Empower Terms and Conditions
Welcome to Empower! This Agreement (“Agreement”) governs your relationship with Empower:
1 Definition and Interpretation 1.1 In these Conditions, the following words and expression shall have the following meanings except where the context otherwise requires: “Additional Charge” means a charge payable by the Customer for additional services outside the scope of the Services in accordance with Empower’ prevailing rates for such services including without limitation, the supply of spare parts and goods. “Accepted Estimate” means the estimate/proposal which is provided by Empower and the customer accepts verbally or online or by signing on Signature Box in Empower Service Fusion Mobile Application and includes these Conditions. “Conditions” means these General Terms and Conditions of Service & Maintenance which are incorporated into and form part of the Agreement. “Customer” means the person or persons, firm or company named in the Accepted Estimate. “Equipment” means the equipment listed in(including its Schedules) the Accepted Estimate. “Fee” means the fee payable for the Services as specified in Estimate Total section of the Accepted Estimate. “Party” means the Customer or Empower, and “Parties” means both of them. “Services” means the maintenance and other services provided in respect of the Equipment and as defined in these Conditions. “Service Time” means the period set out in Clause 2 herein. “Site” means the premises where the Services are provided. “Empower” means the Empower company including its successors, agents and assigns. “Term” means the duration of the Agreement commences on the date you agreed to this Agreement by Accepting the Estimate and ends (i) if this Agreement is terminated by you or us in accordance with its terms or (ii) when the service stated on Accepted Estimate has been performed. 1.2 Any reference in these Conditions to any provision of a statute and any regulations made in pursuance thereof as from time to time modified or reenacted, whether before, on or after the date of the Agreement, so far as such modification or re-enactment applies or is capable of applying to any transaction entered into prior to completion of the Agreement (so far as liability thereunder may exist or can arise) shall be construed as a reference to that provision or regulation as amended, re-enacted or extended at the relevant time and shall include also any past statutory provision or regulation (as from time to time modified or re-enacted) which such provision or regulation has directly or indirectly replaced. 1.3 The headings in these Conditions are for convenience only and shall be ignored in construing these Conditions and shall not affect their interpretation. 1.4 Words (including words defined in the Agreement) importing the singular also include the plural and vice-versa where the context requires. The words “written” and “in writing” include any means of visible reproduction. 1.5 Empower shall provide the Services to Customer in accordance with this Agreement. In the event of any inconsistency between these Conditions and other documents forming part of the Agreement, the following order or priority shall apply: 1.5.1 Any written Accepted Estimate between the Parties where the Parties agree that any of the provisions in these Conditions should be superseded with an express reference to this Clause 1.5; 1.5.2 Empower’ quotation and documents (if any) incorporated by express reference to this Clause 1.5; 1.5.3 This Agreement; 1.5.4 These Conditions.
2 Service Time: The Services shall be performed within the Service Time, which shall be between 8.00 a.m. and 8.00 p.m., Mondays to Fridays, Public Holidays excluded. Response times for corrective maintenance services shall be agreed between the Parties.
3 Modification, Changes and Enhancements 3.1. During the Term, Empower shall at their discretion undertake such modifications, changes or enhancements to the Equipment and/or implement any practice, procedure or measure, which is deemed by Empower to be necessary and/or to prevent or minimise damage to the Equipment. 3.2. Empower will before undertaking any such modification, change or enhancement etc as mentioned in 3.1 above, explain to the Customer, if Empower deems necessary, the need and cost (where applicable) of such modification, change or enhancement. The Customer shall pay any Additional Charge for such modification, change or enhancement according to Clause 7.2.
4 Exclusions & Additional Services 4.1 The Services do not include:- a) Repair of damage arising from the act, error, fault, neglect, misuse, improper operation or omission of the Customer or its servants, agents, contractors or invitees or any person whether or not that person is under the control or direction or authority of the Customer. b) Repair of damage arising from changes, alterations, additions or modifications of the Equipment by a person other than Empower. c) Repair of damage caused by incorrect power supply, failure of electrical power, existing electrical or thermostat wiring, humidity or any environmental factor. d) Repair of damage caused by the operation of the Equipment other than in accordance with the specifications or otherwise than in accordance with the direction, instruction or recommendations of Empower or its personnel. e) Repair of damage arising from the re-installation, moving or removing of the Equipment by a person other than Empower. f) Repair of damage caused by any circumstances beyond Empower’ reasonable control. g) Furnishing or supplying maintenance of accessories, attachments, supplies, spare parts, consumables or items associated with the Equipment unless otherwise provided in Schedule 2. h) Transportation charges, whether for air, sea or land transport for Services carried on within or outside Canada. i) Work performed outside Empower’ Service Time. j) The cost of any Equipment or part whether spare part, consumable or otherwise supplied, unless otherwise provided in Schedule 2. k) The upgrading of or retrofitting of improvements or major modification to the Equipment. 4.2 Empower may at the Customer’s option provide any of the services referred to in clause 4.1 or any other services requested by the Customer, at the relevant Additional Charge. Empower shall inform the Customer of the associated Additional Charge, and the Customer shall accept the Additional Charge in writing before the services are performed. The Additional Charge shall be payable by the Customer according to clause 7.2.
