment of an invoice, reliance on any deliverable issued by WEAL, or continued dealings with WEAL after receipt of this Agreement.
In the event of inconsistency between this Agreement and any purchase order, vendor form, subcontract, ticket, field form, site instruction, email footer or other Client document, this Agreement shall prevail unless WEAL expressly agrees in writing, signed by WEAL, that a specified provision of another document overrides this Agreement. No contrary or additional term proposed by the Client shall bind WEAL merely by reason of WEAL commencing work, issuing deliverables or accepting payment.
2. Scope and Nature of Services
WEAL provides professional engineering services only within the scope expressly requested by the Client and accepted by WEAL. The Client acknowledges that many of WEAL’s assignments involve temporary structures, including tents, stages, platforms, fencing, barriers, inflatable amusement devices, ancillary event structures and their associated components, and that WEAL’s role is generally limited to discrete engineering analysis, design and review tasks, not full project administration.
Where WEAL performs any construction review, general review or field review service, such service is limited to periodic observation for general conformance with the applicable engineering concept or design intent. It does not constitute an exhaustive inspection, continuous site attendance, quality assurance program, supervision of construction, supervision of erection, verification of every dimension, verification of every connection, verification of every installation step, or certification that the work is safe or suitable for occupancy at all times.
Unless expressly stated otherwise in writing, WEAL is not retained to monitor weather, wind, snow, loading, crowd behaviour, ongoing operating conditions, fabric deterioration, ballast movement, anchorage tampering, maintenance practices, erection sequencing, dismantling procedures or event operations.
For greater certainty, any construction review, field review or general review performed by WEAL shall be interpreted consistently with the meaning and scope of such services as established by the applicable professional engineering regulatory authority in the jurisdiction in which the Services are provided, including, where applicable, the concept of “general conformance” as described in relevant professional guidelines. The parties expressly agree that such services are limited in nature and do not constitute inspection, certification of every aspect of the work, or continuous or exhaustive review of construction.
The Client acknowledges and agrees that the use of the term “inspection” in any informal communication, email, drawing request, invoice, or industry usage shall not expand the scope of the Services or create any higher standard of care or responsibility on the part of WEAL.
3. Standard of Care; No Warranty
WEAL shall perform the Services with the degree of care, skill and diligence ordinarily exercised by prudent professional engineers providing similar services for similar projects in similar circumstances. This is the sole standard of performance applicable to the Services.
No representation, warranty or guarantee, express, implied or statutory, is given by WEAL, and all conditions and warranties that may otherwise be implied by law, usage or custom are excluded to the fullest extent permitted by law. Without limiting the foregoing, WEAL does not warrant that any structure or installation will be error-free, defect-free, fit for a particular purpose, operational under all conditions, or free from failure if used, erected, loaded, maintained or operated other than strictly in accordance with WEAL’s stated assumptions, criteria, limitations and instructions.
4. Client Information and Reliance
WEAL is entitled to rely, without independent verification, on all information, instructions, dimensions, measurements, site data, geotechnical information, substrate information, anchor capacities, ballast information, manufacturer specifications, product literature, weather information, schedules, event information, loading information and other materials supplied by or through the Client or any third party.
WEAL shall have no responsibility or liability whatsoever arising from inaccuracies, omissions, inconsistencies, lateness, incompleteness or changes in any information supplied by or through the Client or any third party. WEAL shall not be required to conduct site measurements, destructive testing, hidden condition investigations, product testing, as-built verification, forensic review or any other independent verification unless specifically retained in writing and paid for accordingly.
If the Client becomes aware of any error, discrepancy, changed condition or new information that may affect the Services or any deliverable, the Client shall immediately notify WEAL in writing and shall cease using or relying on the affected deliverable unless and until WEAL confirms continued validity in writing.
5. Client Responsibilities
The Client shall provide prompt and accurate instructions; ensure WEAL has timely access to all relevant information, premises and decision-makers; review WEAL’s deliverables promptly; communicate all WEAL requirements, assumptions, limitations, warnings and operational restrictions to all contractors, installers, owners, event organizers, operators and users; and obtain all permits, approvals, licences, consents and third-party authorizations required for the project or structure.
