Updated: October 2023 INEAS TERMS OF SERVICE

SCHEDULE “A”
ENGINEERING AND SURVEYING SERVICES TERMS AND CONDITIONS
BY ACCEPTING THE ESTIMATE AND PAYING THE [NON-]REFUNDABLE DEPOSIT SET OUT THEREIN, CLIENT AND INEAS AGREE TO THESE TERMS AND CONDITIONS.

These Engineering and Surveying Services Terms and Conditions (the “Terms and Conditions”) are effective as of the date the Estimate (as hereinafter defined) (the “Effective Date”), between IN Engineering Ltd, IN Surveying Ltd, IN Planning Ltd. and IN Designs Ltd., operating as, IN ENGINEERING + SURVEYING, with its registered office at 9 King St West, Suite 203, Brockville, Ontario, K6V 3P7, and its affiliates (“INEAS”) and the “Client” as identified on the Estimate (each, a “Party”, and collectively the “Parties”).
NOW THEREFORE, the Parties agree as follows:

1. INTERPRETATION

1.1 Definitions. For the purposes of these Terms and Conditions, the following terms, in addition to the terms defined elsewhere herein, shall have the following meanings:

(a) “Agreement” means these Terms and Conditions and the Estimate (as defined in Section 2.1) to which these Terms and Conditions are attached, together with all schedules, change orders, and other written documents made between the Parties;

(b) “Background IP” means any and all Intellectual Property conceived, developed, reduced to practice, or otherwise made or acquired by a Party prior to the Effective Date or outside the scope of the Agreement;

(d) “Dispute” means a disagreement between the Parties arising out of or in connection with the Agreement or in respect of any defined legal relationship associated with it or derived from it and includes any failure to reach an agreement where an agreement is required or contemplated under the Agreement;

(e) “Intellectual Property” means trade or brand names, business names, trademarks, service marks, copyrights, patents, trade secrets, know-how, inventions, researchdata, drawings and designs, formulae, processes, technology, and other intellectual, industrial, or proprietary rights, together with all rights under licences and other agreements relating to any of the foregoing or which embody, emulate, or employ any part of the foregoing;

(f)“Proper Invoice” means an application for payment containing the information that may be required for an application for payment under the Construction Act(Ontario), and shall contain the additional requirements set out generally herein and specifically at Section 4.3;

(g)“Representatives” means a Party’s directors, officers, employees, consultants, sub-consultants, agents and/or advisers; and

(h)“Work Product” means Intellectual Property that arises or is developed, produced, created, written, or recorded in the performance of the Services (as defined in Section 2.1) or otherwise in connection with the Agreement, whether independently or jointly by the Parties, and regardless of whether it is identified in the Agreement.

2. SERVICES

2.1 Scope. INEAS has delivered to Client, and Client has accepted, an estimate for services, which, at a minimum sets out the scope of services and/or deliverables to be provided, the project for which services are being provided, the location of the project, the hourly rates payable for such services, and the approximate total cost of such services(“Estimate”). INEAS shall perform or provide the services and deliverables specified in the Estimate(collectively, the “Services”). INEAS will serve as a consultant to Client for the project set out in the Estimate (the “Project”).

2.2 Performance of the Services. INEAS will provide the Services in the manner deemed most effective by INEAS and Client will not direct the means and methods by which INEAS will perform the Services. Notwithstanding the foregoing, INEAS will perform the Services in in a safe, competent, and efficient manner, in keeping with the requirements of any applicable laws, the standards of the industry for buildings of comparable size, type, age, and location, and in strict accordance with any requirements referred to in the Agreement.

2.3 Non-Exclusivity. Nothing in the Agreement will preclude INEAS from devoting reasonable periods of time and attention required for serving other clients, provided this activity does not interfere with the performance of the duties and responsibilities under the Agreement.

2.3 Key Personnel. INEAS will use commercially reasonable efforts to ensure that any and all persons identified as a “Key Person” in the Estimate are and will remain engaged by INEAS to perform the Services. If a Key Person is unable to perform the Services for any reason whatsoever, then INEAS shall replace that Key Person as soon as possible with another person, as determined by INEAS, acting reasonably.

3. TERM AND SCHEDULE

3.1 Term. INEAS will commence performing the Services on the Effective Date, or shortly thereafter, and shall continue its performance of the Services until complete, as determined by INEAS (the “Term”), unless terminated earlier in accordance with the terms of the Agreement.