5 Customer’s Responsibilities 5.1 The Customer shall undertake to release all Equipment which is being maintained by Empower from all operational demands when so requested to do so by Empower in order for Empower to perform the Services. Alternatively, the Customer shall ensure that Empower’ personnel have full and safe access to the Equipment at all reasonable times for the purpose of providing the Services. The Customer shall also ensure that such access conforms to any specifications issued by Empower from time to time. 5.2 The Customer will ensure that Empower’ personnel or representatives are provided a safe and secure work environment at all times while they are on the Site to enable work to be carried out. 5.3 The Customer shall provide on request a suitably qualified or informed representative, agent or employee to accompany Empower’ personnel when providing the Services or to render such assistance or to give such advice as will enable Empower’ personnel to exercise unrestricted access to the Site and the Equipment and otherwise to perform the Services effectively. 5.4 The Customer shall supply auxiliary facilities and services when requested by Empower as necessary for the provision of the Services. Where the Customer does not provide the auxiliary facilities and services, Empower shall be entitled to procure such auxiliary facilities and services and seek full reimbursement from the Customer provided Empower has given the Customer written notice of the non-compliance and the Customer has failed to remedy the non-compliance within the time specified in the notice. The auxiliary facilities and services shall include without limitation:- a. Adequate telephone/communications facilities; b. Lighting for all work areas; c. Main and auxiliary electrical power necessary for the operation of all equipment, capable of being isolated either by isolating switches, removal of fuses or other means to the reasonable satisfaction of Empower; d. 240 or 120 volt, 50 or 60 cycle single phase at 3 pin general purpose outlets at suitable locations; e. Suitable dry lockable storage space for the storage of machinery, equipment, materials and tools; f. Suitable rooms on or adjacent to the Site with adequate air conditioning, lighting, washing, toilet and drinking water facilities for the use of Empower’ personnel or representatives; and/or g. Lifting machinery or devices, timber, planking, strutting, cement, fuels, water, gas etc. 5.5 The Customer shall upon Empower’ request furnish to Empower sufficient information which, in Empower’ reasonable opinion, will enable the Services to be carried out forthwith and without interruption. The Customer shall be responsible for and bear the cost of any modification to the scope of the Services arising from any discrepancy, error or omission in any drawings, specification or other information supplied or approved by the Customer. 5.6 All such assistance to be provided by the Customer under this Clause 5 or in general shall be at the Customer’s sole cost and expense. 5.7 Nothing in this Agreement shall relieve the Customer from its obligations to perform normal day to day maintenance on the Equipment as per the Operator’s Manuals supplied by the manufacturer and/or Empower including but not restricted to normal cleaning procedures, checks and adjustments designed for operational use. 5.8 During the continuance of this Agreement, the Customer shall not carry out or attempt to carry out modifications to, repair of, experiments on, or maintenance of the Equipment other than day to day maintenance and the Customer shall not permit any other person except Empower’ personnel or representatives to carry out such work unless prior written approval has first been obtained from Empower.
6 Replacement and Spare Parts 6.1 In the case of Services for which an Additional Charge is payable by the customer for replacement of spare parts, title in such replacement or spare parts shall pass to the Customer only upon full payment of the Additional Charge. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of replacement spare parts shall pass to the Customer as soon as they are delivered to the Customer’s designated premises. 6.2 Where parts of the Equipment have been replaced by or upon the instruction, recommendation or direction of Empower or otherwise, title in the replaced parts will pass to Empower upon removal from the Equipment. 6.3 Empower may from time to time require the Customer to purchase and store at the Site such spare parts as Empower considers necessary for the provision of effective Services. 6.4 Empower will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of the failure of the Customer to comply with clause 6.3. 6.5 Save as aforesaid, the property of and risk in the Equipment is not affected by the provisions contained in this Agreement.
