General Contract Terms
These General Contract Terms for our Services state the conditions under which we agree to provide our Services to you.
Please read these General Contract Terms carefully. By indicating your acceptance of our Proposal by signing where provided, you are agreeing immediately upon said signature to the General Contract Terms as they appear below, and agree that you are legally bound by them, whether or not you have read them.
Words you need to understand
“Agreement” means any and all of the documents which you have signed or agreed to including the Proposal and any appendices thereto, any drawings and plans, any supplemental contractual documents, modifications or change orders and these General Contract Terms
“Client” or “you” means any client who has accepted a Proposal
“Company”, “we”, “us” or “me” means Focus Construction Inc.
“Services” means the labour and materials we agree to provide to you.
“Work” means the scope of work as set out in the appendices to the Proposal.
A. DURATION OF RENOVATION
The start date and the targeted completion date will be as specified in the Proposal. The Contractor shall not be responsible if the targeted completion date is is delayed due to causes outside of the control of the Contractor, including, but not limited to, delays in communication or decisions by the Client, change orders, the Client’s failure to make timely progress payments or to facilitate access by the Contractor to the subject property, unavailability or delayed availability of materials, delays in provision of permits, fire, adverse weather conditions and work stoppages. Any additional fees or charges incurred due to any delays as set out in this paragraph shall be solely for the account of the Client.
B. CONTRACTOR’S RESPONSIBILITIES - WHAT YOU CAN EXPECT OF US
I. QUALITY OF WORK
The Contractor will supervise and be solely responsible for all construction means, methods, techniques and procedures for the Work. Unless specifically agreed in writing, the Contractor will provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and services necessary for execution and completion of the Work. The Contractor warrants that all of the materials used in performing the Work will be new unless otherwise specified and that all Work will be of good quality and in conformance with applicable building codes and laws. The Contractor reserves the right to substitute a product included in the Proposal provided that the substitute is of equal or higher quality to the product being substituted. The Contractor will comply with all laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction over the performance of the Work. The Contractor will keep the Project free from the accumulation of waste and rubbish caused by the Work and, upon completion of the Work, will remove all its waste material from the Project as well as all of its tools, equipment and surplus materials.
II. SUBCONTRACTORS
The Contractor will have sole discretion as to who it hires for subcontracted Work (a subcontractor is defined to be any person or entity who has a direct contract with and authority from the Contractor to perform any portion of the Work), and shall be solely responsible for the conduct and performance of such subcontractors.
III. SUPERVISION OF CONTRACTORS
The Contractor shall supervise all trades and subcontractors involved in the Work. In the event that the Client requires the Contractor to work with a subcontractor of the Client’s choosing, the Contractor may require an additional fee for supervision and management. The Contractor may not be held responsible for any damages, lower quality work or delays caused by the Client’s chosen subcontractor.Any warranty of the Contractor does not include any work completed by the Client’s chosen subcontractor.
IV. ABSENCE OF LIENS
The Contractor will pay, in a timely manner, all subcontractors and material suppliers for their respective performance of any of the Work so as to prevent liens from being filed against the residence at which the Work is being performed. The Contractor will indemnify, defend and hold harmless the Client for any such liens that are filed against the property at which the Work is being performed, provided that the Client is not in default in the payment of any amounts due to the Contractor under this Agreement.
V. CONTRACTOR’S WARRANTY
The Contractor shall provide a warranty against all major defects in labour and materials provided by the Contractor for a period of one year from the completion of the Work. The Contractor will obtain for the Client’s benefit and assign to the Client all manufacturers warranties applicable to materials or equipment installed by the Contractor.This warranty excludes normal wear and tear including but not limited to caulking, paint and house movement, damage caused by the Client or the Client’s invitees and defects found in materials supplied by the Client or materials required by the Client to be used in the Work against the advice of the Contractor.
VI. INSURANCE
The Contractor has, and will continue to maintain, insurance coverage sufficient to protect the Client from the claims of workers under the Workers’ Compensation Act and other employee benefit acts for damages because of bodily injury, including death, and from claims for damages, other than to the Work itself, to property which may arise out of or result from the Contractor’s work under this Contract, whether such operations are conducted by itself or by any subcontractor or anyone directly or indirectly employed by the Contractor or any subcontractor. The Contractor shall obtain and maintain liability insurance sufficient to protect the Client against claims that arise from any operations under this Contract.