The Client shall ensure that structures are erected, installed, ballasted, anchored, loaded, used, monitored, maintained and dismantled strictly in accordance with WEAL’s deliverables, manufacturer requirements, applicable laws and prudent industry practice. The Client shall ensure that any temporary structure is taken out of service and not occupied whenever actual or anticipated conditions exceed the applicable design assumptions, including stated wind, snow, occupancy, load or environmental limits.
The Client shall not alter, redact, excerpt, combine, override or selectively distribute WEAL’s deliverables in a manner that could mislead any person as to the conditions, assumptions, limitations or qualifications applicable to the Services.
The Client shall be solely responsible for ensuring that all engineering deliverables, limitations, assumptions, warnings and operational restrictions are communicated to and understood by all contractors, event organizers, owners, operators and users, and WEAL shall have no responsibility or liability for any failure to do so.
6. No Responsibility for Construction Means, Methods, Safety or Operations
WEAL is not responsible for construction means, methods, techniques, sequences, procedures, temporary bracing, temporary shoring, rigging, hoisting, staging, worksite coordination, worksite security, occupational health and safety, worker protection, crowd safety, event operations, maintenance, supervision of contractors, supervision of installers, or the acts or omissions of contractors, subcontractors, suppliers, manufacturers, owners, organizers, operators or other third parties.
WEAL is not responsible for determining when a structure should be evacuated, closed, de-tensioned, re-anchored, re-ballasted, inspected by others, repaired or removed from service, except to the limited extent expressly stated in a written deliverable issued by WEAL.
7. Deliverables; Use and Reliance
All drawings, calculations, reports, letters, sketches, emails, notes and other deliverables are prepared solely for the Client and solely for the specific project, site, structure, configuration, date, assumptions and purpose identified in the relevant engagement. No deliverable may be used for any other site, event, structure, season, jurisdiction, loading scenario, configuration, revision or purpose without WEAL’s prior written consent.
No person other than the Client may rely on any deliverable issued by WEAL without WEAL’s prior written consent in a document expressly authorizing such reliance. To the fullest extent permitted by law, WEAL disclaims any duty of care, assumption of responsibility or other obligation to any person other than the Client, including any owner, landlord, venue operator, event organizer, sponsor, patron, attendee, contractor, installer, insurer, lender, regulator or member of the public.
The Client acknowledges that WEAL has no contractual relationship with any other project participant and that any use, reliance or transmission of WEAL’s deliverables beyond the Client is entirely at the Client’s sole risk. The Client shall indemnify WEAL from any claim by a third party arising from that third party’s access to or reliance on a deliverable unless WEAL expressly authorized such third-party reliance in writing.
8. Temporary Structures; Operating Limits; Weather and Occupancy
The Client acknowledges that temporary structures are condition-sensitive and are not all-weather shelters. Unless WEAL expressly states otherwise in writing for a specific structure, WEAL does not guarantee performance or safety under changing weather, cumulative loading, dynamic loading, extraordinary crowd behaviour, improper erection, inadequate ballast, inadequate anchorage, deterioration, impact, vandalism, unapproved modifications or any other condition beyond the assumptions stated in the applicable deliverable.
All maximum wind speeds, snow loads, occupancy restrictions, ballast requirements, anchorage requirements, operational instructions and similar limitations identified by WEAL are material conditions of WEAL’s Services. Any erection, use or continued occupancy of a structure contrary to those limitations is entirely at the Client’s risk, and WEAL shall have no liability for any consequence arising therefrom, whether the consequence involves property damage, business interruption, bodily injury, death, event cancellation, reputational harm or any other loss.
9. Fees; Suspension for Non-Payment
The Client shall pay all invoices issued by WEAL in accordance with WEAL’s invoice terms. Overdue amounts shall bear interest at the rate stated on the invoice, or if none is stated, at the rate of eighteen percent per annum calculated monthly, without prejudice to WEAL’s other rights.
If any invoice is overdue, or if WEAL reasonably believes that payment is insecure, WEAL may suspend the Services, withhold deliverables, revoke any permission to rely on unfinished work, or require payment in advance, and WEAL shall have no liability for any delay, cost, loss or consequence arising from such suspension or withholding.
10. Intellectual Property and Limited Licence
All drawings, specifications, reports, calculations, sketches, emails, notes and other instruments of service prepared by WEAL (collectively, the “Documents”) shall remain the sole and exclusive property of WEAL and are protected by applicable copyright and intellectual property laws.