7 Payment, Charges and Fees, etc. 7.1 The Customer shall pay all Fees at the rate and in the manner specified in the Accepted Estimate. 7.2 The Customer shall pay the Fee, all Additional Charges and any cost wherever and howsoever incurred on the date of Empower’ invoice. 7.3 If the Customer fails to make full payment on the due date, then without prejudice to any other right or remedy available to Empower, Empower shall be entitled to: a. terminate the Agreement or suspend any further Services or other obligations to the Customer under the Agreement (without being liable to Customer for any losses so caused); b. at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract or Accepted Estimate between the Customer and Empower, including but not limited to deposits or security payments, towards the payment of the relevant invoice; and/or c. charge the Customer interest on the amount unpaid on a daily basis at the rate of per cent (2%) per month from the due date until payment in full is received by Empower. 7.4 The Customer shall not be entitled to withhold from, set off against or otherwise reduce any payments due to Empower unless agreed in writing by Empower. 7.5 Empower shall be entitled to adjustment of the Fees and Additional Charges (to be mutually agreed in writing) in the event of changes in law or engineering standards applicable to or affecting the Equipment and/or Services after the execution of the Agreement. 7.6 Customer upon available methods of payment at the time of payment, may elect to make such payments by way of (chequing) bank account or credit card. If the customer has elected to use to pay by pre-authorized payments, customer must attach an unsigned sample cheque for such account to this Agreement. Customer authorize Empower to debit customer selected bank account or credit card account, as applicable, on the dates and in the amounts set out in the Accepted Estimate above, for the purpose of making payments due under this Agreement. From time to time the monthly pre-authorized debit (PAD) may be adjusted to include unpaid balances or credits including, but not limited to, returned payment fees and late payment fees. There will be no prenotification for these adjustments. Empower will provide customer 30 days advance notice of any other change in the amount or the payment date. If customer wish to change the amount of PAD customer may contact Empower by phone or in writing. Customer warrants and guarantees that all persons whose signatures are required to sign on the above account have signed this Agreement. Customer acknowledges that (i) giving Empower this authorization is the same as delivering a notice to customer Financial Institution, and (ii) the Financial Institution is not responsible for verifying that any debit is made in accordance with this authorization terms. Customer undertakes to inform Empower , in writing, of any change in bank or credit account information at least 5 days prior to the next payment due date. This authorization may be cancelled at any time by customer upon 30 days’ written notice to Empower, but cancellation does not affect customer obligation to continue to make payments under the Agreement.
8 Required Tools: Empower shall provide all the necessary tools, equipment, testing and diagnostic apparatus which Empower requires in order to carry out the Service unless otherwise agreed.
9 Customer Records & Service Reports 9.1 The Customer shall keep such records relating to the use and performance of the Equipment as may be directed by Empower from time to time. 9.2 The Customer shall permit Empower to have access to such records at all reasonable times, including all periods during which the Services are being performed or preparations are being made for the Services to be performed.
10 Intellectual Property Rights & Confidentiality 10.1 All intellectual property rights in all materials (whether in hard copy or electronic form) which Empower creates or supplies to the Customer in the course of performing the Services under this Agreement will, as between the Parties, be owned by Empower. 10.2 The Customer acknowledges the confidential nature of, and the technology and design of the replacement parts and spare parts for the Equipment and items associated with the Equipment including, but not limited to, documentation, forms, trade marks, instructions, operating manuals and other information. 10.3 The Customer shall not, without Empower’ prior consent in writing, copy or cause to be copied or disclosed any details of such technology, design, procedure or items to a third party. 10.4 The Customer may only make use of such details to the extent necessary to enable the Equipment to be used in a manner reasonably contemplated by Empower. 10.5 The Customer may only disclose such details to those of its employees by whom it is required to enable the Equipment to be used in a manner reasonably contemplated by Empower. 10.6 The Customer acknowledges that any discoveries, inventions, patents, designs or other rights arising directly or indirectly out of or in the performance of this Agreement are the property of Empower. 10.7 The Customer’s obligations under this clause 10 shall survive the termination of this Agreement. 10.8 The Customer is responsible for the security of its proprietary and other classified information. The Customer undertakes to indemnify Empower against all claims brought by any party for loss or damage to such information howsoever caused. 10.9 Other than as specifically provided for in this Agreement, nothing in this Agreement assigns, transfers or grants a licence to a Party over or in relation to pre-existing intellectual property rights owned by the other Party, Empower’ supplier or a third party. 10.10 Each Party agrees not to, and shall ensure that its employees, agents and advisors do not, disclose to third parties, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including information not generally known to the public, such as without limitation technical, development, marketing, sales, operating, performance, cost, know-how, business and process information or computer programming techniques), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) as required by applicable law or regulation or pursuant to a court order or direction of any government authority or regulatory body or stock exchange; or (iii) where the information is already known to, or obtained by independent means, or independently developed, by the recipient, or is already in the public domain through no fault of the recipient.
