Home Performance Design - Guarantee & Disclaimer

Current as of September 2017

1. Terms and Conditions:

Ecolighten Energy Solutions Ltd. ("Ecolighten") guarantees that our Calculations, Recommendations, Designs, and Field Reviews, to the extent that they are included in the contracted scope of work, will be performed by a team of highly qualified personnel with decades of experience in the engineering, installation and service of mechanical systems in residential construction and renovation. Ecolighten guarantees that our staff will take all commercially reasonable steps to ensure that our contribution to each project is as accurate as reasonably possible within the limitations of the data and information provided to us and the contract price. Ecolighten is entitled to rely upon the accuracy and completeness of information and data furnished by the Client, government authority and public utilities, contractors, manufacturers and suppliers of equipment, materials and supplies.

The Client represents and warrants that the Client or their authorized and qualified representative will coordinate the Mechanical & HVAC designs with all other design professionals - including Architectural, Structural, Interior Design, and others, to fully integrate the Ecolighten designs before presentation to trades for pricing, and installation.

Ecolighten will:

  1. not be responsible for the performance of work by the Client's contractors, subcontractors, suppliers or other consultants, or for the failure of any of them to carry out their work properly;
  2. not be responsible for, nor control, direct or supervise, the construction methods, means, techniques, sequences or procedures of the Client's contractors, subcontractors, suppliers or other consultants;
  3. not be responsible for safety precautions and programs required in connection with the project; and
  4. not be responsible to make exhaustive or continuous on-site reviews.

To ensure the best possible outcome of Ecolighten services, the Client agrees to inform Ecolighten in a timely manner of any changes to project details that occur after the date of this Proposal that may impact in any way the accuracy of Ecolighten's work, including but not limited to construction assemblies, glazing, square footage or volume, structural or interior design, appliance selections, building orientation, room usage, 'Green' certifications, comfort targets, and budgets.

All designs provided by Ecolighten under contract to our Clients are on an "As Is" basis. The Client agrees that all designs are conceptual, and implementation of these designs is at the sole discretion of the Client. Ecolighten is not liable for any direct or indirect damage, loss or expense of any kind including, but not limited to, loss of profit, loss of business opportunity, personal financial loss, or any economic loss arising out of the use of Ecolighten designs or services.

2. Payment Terms:

All cheques are to be made payable to Ecolighten Energy Solutions Ltd. Ecolighten may issue progress invoices on a bi-weekly, based on percentage completion. Interest will be charged on accounts aged over thirty (30) days. Interest will be charged at the rate of 1% per month (12.68% per annum) compounded. All proposals are valid for thirty (30) days.

3. Default and Termination:

(a) If the Client fails to pay amounts due, when due, under this Proposal, or otherwise fails to abide by each and every of its obligations under this Proposal, Ecolighten may provide the Client with a notice obligating the Client to remedy such default within a specified period of time that is not less than three (3) business days. If the Client fails to remedy such default within the time specified in the notice, Ecolighten may, without prejudice to any of its other rights and remedies, suspend the services and/or terminate this Proposal. If Ecolighten suspends the services, the time for performing the services shall be extended for a period not less than the period of time in which the Client is in default of its obligations and Ecolighten is entitled to be compensated for the delay.

(b) Ecolighten may, without prejudice to any of its other rights and remedies, terminate this Proposal if the Client commits an act of bankruptcy, or makes a general assignment for the benefit of creditors or has a receiver appointed because of insolvency.

(c) No termination will relieve the Client of any of its obligations under this Proposal.

(d) If Ecolighten is in material default in the performance of any of Ecolighten's obligations under this Proposal, the Client will notify Ecolighten that the default must be corrected. If Ecolighten does not correct the default within thirty (30) days after receipt of such notice, or if Ecolighten does not take reasonable steps to correct the default if the default is not susceptible of immediate correction, the Client may terminate this Proposal upon further notice to Ecolighten. Such termination will not release the Client from its obligation to pay all Fees and Reimbursable Expenses incurred by Ecolighten up to the date of termination.

4. Ownership and Use of Documents:

(a) Any drawings, plans, models, designs, specifications, reports, photographs, computer software if proprietary to Ecolighten, surveys calculations and other data, including computer printouts which are used in connection with the project and which were prepared by or on behalf of Ecolighten are the property Ecolighten, whether the project is performed or not. Ecolighten reserves the copyright therein.

(b) Provided all amounts payable by the Client are paid, the Client will have a non-exclusive license to use any proprietary concept, product or process of Ecolighten which relates to or results from the services for the life of the project and solely for purpose of its maintenance and repair.

5. Insurance and Liability:

(a) Ecolighten carries professional liability insurance of $1,000,000 per claim and $1,000,000 in the aggregate within any policy year.

(b) Ecolighten's liability for claims which the Client has or may have against Ecolighten or Ecolighten's employees, agents, representatives and sub-consultants under this Proposal, whether these claims arise in contract, tort, negligence or under any other theory of liability will be limited, notwithstanding any other provision of this Proposal:

  1. to claims brought within the limitation periods prescribed by law in the jurisdiction in which the project is located or, where permitted by law, within 2 years of completion or termination of the services, whichever occurs first; and
  2. to re-performance of defective services by Ecolighten, plus:
    1. where claims are covered by insurance under clause 5(a), to the amount of such insurance; or
    2. where claims are not covered by insurance under clause 5(a), to the lesser amount of $25,000, or the total amount paid by the Client to Ecolighten in relation to the project.

6. Interpretation and Dispute Resolution:

(a) The law of the place of the work will govern the interpretation application, and administration of this Proposal.

(b) Disputes as to the interpretation, intent, application, or administration of this Proposal that are not resolvable by the Client and Ecolighten (the "Disputes") shall first be submitted to mediation. In the event mediation fails, the Dispute shall be submitted to arbitration pursuant to the Commercial Arbitration Act of the Province of the place of services. The determination of the arbitrator shall be final and binding upon the parties.

(c) The waiver by Ecolighten of any breach by the Client of any covenant or condition contained in this Proposal will not be construed as or constitute a waiver of any further or other breach of the same or any other covenant or condition.

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