Upon full payment of all amounts owing to WEAL, the Client is granted a limited, non-exclusive, non-transferable licence to use the Documents solely for the specific project, site, structure and purpose for which they were prepared.
The Documents shall not be reused, relied upon, modified, distributed, transmitted, sublicensed, or applied to any other project, location, structure, configuration or purpose without the prior written consent of WEAL. If the Client uses a deliverable without such consent, or after any suspension, change in conditions or revocation, the Client does so entirely at its own risk and shall defend, indemnify and hold harmless WEAL from all resulting claims, losses and expenses. WEAL shall have no responsibility or liability for any use of the Documents except as expressly permitted under this Agreement.
11. Insurance
Throughout the period during which the Services are performed and for not less than two years thereafter, the Client shall maintain, at its own expense, insurance reasonably appropriate to its business and the project risks, including commercial general liability insurance and such property, event, installation, wrap-up, riggers’ liability, inland marine or other insurance as may be prudent having regard to the structures, operations and third-party exposures involved.
Upon request, the Client shall provide WEAL with certificates of insurance evidencing such coverage.
WEAL’s review of any certificate of insurance shall not relieve the Client of responsibility for maintaining adequate coverage and shall not be construed as advice by WEAL regarding insurance sufficiency.
12. Waiver of Subrogation
To the fullest extent permitted by law and to the extent any loss is covered by insurance maintained by the Client or required to be maintained by the Client, the Client waives, and shall cause its insurers to waive, all rights of subrogation, recovery, recourse or action against WEAL and against WEAL’s officers, directors, employees, agents and consultants in respect of such loss. Canadian insurance commentary distinguishes waiver of subrogation from additional insured status and notes that the policy arrangement must support the promise.
The Client acknowledges that a contractual waiver of subrogation is intended to reduce insurer-driven claims among project participants and will obtain all endorsements reasonably required to give effect to this clause.
13. Limitation of Liability
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, WEAL’s total aggregate liability to the Client and to all persons claiming through or under the Client, whether in contract, tort, negligence, negligent misrepresentation, breach of statutory duty, equity or otherwise, arising out of or relating to the Services, the deliverables or this Agreement, shall be limited to the lesser of: (a) the amount of fees actually paid to WEAL for the specific project or assignment giving rise to the claim; and (b) the amount of insurance proceeds actually available to WEAL in respect of that claim, if any.
In addition, WEAL’s sole obligation in respect of any defective Service shall, at WEAL’s option, be limited to correcting or re-performing the defective portion of the Service.
The allocation of risk reflected in this Agreement is an essential basis of the bargain between the parties, and the fees charged by WEAL reflect that risk allocation. If the Client wishes WEAL to consider assuming greater liability, such greater liability must be expressly agreed in a written amendment signed by WEAL, and WEAL may require an increased fee and proof of additional insurance before doing so.
14. Exclusion of Indirect and Consequential Loss
To the fullest extent permitted by law, WEAL shall not be liable for any indirect, special, incidental, punitive, exemplary or consequential loss or damage whatsoever, including loss of profit, loss of revenue, loss of business, loss of opportunity, loss of reputation, event cancellation loss, loss of use, financing costs, increased overhead, delay damages, liquidated damages, business interruption, accommodation costs, refund obligations, ticketing losses, sponsor claims, or claims by persons who are not parties to this Agreement.
15. Time Bar for Claims
Any claim arising out of or relating to the Services must be commenced, if at all, within the earlier of: (a) the limitation period prescribed by applicable law; and (b) two years after the earlier of substantial completion of the relevant Services, issuance of the relevant final deliverable, or termination of the relevant engagement.
The Client hereby waives any right to commence or maintain any claim outside the foregoing period to the fullest extent permitted by law.
16. No Personal Liability
The Client agrees that it shall have recourse only against WEAL as a corporate entity and shall have no claim whatsoever against any officer, director, shareholder, employee, representative, consultant or agent of WEAL in respect of the Services, the deliverables or this Agreement.
Without limiting the foregoing, no professional engineer employed by, retained by, or associated with WEAL assumes any personal liability to the Client or to any third party by virtue of sealing, signing, reviewing, discussing or otherwise participating in the Services on behalf of WEAL.