11 Liability of Parties 11.1 The Customer shall keep Empower, its personnel and agents fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by the Customer, its employees, agents or servants, and shall pay to Empower all reasonable costs, charges and losses sustained or incurred by Empower as a result of Empower being prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of the Customer, its employees, agents or servants. 11.2 Except as expressly provided in this Agreement, all terms, conditions, warranties, undertakings or representations whether express, implied, statutory or otherwise relating in any way to the Services or to this Agreement are excluded. Without limiting the generality of the foregoing, Empower shall not be under any liability to the Customer for any loss of profit (actual or anticipated), loss of use, loss of production (including loss of hydrocarbons), loss of contracts, loss of opportunities, loss of revenue, cost of capital, costs of replacement, loss of goodwill, loss of reputation, loss of information or data, loss from any third party contracts, loss due to business interruption, loss of interest, loss of power, cost of purchased or replacement power, contractual claims from third parties or any indirect, incidental, special or consequential losses or damages arising from or in connection with its performance or non-performance under this Agreement and whether based upon contract, tort, or any other legal theory. This Clause 11.2 shall apply to the benefit of Empower’ personnel, Empower’ affiliates and Empower’ subcontractors.. 11.3 Notwithstanding any other provision of this Agreement Empower’ total cumulative liability for any act or omission, whether in contract, tort (including negligence or strict liability) or any other legal or equitable theory during the Term of this Agreement shall not exceed in the aggregate, 10% of the Fee payable under this Agreement during the preceding one (1) year. This Clause 11.3 shall apply to the benefit of Empower’ personnel, Empower’ affiliates and Empower’ sub-contractors.
12 Warranties 12.1 Empower warrants that: a. it will provide the Services in a proper, workmanlike and professional manner at all times; b. it will exercise the reasonable standards of skill, care and diligence in the performance of the Services; c. it will retain a sufficient number of personnel with the expertise required to provide the Services; and d. its personnel possess the required skills and experience required to provide the Services. 12.2 The above warranties shall not replace or supersede the warranty applicable to the Equipment as specified in any sale and purchase mentioned in Accepted Estimate, In accordance with Clause 4 (Exclusions & Additional Services) 12.3 Any extended labour warranty provided by Empower requires annual preventative maintenance performed by Empower or any other authorized dealers as specified by the manufacturer. Empower may request written documentation showing the annual preventative maintenance. The Customer will be responsible for payment due to the lack of annual maintenance or failure to provide proof of annual maintenance. 12.4 Any extended warranty is provided only to the original owner and his or her spouse of the residence where the Equipment is originally installed and this warranty is not transferable.
13 Force Majeure 13.1 Empower shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Empower’ obligations in relation to the Services, if the delay or failure was due to force majeure. For the purposes of this clause, force majeure shall mean any unforeseen event beyond the reasonable control of Empower such as, but not limited to any act of God, act of government or any authorities, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events. If any delay in performing, or any failure to perform the Agreement is caused by the delay of a subcontractor of Empower, and is beyond the control and without the fault or gross negligence of Empower, Empower shall incur no liability for such delay. 13.2 If such delay or failure continues for at least one (1) month, the other party may terminate this Agreement immediately with written notice. In such event, the Customer shall pay Empower a reasonable sum in relation to Services already rendered and costs and expenses incurred prior to termination.
