Terms of Consulting Services

Last Updated October 17, 2023.

THESE TERMS OF CONSULTING SERVICES (“Agreement”) are legally binding and apply to any persons (“Client”) that receives consulting services (“Services”) from Carbon Wise Consulting Inc. (“Service Provider” and together with Client, “Parties”) after receiving notice of this Agreement. The Client will be deemed to have agreed to and accepted this Agreement immediately upon the earlier of: (a) expressly agreeing to accept this Agreement via an online interface adopted by the Service Provider for such purpose, (b) 7 days after the Client receives a copy of this Agreement or notice of existence and an easily accessible form of this Agreement, or (c) directing the Service Provider to provide Services after receiving a copy of or becoming aware of this Agreement. For good and valuable consideration, the receipt and sufficiency of which the Parties hereby expressly acknowledge, the Parties agree as follows:

1. Services and Scopes of Work

1. Services.  The Service Provider will provide the Services as the Client requests, and the Service provider accepts, during the Term, in exchange for the Fees.
2. Scope of Work.  The Service Provider will consult with the Client to determine what Services the Client needs and prepare a Scope of Work (“Scope of Work”). The Scope of Work will set out in reasonable detail:
1. a description of the Services;
2. the associated Fees;
3. if any deposit is required;
4. the dates, locations, and timelines for performance of the Services;
5. any other additional details and conditions relevant to the Services; and
6. the number, length, date, time and frequency of meetings reasonably required in order for the Parties to facilitate completion of the Scope of Work and for the Parties to fulfill their obligations pursuant to section 5 hereof.
3. Hourly Services Where Scope Unclear.  The Service Provider need not prepare a Scope of Work where the scope of Services required is not yet clear, and may proceed by providing Services on an hourly basis upon notice to the Client that Services will be provided on an hourly basis, and instructions from the Client to proceed.
4. Format of Scopes of Work.  Any Scope of Work may be in the form of an email, PDF document, web page or section of a web page, word document or other written format as determined by the Service Provider in its sole discretion.
5. Acceptance.  The Client will be deemed to have accepted any Scope of Work, or any amendment thereto, upon the earlier of: (i) the Client confirming acceptance orally or in writing; (ii) by proceeding to instruct the Service Provider to provide the Services after receiving a copy of any such Scope of Work in any written format including a link; or (iii) accepting a Scope of Work via any web interface adopted by the Service Provider setting out available services and describing the price and included services thereof. Once accepted by the Client, the Scope of Work will be governed by and form part of this Agreement.
6. Conflict.  If there is a conflict between the Scope of Work and this Agreement, the Scope of Work will govern. The Service Provider will not be deemed to have accepted any Scope of Work or amendment thereto unless the Service Provider accepts such offer in writing in its sole discretion.
7. Amendments to Scope of Work.  Either Party may propose an alteration to any Scope of Work in writing in accordance with section 3 hereof.

2. Fees and Expenses: Payment Terms

1. Fees.  The Service Provider will set out the cost of the Services in the Scope of Work (“Fee”).
2. Changes to Fees.  The Client understands and agrees that the Fee provided to the Client in the Scope of Work is an estimate only, and calculated carefully based on Client provided information. If the Client or anyone acting on the Client’s behalf misrepresents the scope of the Services required, or the complexity of the Services that the Client is seeking, the Service Provider may adjust the Fee in its sole discretion to account for the increase or decrease in scope or complexity of Services actually performed and that the Client instructed the Service Provider to perform. The Service Provider will notify the Client of any Fee amendment required prior to delivering any Services outside of the initial Scope of Work.
3. Deposit.  The Service Provider may require the Client to pay a reasonable Deposit in a sum determined by the Service Provider in its sole discretion (“Deposit”) prior to commencing any Scope of Work.
4. Invoices.  In the case of a Deposit, before commencing any Scope of Work, and otherwise at the completion of any Scope of Work, or at such intervals or on such project milestones as determined in the Service Provider’s sole discretion, the Service Provider may Invoice the Client for the relevant Fees (“Invoice”).
5. Payment Terms.  Invoices will be issued on due on receipt payment terms unless otherwise specified on the Invoice.
6. Payment Methods.  The Client may pay the Service Provider on such payment methods as are set out in any Invoice, which payment methods may be selected or excluded in the Service Provider’s sole discretion.
7. Taxes.  Unless otherwise stated in an Invoice, Fees are exclusive of taxes and disbursements the Service Provider will incur on the Client’s behalf in performance of the Services, or any additional Fees the Service Provider may charge pursuant to the terms of this Agreement, and such costs will be charged in addition to the Fees. Goods and services tax (5%) is payable on all Services and provincial sales tax (7%) is payable as applicable. If these tax rates change during the course of this Agreement, the Service Provider will charge the updated tax rate. If taxes or other fees apply to any Clients operating out of British Columbia, the Service Provider’s Invoices will conform to applicable tax laws in the appropriate jurisdiction.
8. Disbursements.  The Service Provider will provide to the Client any receipts or supporting documentation respecting any disbursements at the Client’s request.
9. Payment Plans.  The Client may request, and the Service Provider will consider in good faith and ultimately determine in its sole discretion whether to agree to provide any Services and receive the associated Fees other than as set out herein.
10. Interest.  If any Invoices become overdue by 30 days or more, the Service Provider will charge interest on the Invoice at a cumulative interest rate of 2% on the total outstanding balance (inclusive of taxes and disbursements and any accrued and unpaid interest) per month, calculated daily.
11. Delays, Suspension or Termination.  The Service Provider may in its sole discretion extend any timeline for completion of the Services, otherwise suspend provision of the Services, or terminate this Agreement, immediately if Fees are not paid as and when due in accordance herewith. Any amounts already Invoiced or properly due and payable hereunder will remain due and payable following any such delay, suspension or termination.