3.2 Early Provisions on Services. If INEAS begins work to provide any Service, or if INEAS delivers any Service, before the Effective Date, all such work and services will be considered to have been provided under the terms and conditions of the Agreement.

4. FEES AND PAYMENT

4.1 Fees. Unless otherwise stated in the Estimate, in consideration for the provision of the Services, Client shall pay INEAS for the Services on a time and materials basis, in accordance with the hourly rates set out in the Estimate, plus applicable taxes (the “Fees”). The Parties acknowledge and agree that the total Fees and anticipated hours outlined in the Estimate are estimates only, based on the anticipated Services discussed between the Parties as of the Effective Date.

4.2 Expenses. Client shall reimburse INEAS for all expenses, including all permits, applications, and other charges, incurred in connection with the provision of the Services, (collectively, “Expenses”). Upon request, INEAS shall provide Client with such adequate supporting details, receipts, or other documentation as Client may reasonable require.

4.3 Invoices. Unless otherwise set out in the Estimate, INEAS will send Proper Invoices to Client, monthly, or at such other interval as INEAS may determine, for the progressive value of the Services provided and Expenses incurred up to the applicable Proper Invoice date. INEAS shall send each invoice to Client by email, in .pdf format, and shall include on each Proper Invoice:

(a) INEAS’ name and address;

(b) the date of the Proper Invoice and the period during which the applicable Services were provided and Expenses incurred;

(d) a description, including quantity (if appropriate), of the Services provided and Expenses incurred;

(e) the amount payable for the Services provided and Expenses incurred, if any, and the payment terms;

(f) the name, title, telephone number and mailing address of the person to whom payment is to be sent; and

(g) any supporting documentation which may be reasonably required by Client, or any other documentation required by applicable law.

4.4 Payment.

(a) Subject to the terms of the Agreement and any applicable law, Client will pay INEAS the Fees and Expenses payable under a Proper Invoice no later than 28 days after receipt of a Proper Invoice from INEAS, unless Client delivers a notice of non-payment within 14 days of receipt of a Proper Invoice stating the reasons of non-payment.

(b) Where applicable, payment of any Proper Invoice shall be subject to compliance with the holdback provisions of any applicable lien legislation.

4.5 Late Payments. If Client fails to pay to INEAS any amounts payable hereunder for more than 7 days after the date on which such amounts are due, then:

(a) such amounts shall bear interest, calculated from the date when payment was due, up to and including the date when payment is made, compounded monthly, at a rate of 3% per month;

(b) INEAS may immediately suspend its provision of the Services until the date on which all outstanding Fees are paid; and/or

5. CHANGES

5.1 Changes. Client may, without invalidating the Agreement, make minor changes to the Services, provided such changes are approved by INEAS, within the general scope of the Services, and are generally provided by INEAS (“Minor Changes”). Client shall pay INEAS, in accordance with the rates set out in the Estimate, for the provision of any additional work associated with a Minor Change. For clarity, the costs associated with INEAS’ provision of a Minor Change are not included in the fee and/or hour estimates set out in the Estimate. Notwithstanding the foregoing, if INEAS determines, in its sole discretion, that a change to the Services requested by Client significantly changes the scope of the Services, INEAS may require Client to enter into a new agreement for the provision of such services.

5.2 Delays. If INEAS is, or anticipates it will be, delayed in the performance of the Services, it will provide Client notice of such delay or potential delay in a timely manner. If such delay is caused by acts or omissions of Client or its Representatives, Client shall compensate INEAS for any costs incurred as a result of such delay. In no event will INEAS be responsible for damages due to delays beyond INEAS’ reasonable control.

6. TERMINATION

6.1 Termination for Convenience. Either Party may, at any time and without cause, terminate the Agreement, without penalty and without limiting any other remedy available to it under the Agreement or otherwise, by giving 30 days’ written notice to the other Party. 6.2 Termination for Default or Bankruptcy. Either Party may terminate the Agreement, in whole or in part, immediately upon written notice to the other Party, without penalty and without limiting any other remedy available to it under the Agreement or otherwise, if the other Party:

(a) is in default under the terms of the Agreement and such default has not been cured within 10 Business Day after receiving written notice thereof; or

(b) becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, a receiver is appointed, or a voluntary or involuntary petition in bankruptcy is filed concerning the other Party.