14 Termination and/or Suspension of Services 14.1 In addition to Empower’ right to terminate the Agreement under Clause 7.3, Empower shall be entitled to (i) terminate the Agreement or suspend any further Services under the Accepted Estimate without any liability to the Customer, and (ii) demand that the Fee, Additional Charges or balance thereof shall become immediately due and payable notwithstanding any previous Agreement or arrangement to the contrary, and (iii) retain any security given or monies paid by the Customer and apply the said security or monies against the assessed loss and damages, if any, suffered by Empower, in the event that: a. the Customer is in breach of the Agreement; or b. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver or manager appointed over its affairs or have an application made to court for the appointment of a judicial manager or be placed under a judicial management order; or c. an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer; or d. the Customer ceases, or threatens to cease, to carry on business; or e. there is a change in control of the Customer which in the reasonable opinion of Empower adversely affects the position, rights or interests of the Customer. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of Agreement, ownership of shares, or otherwise howsoever); or f. in the reasonable opinion of Empower, there occurs a material change in the financial position of the Customer which is likely to affect the Customer’s ability to perform its obligations under the Agreement; or g. Empower reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly. 14.2 Termination of the Agreement by Empower shall not discharge the Customer from any existing obligation accrued due on or prior to the date of termination. 14.3 The rights and remedies granted to Empower pursuant to the Agreement are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
15 Returns 15.1 No items will be accepted for return without prior written authorization.
16 General 16.1 Empower may perform any of its obligations or exercise any of its rights hereunder by itself, provided that any act. The Customer shall not assign any of its rights or obligations under the Agreement without the prior written consent of Empower, such consent to be signed by its authorised representatives. Any attempted delegation or assignment shall be void. Empower may sub-contract the performance of this Agreement or any part of this Agreement without obtaining the prior consent of the Customer. 16.2 The fulfillment of the Agreement on Empower’ part is subject to the proviso that this shall not be prevented by impediments on the grounds of national and international legal requirements. 16.3 Any notice required or permitted to be given by either Party to the other under the Agreement shall be in writing and signed by the authorised representatives of the Party addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the Party giving the notice. Notices may be delivered by hand, or by prepaid registered post or by facsimile or by email and shall be deemed to have been served: (i) if by hand, at time of delivery; (ii) if by prepaid registered post, 3 working days after posting; (iii) if by facsimile or email, on the date printed on the facsimile transmission report produced by the sender’s machine or on email 16.4 No waiver by either Party of any breach of the Agreement by the other Party shall be considered as a waiver of any subsequent breach of the same or any other provision. If either Party delays, neglects or chooses not to enforce its right under the Agreement, it shall not affect its right to do so at a later date. 16.5 If any provision of the Agreement or these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part such provision shall be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability and the validity of the other provisions of the Agreement and these Conditions and the remainder of the provision in question shall not be affected but shall remain in full force and effect. 16.6 No terms shall survive the expiry or termination of the Agreement unless expressly provided. 16.7 this Agreement is the entire Agreement between the Parties and may not be changed unless agreed in writing by properly authorised representatives of both Parties. 16.8 The relationship between Empower and the Customer is one of independent contractor and nothing in this Agreement shall be construed as creating any relationship of partnership, employment, joint venture or agency between Empower and the Customer. 16.9 Save for Empower, the Parties do not intend that any term of the Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act of Canada or otherwise, by any person who is not a party to the Agreement. 16.9 Any suits arising from the performance or non-performance of this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose.
17. Applicable Law and Dispute Resolution 17.1 The Agreement (including these Conditions) shall be governed by and construed in accordance with the laws of Province of Ontario and federal laws of Canada applicable therein. 17.2 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations between representatives of the Parties, the dispute shall be referred to the management of each Party who will meet in good faith in order to try and resolve the dispute. 17.3 All negotiations connected with the dispute will be conducted in complete confidence and the Parties undertake not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality and such negotiations shall be without prejudice to the rights of the Parties in any future proceedings. 17.4 In the event any such dispute is unresolved after thirty (30) days of the commencement of such negotiations referred to in Clause 17.2, the Parties agree to seek to resolve the dispute or controversy through mediation before pursuing any other proceedings. Nothing herein shall preclude any Party from seeking injunctive relief in the event that the Party perceives that without such injunctive relief, serious harm may be done to the party. Any Party to the dispute may serve notice on the others of its desire to resolve a particular dispute by mediation. The mediator shall be appointed between the Parties or, if the Parties cannot agree within five days after receipt of the notice of intention to mediate. The mediation will be held at Toronto. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the Parties. If the dispute has not been resolved within thirty days of the notice of desire to mediate, any Party may terminate the mediation and proceed to arbitration as set out below.Subject to the mediation provisions set out above, if any dispute or controversy occurs between the Parties relating to the interpretation or implementation of any of the provisions of this Agreement, the dispute will be resolved by arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. [The arbitration shall be conducted by a single arbitrator.] The arbitration shall be held in Toronto. The arbitration shall proceed in accordance with the provisions of the Arbitration Act Ontario. The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties. The language to be used in the arbitration proceedings shall be English.