C. CLIENT’S RESPONSIBILITIES - WHAT WE CAN EXPECT OF YOU
I. TIMELY PAYMENT
The Client agrees to pay the Contractor the total price of the Agreement including any additional charges due to change orders or delays outside of the control of the Contractor in the manner set out under “Progress Payments” in the Proposal. Payments may be made by cash, cheque or etransfer. At the completion of the project, the parties shall have up to one month to agree upon a deficiency list which shall include all elements of the Work which have not yet been completed.The Client shall be entitled to hold back five thousand dollars ($5,000) (the “Holdback”) until the deficiency list has been addressed and the Contractor has certified the Work as complete. The Client shall be required to pay the Holdback within seven (7) business days of the Contractor’s certification as set out in section C.II below. The Contractor shall be entitled to certify the Work as complete once all tasks in the Work which are within the sole control of the Contractor have been completed. Nothing in this section shall be interpreted to relieve the Contractor of its responsibility to complete the Work in full when any said outstanding tasks are capable of being completed.
II. FINAL PAYMENT
Final payment for the unpaid balance of the Contract Price, including all retained amounts (if any) but excluding an amount equal to 100% of the estimated cost of the Contractor completing any nonconforming Work or punchlist items will be due and payable no later than seven (7) days after the date on which the Contractor certifies the Work as complete. Simultaneously with final payment, the Contractor will deliver to the Client a complete release of all liens which may have been filed and/or complete receipts and waivers of lien rights for all labor, materials and equipment for which a lien could be filed and the Contractor’s sworn construction statement verifying that all charges for labor and materials have been paid. Retained amounts for nonconforming Work will be paid to the Contractor upon completion of all remedial Work and punchlist items.
III. CONSEQUENCES OF A DEFAULT IN PAYMENT
If the Client fails to make any required payment for a period of seven (7) days after it is due, the Contractor may, upon two (2) additional days’ written notice to the Client, terminate this Agreement and require from the Client payment for all Work performed and for all materials furnished to the Project and for use of all construction equipment and machinery in the performance of the Work, including reasonable profit and damages applicable to the Work.
IV. PROMPT and RESPECTFUL COMMUNICATION
The Client agrees to respond to all requests for feedback or instructions within two days of such request unless otherwise advised by the Contractor. The Client acknowledges and agrees that they may receive a “Focus Imminent” decision request which requires their immediate response. The Client shall be responsible for any delays which result from a failure to provide feedback or make a decision in the time period required by the Contractor. The Client agrees to treat the Contractor and the Contractor’s agents in a respectful manner and to refrain from using abusive or hateful language.
V. ACCESS TO FACILITIES
The Client agrees to provide access to electricity and water and clean bathroom facilities at no additional charge to the Contractor.
VI. CO-OPERATION and FACILITATION
The Client shall allow reasonable access to the property at which the Work is being performed and facilitate any applications for permits, any official inspections and co-ordination with subcontractors.
VII. NO SOLICITATION or CIRCUMVENTION
The Client shall allow reasonable access to the property at which the Work is being performed and facilitate any applications for permits, any official inspections and co-ordination with subcontractors.
VIII. INSURANCE
If this is a contract for the renovation or repair of an existing structure or for the construction of a new structure, the Client will obtain and maintain property insurance upon the real property at the Project site in the amount of the full insurable value thereof. This insurance will include the interest of the Client, the Contractor, and any subcontractors involved in the Work and will insure against the perils of fire and extended coverage and shall include “all risk” insurance of physical loss or damage including, without duplication of coverage, theft, vandalism, and malicious mischief. Upon request, the Client will provide a certificate of this insurance to the Contractor.
IX. REPRESENTATIONS and WARRANTIES
The Client warrants that they are the owner of the property at which the Work is to be performed or that they have permission from the owner of the property to consent to the Work.
D. TERMINATION PROVISIONS
I. TERMINATION ON THIRTY DAYS’ NOTICE
The Contractor may terminate this Agreement on 30 days’ written notice to the Client. In the event of a termination under this section, the Contractor will determine the value of the work performed up to the effective date of the termination and shall either provide a partial refund of monies paid or request payment for work performed for which it has not been paid.
II. TERMINATION DUE TO MATERIAL BREACH
The Contractor may terminate this Agreement, immediately and without further notice, due to a material breach by the Client, such material breach to include, but is not limited to, failure to pay as agreed as set out in C.III above and the use of abusive or hateful language. In the event of a termination under this section, the Contractor may require from the Client payment for all Work performed and for all materials furnished to the Project and for use of all construction equipment and machinery in the performance of the Work, including reasonable profit and damages applicable to the Work.
III. TERMINATION DUE TO PERSISTENT BREACH
The Contractor may terminate this Agreement immediately and without further notice, due to a persistent breach by the Client of non-material terms, such persistent breach to include, but is not limited to, repeated failures to respond to requests for feedback or decisions in a timely manner, repeated requests to breach lawful regulations including the Building Code or repeated requests to use unsuitable or inferior quality materials. In the event of a termination under this section, the Contractor may require from the Client payment for all Work performed and for all materials furnished to the Project and for use of all construction equipment and machinery in the performance of the Work, including reasonable profit and damages applicable to the Work.