3. Changes to Scopes of Work

1. Nature of Energy Model Projects.  Initial energy model designs are often revised and improved upon over time as discussions between Service Provider, Client, and the Client’s contractors and other consultants, which can lead to changes to a Scope of Work. The Parties agree and acknowledge that the nature of energy model projects will require flexibility, communication and cooperation to ensure the project(s) are completed to the extent possible on time, on budget and to specifications. The Parties will to the extent commercially reasonable ensure that initial discussions and consultations fully investigate the proposed projects and the energy model design components thereof to avoid the need for changes to any initial Scope of Work.
2. Requesting a Change in Scope of Work.  Either Party may propose an additional Scope of Work or amendment to any Scope of Work. Amendments and new Scopes of Work will be offered and deemed accepted in accordance with section 1 hereof.
3. Content of New or Amended Scope of Work.  In addition to the content of any Scope of Work required in section 1(b) above, any proposed new or amended Scope of Work will include:
1. any necessary variations to the Fees and additional disbursements or expenses, if any;
2. the likely effect of the change on the timing of the Services; and
3. any other material impact the change might have on the performance of this Agreement.
4. Default Billing Method.  If the Client directs the Service Provider to provide any Services outside of any agreed Scope of Work, the Service Provider will bill time hourly at its then applicable hourly rates for the applicable Service Provider staff member, unless a fixed rate Fee is agreed to in a new or amended Scope of Work.
5. Delays, Suspension or Termination.  Change requests that alter the foundation of the Scope of Work can be very costly, add significant delays, and potentially include Services outside the scope of expertise or competency of the Service Provider. The Service Provider may delay any timeline in a Scope or Work, suspend the Services, terminate this Agreement or charge additional Fees in the Service Provider’s sole direction, upon receipt of a proposed new or amended Scope of Work or request therefor by the Client that materially impacts its ability to perform the originally agreed to Services.

4. Term

1. Term.  This Agreement shall commence as of the Effective Date and shall continue thereafter until both the completion of Services under any Scope of Work entered into hereunder and payment of all Fees and any other amounts due to the Service Provider hereunder are provided, unless sooner terminated.
2. Repeat Clients.  Clients that have retained the Service Provider to provide Services and all Scopes of Work thereunder are completed and Fees and other amounts paid in relation thereto, and the Client instructs the Service Provider to provide additional Services, the Client will be deemed to have entered into a new agreement with the Service Provider as a Repeat Client.