6.3 Obligations on Termination. Upon termination or expiration of the Agreement for any reason, Client shall promptly pay INEAS: (a) all Fees due and owing for all Services provided prior to the date of such termination or expiration (including reasonable profit); (b) any applicable termination expenses; and (c) if applicable, all such other damages sustained by INEAS as a result of the termination of the Agreement.

7. CLIENT RESPONSIBILITIES

7.1 Insurance. INEAS shall carry, at no cost to Client, professional liability insurance, issued by a company licensed to underwrite insurance in the province of Ontario, which insurance shall insure INEAS from claims arising from errors, omissions, or negligent acts in the performance of INEAS’ professional services, duties and responsibilities pursuant to the Agreement, and which coverage shall be maintained continuously from the commencement of the Services under the Agreement until completion or termination of the Services, whichever occurs first. If after commencement of the Services, Client wishes to increase the amount of the coverage of any insurance policy carried by INEAS or to obtain other special insurance coverage, then INEAS shall cooperate with Client to obtain such increased or special insurance at Client’s cost.

7.2 Client’s Responsibilities. Client agrees to complete the following responsibilities, as applicable, on a timely basis:

(a) provide INEAS with complete instructions regarding its requirements and make available to INEAS all relevant information which may be required in connection with the provision of the Services, including design objectives, constraints and criteria, special equipment and systems, Project site requirements and Project budget. INEAS shall be entitled to rely upon the accuracy and completeness of all such information and data furnished by Client and/or its Representatives;

(b) engage such other specialized consultants, as reasonably required by INEAS, to perform any specialized services necessary to enable INEAS to fulfill its obligations hereunder. The retention of such specialized consultants by Client shall be at Client’s sole cost and expense and is subject to the joint approval of the Parties;

(c) promptly review all documentation submitted by INEAS to Client and inform INEAS of any issues and/or decisions in respect of such documentation to allow for the orderly progression of the Services and the Project;

(d) obtain and maintain all consents, approvals, licenses, and permits required in connection with the Services and/or the Project from authorities having jurisdiction;

(e) provide INEAS with entry and access to the Project site during the Term; and

(f) immediately notify INEAS if it becomes aware of a defect or deficiency in the Services.

8. CONFIDENTIAL INFORMATION

8.1 Confidentiality.

(a) Each Party agrees to keep confidential any information relating to the other Party that is of a confidential or proprietary nature whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labelled or identified as confidential or proprietary.

(b) The Parties shall keep confidential all matters respecting technical, commercial and legal issues relating to or arising out of the Services or the performance of the Agreement and shall not, without the prior written consent of the other Party, disclose such matters, except in strict confidence, to its professional advisors.

8.2 Exclusions. Confidential information does not include information that: (a) has become generally available to the public other than as a result of a disclosure by the receiving Party or any of its Representatives; (b) was available to the receiving Party or its Representatives on a non-confidential basis before the Effective Date; or (c) becomes available to the receiving Party or its Representatives on a non-confidential basis from a person other than the disclosing Party or any of its Representatives who is not, to the knowledge of the receiving Party or its Representatives, otherwise bound by confidentiality obligations to the disclosing Party in respect of such information.

8.3 Required Disclosure. In the event that either Party becomes legally compelled to disclose the other Party’s confidential information, that Party will promptly notify the other Party of such requirement. Such disclosure will not result in any liability hereunder.

9. INTELLECTUAL PROPERTY

9.1 Work Product. Unless otherwise agreed to in writing by the Parties, INEAS will own all right, title, and interest in and to all Work Product and Client irrevocably assigns to INEAS all Intellectual Property rights in the Work Product. INEAS hereby grants to Client a limited, royalty-free, irrevocable, fully paid-up licence to use, disclose, reproduce, and distribute the Work Product solely in connection with the Project and for no other purpose. Client shall be solely responsible for all damages, expenses, costs, liabilities, claims or losses arising out of or in connection with Client’s or its Representatives’ use or disclosure of any Work Product licensed hereunder.