IV. TERMINATION BY THE CLIENT
Upon acceptance of the quotation and payment of the first payment of the contract price, the Client may only terminate this Agreement due to a material breach of this Agreement by the Contractor, provided that the Client has given written notice to the Contractor of said breach and the Contractor has not remedied such breach within thirty (30) days of the Client’s notice.
OTHER IMPORTANT TERMS
E. CHANGE ORDERS
Subject to the provisions of this Part E, the Work, Contract Price and targeted completion date may be modified only by a properly executed Change Order (a copy of the Change Order form was attached to the signed proposal). All Change Orders must be signed by the Client and the Contractor to be binding upon the parties.
F. ADDITIONAL CHARGES
The Contractor reserves the right to charge the Client for any increase in the cost of necessary supplies and materials for the Work which occurs during the execution of the Work as well as for the matters set out at A. above.
G. INDEMNIFICATION; PROTECTION OF PROPERTY AND PERSONS
The Parties will indemnify and hold harmless the other party its officers, directors, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including lawyer’s fees and court costs) which result from a breach or alleged breach of any representation or warranty of the either party (a “Claim”) in this Agreement or any intentional misconduct or negligence by either party or agents in performing their obligations under this Agreement. From the date of written notice from either party of any such Claim, the Parties shall have the right to withhold the continuation of Services or the payment for such Services under this Agreement. Both parties further agree to obtain, maintain and pay for such general liability coverage and endorsements as will ensure the provisions of this paragraph may be enforced.
H. CONFIDENTIALITY
It is anticipated that the Contractor (“Disclosing Party”) will disclose proprietary and confidential information that (a) is identified as proprietary and confidential at the time of disclosure or (b) can reasonably be regarded as confidential (“Confidential Information”). Confidential Information may include software programs, technical data, drawings, sketches, plans, customer information and business information of the Contractor. The Client (“Receiving Party”) shall maintain the secrecy and confidentiality of Confidential Information of the Disclosing Party by way of efforts at least equivalent to the efforts that Receiving Party normally applies to its own property that it maintains secret and confidential, but in any event using no less than a reasonable degree of care. The Confidential Information may be disclosed only for purposes of the joint activity with the Disclosing Party and only to the Receiving Party’s employees and subcontractors on a need-to-know basis.Confidential Information disclosed hereunder does not include: (a) information in Receiving Party’s possession before receipt from Disclosing Party other than through prior disclosure by Disclosing Party; or (b) is or becomes a matter of general public knowledge through no breach of this Agreement; or (c) is rightfully received by Receiving Party from a third party without an obligation of confidentiality.Upon termination of this Agreement, the Receiving Party shall (a) immediately cease using the Confidential Information, (b) promptly return to the Disclosing Party all tangible embodiments of the Confidential Information received from the Disclosing Party, and (c) promptly destroy all other copies. The confidentiality obligations of a Receiving Party under this Agreement shall continue in effect for a period of three (3) years after such return and destruction of Confidential Information.
I. FORCE MAJEURE
Neither party shall be responsible for any damages, delay in performance or failure to perform by the Contractor or the Client, if caused by any act or occurrence beyond its reasonable control such as embargoes, changes in government regulations or requirements (executive, legislative, judicial, military or otherwise), acts of war or terrorism, power failure, electrical surges or current fluctuations, lightning, earthquake, flood, the elements or other forces of nature, epidemics, pandemics or other public health emergency, delays or failures of transportation, or acts or omissions of telecommunications common carriers.
J. INTELLECTUAL PROPERTY
Any Intellectual Property which the Contractor or its employees or its permitted subcontractors invents, develops, designs, prepares, modifies, improves or works on in respect of the Project shall belong exclusively to the Contractor.
K. MARKETING AND PROMOTION
The Client agrees that the Contractor may erect a sign at the property during the duration of the Work and for thirty days following its completion. The Client further agrees take photographic and video images of the Work and use same for its marketing and promotional purposes with no compensation to the Client.
L. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. All disputes and questions whatsoever which shall arise between any of the parties in connection with this Agreement, or the construction or application thereof or any Section or thing contained in this Agreement or as to any act, deed or omission of any party or as to any other matter in any way relating to this Agreement, shall in the first instance be referred to a mediator to be determined by agreement between the parties and paid for equally by each party. The parties agree not to disparage each other publicly, including on social media or on review sites such as Google Reviews and Houzz and rather, use their best efforts to reach a resolution.
M. RESTRICTION ON ASSIGNMENT
Neither the Client nor the Contractor may assign this Contract without the express written consent of the other party.
N. ENTIRE AGREEMENT
This Agreement, including the Proposal, the General Terms of Contract and any schedules and agreed-upon change orders contains the entire agreement between the parties.