5. Communication

1. Effective, Polite and Timely Communication.  It is important for the Parties to maintain open, clear, respectful and timely communication with each other in order for each Party to fulfill their obligations and exercise their rights hereunder.
2. Service Provider Obligations.  The Service Provider will keep the Client informed of the status of the Scope of Work and will promptly notify the Client of any major developments. The Service Provider will consult with the Client whenever appropriate.
3. Client Obligations.  The Client will:
1. notify the Service Provider in advance of any vacation or leave of the Client’s instructing individual or primary contact person;
2. notify the Service Provider immediately of any emergency which may impact the Client’s ability to fulfill its obligations hereunder;
3. respond to Service Provider emails, phone calls, text messages, and other communications in a timely manner;
4. provide the Service Provider with complete and accurate information;
5. provide the Service Provider such documents, data, information and other materials as the Service Provider reasonably requests; and
6. assist the Service Provider in finalizing all designs, and making other selections required to complete the Services also in a timely manner.
4. Instructing Individuals.  If there is any individual the Client would like the Service Provider to take instructions from on the Client’s behalf, the Client will inform the Service Provider in writing.
5. Contact Information.  The Parties will promptly notify the other Party as soon as practicably after either Party changes their primary contact person, contact information or other personal information (e.g. name, instructing individual).
6. Virtual Meetings.  To mitigate unnecessary expense, all meetings will be held virtually, unless otherwise agreed by the Parties or specified in any Scope of Work.
7. Direct Communication.  The Parties will at all times communicate directly with one another, or in other words, no Party will communicate with or attempt to communicate with the other Party’s contractors, consultants or employees or staff other than the instructing individual or Party representative, unless the other Party expressly permits a Party to communicate with directly such person.

6. Liability and Insurance

1. Industry Standards.  The Service Provider will perform the Services in accordance with industry standards.
2. No Representations or Warranty. Unless otherwise specified herein, the Service Provider makes no other conditions, warranties, or other terms that may have effect between the Parties, and the Service Provider expressly disclaims any representations or warranties respecting the Services, including representations or warranties of merchantability or fitness.
3. Insurance.  Each Party will ensure it obtains, and will ensure its contractors and other consultants obtain, and maintains in force during the Term and for a period of 2 years thereafter such insurance policies in such amounts of coverage and with such coverages as would be obtained by a prudent operator of the same or similar business or a prudent owner, tenant or occupant of the subject property, as applicable.
4. Consequential Damages.  THE SERVICE PROVIDER WILL NOT BE LIABLE TO THE CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL RELATING TO OR ARISING FROM THIS AGREEMENT.
5. Limitation of Liability.  THE SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED 50% OF THE TOTAL AMOUNT PAID OR PAYABLE TO THE SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE 1 YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CLEINT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
6. Indemnification.  Each of the Parties will indemnify and hold harmless the other Party and their respective officers, directors, employees, agents, successors, assigns, contractors and other representatives (each, “Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interests, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) arising out of or in connection with any third-party claim, suit, action or proceeding (each, “Third Party Claim”) relating to any actual or alleged (i) breach of this Agreement by a Party; (ii) breach of applicable law by a Party; or (iii) any gross negligence or willful misconduct of a Party whether by act or omission.

7. Attendance on Site

1. Entry On Property.  In order to provide the Services, the Service Provider may need to enter into the Client’s private or public property (“Site”). The Client expressly grants to the Service Provider and its staff and contractors an irrevocable license to enter the Site on reasonable notice as is reasonably required to provide the Services during the Term. The Client will arrange for access of the Service Provider to the Site at the date and time agreed between the Client and Service Provider.
2. Safety.  The Client will ensure that the Site is safe and free of any hazard or risk to the Service Provider or any of its staff or contractors. The Client will ensure that any products or materials required in order for the Service Provider to perform the Services are safe to use, located at the Site at the time of visitation, and the Site and such products or materials are accessible at the date and time of such visitation.
3. Delays, Suspension and Termination.  The Service Provider may delay the timeline for, or suspend, provision of the Services or terminate this Agreement, or charge a reasonable additional Fee (including travel expenses and an estimate of time that the Service Provider would have spent on providing Services had the Client complied with section 7(a) or 7(b)), in the Service Provider’s sole discretion, if the Client does not comply with section 7(a) or 7(b).

8. Confidentiality

1. Confidentiality.  During the Term a Party may receive (“Receiving Party”) Confidential Information relating to the other Party (“Disclosing Party”). The Service Provider understands that any unintended disclosure of Confidential Information could be detrimental to the Client. While the Service Provider cannot guarantee that there will be no leaks of information, the Service Provider will use best efforts to:

1. not disclose the Confidential Information to any third parties unless authorized by the Client;
2. not copy or duplicate the Confidential Information unless specifically directed by the Client to do so;
3. not use the Confidential Information for any purpose except as expressly authorized by the Client; and
4. inform the Client immediately if the Service Provider becomes aware of any unauthorized use or disclosure of Confidential Information.