17. Indemnity in Favour of WEAL
The Client shall defend, indemnify and hold harmless WEAL and its officers, directors, employees, agents and consultants from and against all claims, demands, actions, liabilities, damages, judgments, losses, penalties, fines, costs and expenses, including legal fees on a substantial indemnity basis, arising out of or relating to: (a) inaccurate, incomplete or late information supplied by or through the Client; (b) erection, installation, loading, operation, occupancy, maintenance, modification, relocation, dismantling or use of any structure; (c) any use of a structure or deliverable outside the applicable assumptions, limitations or instructions; (d) any failure by the Client to communicate WEAL’s requirements, limitations and warnings to others; (e) any unauthorized reuse, alteration or distribution of WEAL’s deliverables; (f) bodily injury, death, property damage or business loss occurring in connection with the project or structure; and (g) any claim by a third party arising from or relating to the Services, except, in each case, to the extent finally determined by a court of competent jurisdiction to have been directly caused by WEAL’s gross negligence or wilful misconduct.
This indemnity is separate from and in addition to the limitation of liability, and shall apply regardless of the theory of liability asserted against WEAL.
18. Hazardous Materials and Hidden Conditions
Unless expressly stated otherwise in writing, WEAL is not responsible for identifying, investigating, testing for, monitoring, reporting on, remediating, handling, storing, removing or disposing of hazardous materials, mould, asbestos, pollutants, contaminants, toxic materials, designated substances, explosive materials, unsafe pre-existing conditions or hidden defects at or adjacent to any site, venue or structure.
19. Force Majeure
WEAL shall not be liable for any delay, failure, suspension, inability to perform or increased cost caused by circumstances beyond WEAL’s reasonable control, including severe weather, utility interruption, labour disruption, illness, governmental action, supply chain disruption, transportation interruption, cyber incident, failure of communications systems, fire, flood or any other force majeure event. In such circumstances, WEAL may suspend the Services or adjust schedules as reasonably necessary.
20. Suspension; Termination
WEAL may suspend or terminate any engagement immediately upon written notice if the Client fails to pay any invoice when due, fails to provide information required by WEAL, directs WEAL to proceed in a manner WEAL considers unsafe or professionally improper, uses or proposes to use any deliverable outside its intended purpose, or otherwise breaches this Agreement.
The Client may terminate a specific engagement on written notice, but the Client shall remain liable for all Services performed, commitments made, costs incurred and close-out work reasonably required by WEAL up to the effective date of termination. Suspension or termination shall not affect accrued rights, payment obligations, indemnities, limitations of liability, ownership rights or any other provision that by its nature is intended to survive.
21. Governing Law; Jurisdiction
This Agreement and all disputes arising out of or relating to the Services shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles. Subject to WEAL’s right to seek injunctive or equitable relief in any competent jurisdiction, the parties irrevocably attorn to the exclusive jurisdiction of the courts of Ontario, sitting in Toronto, Ontario, for the determination of any dispute, claim or proceeding arising out of or relating to this Agreement or the Services.
22. Severability; Survival; Amendment
If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision shall be severed and the remaining provisions shall remain in full force and effect to the fullest extent permitted by law, and the invalid provision shall be deemed replaced by a valid provision that most closely reflects the original commercial intent.
The provisions relating to payment, intellectual property, limited licence, no third-party reliance, temporary structures and operating limits, insurance, waiver of subrogation, limitation of liability, exclusion of indirect damages, time bar for claims, no personal liability, indemnity, hazardous materials, governing law, severability and any other provision which by its nature is intended to survive shall survive completion, suspension or termination of the Services.
No amendment, waiver or variation of this Agreement shall be binding unless made in writing and signed by WEAL. No waiver by WEAL of any breach shall constitute a waiver of any other breach or any future breach.
23. Electronic Signatures; Counterparts
This Agreement may be executed in counterparts and by electronic signature, and delivery by electronic means shall be effective as delivery of an original.
24. Acknowledgement
The Client acknowledges that it has read and understood this Agreement, has had the opportunity to obtain independent legal advice, and agrees that this Agreement is commercially reasonable having regard to the nature of the Services, the fees charged and the allocation of risk between the parties.