9.2 INEAS Background IP. Subject to any proprietary rights of any third party, INEAS retains all right, title, and interest in and to any and all of INEAS’ Background IP. To the extent that any INEAS Background IP is incorporated into or necessary to the use of the Work Product, INEAS hereby grants to Client a limited, non-exclusive, non-transferable licence to use, disclose, reproduce and distribute such INEAS Background IP for the purposes of the Project and for no other purpose.

9.3 Client Background IP. INEAS shall not use any of Client’s Background IP in performing the Services or incorporate any of Client’s Background IP into any Work Product without the prior written consent of Client. To the extent that Client gives such consent, Client hereby grants to INEAS a limited, non-exclusive, non-transferable licence to use or incorporate such Client Background IP solely as necessary to provide the Services to Client and for no other purpose.

9.4 Reservation. Each Party retains all right, title, and interest in and to all Intellectual Property owned, developed, or licensed by it, which is not expressly referred to in the Agreement.

10. LIMITATION OF LIABILITY AND INDEMNITIES

10.1 Limitation of Liability. In no event will either Party be liable to the other Party for any indirect, special, incidental, consequential, punitive or exemplary damages of any nature whatsoever, including for loss of profits, loss of revenue, business interruption, loss of business information, loss of use or equipment or facilities, or any other pecuniary loss, arising from or relating to the Agreement, including the performance of INEAS’ duties and responsibilities hereunder, regardless of the claim and regardless of whether that Party has been advised of the possibility of such damages. In no event shall INEAS be liable for, and Client shall be solely liable for, Client’s or its Representatives’ use or modification of the Services, including any deliverable provided in connection therewith, in any manner not approved by INEAS in writing. If Client is entitled to recover from INEAS any damages relating to the Agreement, INEAS’ total cumulative liability for damages, expenses, costs, liabilities, claims or losses, whether arising in negligence, tort, statute, equity, contract, common law, or related to errors, omissions, or negligent acts in the performance of INEAS’ duties and responsibilities under the Agreement, or any other cause of action or legal theory, shall be limited to the coverage and amount of professional liability insurance carried by INEAS.

10.2 Indemnification. Unless otherwise stated herein, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”) from and against all claims, actions, losses, expenses, costs, or damages that the Indemnified Party may suffer, sustain, or incur arising from the Indemnifying Party’s or its Representatives’ negligent acts or omissions in the performance of the Agreement. The obligation of either Party to indemnify the other as set out in herein shall be inclusive of interest and all legal costs. INEAS shall, within the limits of its insurance coverages, indemnify Client from claims, demands, losses, costs, damages, actions, suits, or proceedings in respect of claims by a third party, and from losses, costs, or damages suffered by Client, provided these are attributable to error, omission, or negligent act in the performance of the Services of INEAS under the Agreement.

11. DISPUTE RESOLUTION

11.1 Good Faith Negotiations. Without limiting the termination rights set out in Section 6, the Parties shall make all reasonable efforts to resolve any Dispute by amicable negotiations and they agree to provide, on a “without prejudice” basis, frank candid and timely disclosure of relevant facts, information and documents to facilitate such negotiations.

11.2 Mediation. Without limiting the termination rights set out in Section 6, if a Dispute referred to in Section 11.1 has not been resolved within 15 Business Days of a Party’s request for negotiation, the Parties may agree to submit the Dispute to mediation. The Parties shall bear the cost of any mediation equally. If the Dispute is resolved through mediation, such resolution shall be evidenced by an instrument in writing. Mediation shall be considered to have failed if either Party, at any time, gives written notice to such effect to the other Party.

11.3 Arbitration. Any Dispute which cannot be amicably settled by negotiation or mediation, in accordance with Sections 11.1 or 11.2, may be settled by arbitration in accordance with the Arbitration Act (Ontario). Such arbitration shall be governed by the laws of the Province of Ontario and shall take place in Brockville, Ontario. The Parties agree that the arbitration will be limited to a single arbitrator, who must have at least 20 years of experience as an arbitrator, lawyer and/or claims consultant in the construction industry. Each Party shall bear its own costs and shall share the costs of the arbitrator equally. If the Parties choose to arbitrate the Dispute pursuant to this Section 11.3, such arbitration shall be final and binding on the Parties and there shall be not right of appeal (including on a question of law).

11.4 Adjudication under the Construction Act. Nothing in the Agreement shall be deemed to affect the rights of the Parties to resolve any Dispute through adjudication under the Construction Act (Ontario). The Parties hereby agree that an adjudication can be commenced after the Agreement is completion.