1. Disclaimer re Digital Documents.  The Service Provider may exchange electronic versions of documents and emails with the Client and store data using commercially available software. The Service Provider does not guarantee that all communications and documents will always be received, or that such communications and documents will be virus free. The Service Provider makes no warranty or representation respecting the security of any such electronic communications or documents, nor the online storage, processing, and transmission of the same. The Client consents to the exchange of unencrypted electronic communications and use of the Service Provider’s data communication and storage technology, and the Client assumes and accepts the risk of using the same.
2. Confidential Information.  In this section 8, “Confidential Information” means any data, information, documents or other materials exchanged between the Parties except where such data, information, documents or other materials are:
1. in the public domain by reason other than a breach of this Agreement by a Party or a Person to whom a Party has disclosed Confidential Information, provided however that specific items of information shall not be considered to be in the public domain merely because more general information is in the public domain;
2. to prevent a Party from disclosing such Confidential Information to any technical, financial or other professional consultants or advisors of the Party, or third-party service providers which require such information to provide their services to the Party, or to a bank or other financial institution from which the Party obtains or is attempting to obtain financing;
3. to prevent a Party from disclosing such Confidential Information as is necessary in connection with any dispute resolution commenced pursuant to this Agreement or any litigation commenced in respect of this Agreement;
4. to prevent the Party from disclosing in general terms this Agreement to its partners, employees, representatives, contractors or agents provided that each of the Parties shall not distribute or provide copies, either electronically or physically, of this Agreement or any other Confidential Information to its partners, employees, representatives, contractors or agents which is commercially sensitive or contains financial information; or
5. where the Parties agree in writing to disclosure of certain Confidential Information.

9. Client’s Representations and Warranties

1. The Client represents and warrants to the Service Provider with the understanding that the Service Provider will rely on such representations and warranties in entering this Agreement and providing the Services that the Client:
1. has the full authority, right, power and legal capacity to enter into this Agreement;
2. any business and operations relating to the Services provided under this Agreement, including entering into the Agreement, have been and are being conducted in accordance with all applicable contracts, laws, rules, and regulations that affect the Client and its assets;
3. has performed in all respects, any obligations that are, as of the date of this Agreement, required to be performed by the Client pursuant to any agreement, contract, or commitment; and
4. entering into this Agreement and performing its obligations and exercising its rights hereunder will not constitute a breach of any agreements to which the Client is bound.

10. Termination

1. Termination for Convenience.  Either of the Parties may terminate this Agreement on 30 days’ prior written notice for any reason in their sole discretion, or earlier if the Parties agree in writing.
2. Termination for Breach.  Either Party may terminate this Agreement immediately if the other Party breaches a material term hereof and fails to remedy any such breach within 10 business days of receipt of written notice from the non-breaching Party setting out in reasonable detail the nature of such breach, or such longer period if the alleged breach cannot be cured in such period in a commercially reasonable time frame provided that the Party alleged to have breached the Agreement diligently and without delay pursues remedy of such breach.
3. Termination for Non-Payment.  Notwithstanding section 10(b) hereof, the Service Provider may terminate this Agreement immediately and without further notice upon non-payment of any Fees or other amounts when due hereunder.
4. Termination by Service Provider.  The Service Provider may terminate this Agreement on 5 business days’ prior written notice if:
1. the Client does not cooperate with the Service Provider in a professional and ethical manner; or
2. the Service Provider feels that the Service Provider’s continued relationship with the Client would be unlawful or unethical.
5. Effect of Termination.  If this Agreement is terminated or the Term expires, the Service Provider will be immediately entitled to retain any Deposit, and all Fees and other amounts due will remain owing hereunder. The Service Provider may retain any work product the Services comprise as security for payment of any outstanding Fees or other amounts owed by the Client hereunder, whether or not such work product relate to Fees or other amounts already paid or yet unpaid.  Upon termination or expiry hereof, the Service Provider will prepare a final Invoice for any outstanding Fees or other amounts.