12. GENERAL PROVISIONS

12.1 Safety. INEAS is only responsible for the activities of its Representatives and takes no further responsibility for the safety of the Project site. Nothing in the Agreement shall be construed to relieve Client, any of its Representatives, or and other party from their responsibilities to maintain a safe Project site.

12.2 Non-Disparagement. To the extent permitted by law, Client agrees to refrain from, and ensure its Representatives refrain from, demeaning, disparaging, criticizing or deriding INEAS in any way, either during or after the term of the Agreement.

12.3 Successors and Assigns. The Agreement ensures to the benefit of, and is binding upon, the Parties hereto and their respective successors and permitted assigns. Neither Party may assign the Agreement without the prior written consent of the other Party.

12.4 Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties irrevocably attorn to the jurisdiction of the courts of Ontario.

12.5 Entire Agreement; Amendment. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior understandings and agreements between the Parties with respect thereto. There are no representations, warranties, forms, conditions, undertakings or collateral agreements, express, implied, statutory or otherwise, between the Parties other than as expressly set forth in the Agreement. The Agreement may only be amended by written agreement signed by each Party.

12.6 Language. The Parties acknowledge that they have required that the Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou indirectement, relativement ou à la suite de la présente convention.

12.7 Currency. All dollar amounts referred to in the Agreement are in Canadian dollars.

12.8 Notices. Any notice or communication to be made by a Party to the other under the Agreement shall be in writing, in English, and shall be made by personal delivery, overnight courier, prepaid mail, e-mail or functionally equivalent electronic means of transmission, addressed to the other Party at the address set out in the Estimate. Such notice or communication shall be deemed to have been received: (a) if sent by personal delivery or email, on the date it was sent; (b) if sent by courier, on the next Business Day following delivery; or (c) if sent by regular mail, on the fifth (5th) Business Day following the date of mailing. Either Party may change its address for the purpose of this Section 12.8 by giving written notice of such change to the other Party in the manner set out above.

12.9 Independent Consultant. It is expressly agreed that each Party is and will remain an independent contractor of the other. Under no circumstances will the Agreement be deemed to create any partnership, joint venture, association, syndicate, agency, or employment relationship between a Party or its Representatives and the other Party. No Party will have any authority to make any statements, representations, or commitments of any kind, or to take any action or incur any liability, which will be binding on the other Party.

12.10 Severability. Each provision of the Agreement is distinct and severable. If any provision of the Agreement, in whole or in part, is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect the legality, validity or enforceability of the remaining provisions of the Agreement, or the legality, validity or enforceability of that provision in any other jurisdiction.

12.11 Survival. All terms of the Agreement, which by their nature are continuing, shall survive the termination or other expiration of the Agreement, including, without limitation, the releases and indemnifications set out herein.

12.12 Further Assurances. The Parties shall, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of the Agreement.

12.13 Rights and Remedies. Except as expressly provided herein, the duties, obligations, rights and remedies available in the Agreement shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law.

12.14 Waiver. Except as otherwise expressly provided herein, a waiver by any Party of any rights or the failure to exercise any remedy will not operate or be construed as a continuing waiver of the same right or remedy or any of the other of such Party’s rights or remedies.

12.15 Force Majeure. Except as expressly provided in the Agreement, INEAS will not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight, including but not limited to acts of war, acts of God, epidemics, pandemics, public health emergencies, earthquakes, floods, embargoes, riots, sabotage, terrorism, or governmental acts (not resulting from the actions or inactions of INEAS), provided that INEAS gives Client prompt notice of such cause and uses reasonable efforts to promptly correct such failure or delay in performance.

12.16 Paramountcy. In the event of any inconsistency, conflict, or ambiguity concerning the Agreement, the following, in order of precedence, shall control and supersede any such inconsistency, conflict, or ambiguity as follows: (a) the Estimate; (b) these Terms and Conditions; and then (c) the remainder of the Agreement.

12.17 Counterparts and Electronic Delivery. The Agreement may be signed by manual, digital or other electronic signatures and may be executed and delivered by the Parties in one or more counterparts, each of which will be an original, and each of which may be delivered by email or other functionally equivalent electronic means of transmission, and those counterparts will together constitute one and the same instrument.