11. Intellectual Property

1. Ownership of Intellectual Property.  All right, title and interest in and to any copyright works, trade-marks, industrial designs, design rights, inventions (whether patentable or not), unpublished patent applications, inventive ideas, discoveries, innovations, developments, or improvements thereto, any deliverables contained in the Services, and any other intellectual property rights relating to any of the foregoing, whether registered or non-registered, whether or not reduced to written form or practice, the Service Provider creates or contributes to creation of in providing the Services remain the Service Provider’s sole exclusive property (“Intellectual Property”). The Service Provider waives no moral rights in and to any Intellectual Property. The Client will have no interest in or to any Intellectual Property notwithstanding that the Client may have in part conceived, developed, authored, created or contributed to the creation or improvement thereof, except as expressly provided for in section 11(d) hereof.
2. Client IP.  For greater certainty Intellectual Property does not include any intellectual property which the Client owned prior to commencement of the Services nor that intellectual property which the Client has wholly created prior to commencement of providing the Services, or otherwise any intellectual property which the Service Provider did not participate in the creation or improvement of regardless of whether such property is used in performance of the Services (“Client IP”), including the extent to which any such Client IP is incorporated into the Intellectual Property.
3. Grant of License.  The Services Provider grants the Client a non-exclusive, royalty-free, irrevocable, non-sublicensable, non-assignable, non-transferrable, worldwide license to use the Intellectual Property solely for the purpose of using the Intellectual Property in relation to the project and not for publication, re-publication, editing or other distribution. The Client grants to the Service Provider a non-exclusive, royalty free, irrevocable worldwide license to the Service Provider to use any Client IP provided to the Service Provider in relation to the Services solely for the purpose of providing the Services.

12. General

1. Legally Binding Agreement. This a binding legal Agreement. It’s important that the Client reviews and understands the terms before the Client signs.
2. All Terms Covenants. Any term herein which requires a party to do or refrain from doing something are covenants, subject to any efforts or limitations ascribed thereto. All covenants herein are material terms hereof.
3. Amendment.  The Service Provider may update the terms of this Agreement at any time and in its sole discretion by providing notice of a change to this Agreement to the Client. For greater certainty, notice will be deemed to have been given to the Client immediately upon publication of the amended Agreement on the Service Provider’s website. The amendments will become valid and binding on the Client within 7 days of publication.
4. Assignability.  The Client may not assign, novate, subcontract, or otherwise transfer or dispose of their rights or obligations under this Agreement without the Service Provider’s consent. The Service Provider may assign this Agreement in its sole discretion.
5. Canadian Anti-Spam Legislation. The Service Provider may occasionally send the Client commercial electronic messages (“CEMS”), including any social media updates, invitations, inquiries, etc. By entering into this Agreement, the Client consents to receiving CEMs from the Service Provider unless the Client withdraws consent. The Client may withdraw consent at any time.
6. Governing Law and Forum.  This Agreement will be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein. The Client attorn to the courts of British Columbia sitting in the Lower Mainland, and the Service Provider may select the particular forum in the Service Provider’s sole discretion.
7. Dispute.  If any dispute arises between the Client and Service Provider, both Parties agree to first attempt to resolve the dispute in good faith. If these resolution attempts fail, the Parties will then submit the dispute to a mutually agreeable mediator. If the Parties fail to reach mutually agreeable resolution via mediation, either Party may submit such dispute to arbitration, which will take place in Vancouver, British Columbia and the decision of a mutually agreeable arbitrator will be final and binding on the Parties.
8. Entire Agreement.  This Agreement, inclusive of any Scopes of Work represent the full understanding between the Parties and will supersede all previous oral or written agreements.
9. Independent Legal Advice. The Client acknowledges that the Client has had the opportunity to obtain independent legal advice and confirm by execution of this Agreement that the Client either has done so or are waiving the Client’s right to do so.
10. Joint and Several Liability. If the Client is comprised of more than one legal person, all such parties’ liability is joint and several.
11. Non-Waiver.  No action or failure to act by either Party will constitute a waiver of any right or duty afforded under this Agreement, nor will any such action or failure to act constitute an approval of any breach thereunder, except as agreed to in writing.
12. Non-Exclusivity.  The Client acknowledges that the Services Provider is providing Services on non-exclusive basis. Nothing in this Agreement will be interpreted as creating an exclusive arrangement between the Parties.
13. Public Disclosure.  The Service Provider is proud of building relationships with clients. The Service Provider may use photos, videos or descriptions of the work with the Client in professional portfolios or marketing materials. If the Client would prefer that the work not be disclosed publicly, the Service Provider shall be informed in writing.
14. Successors and Assigns.  This Agreement is binding and of benefit to the Parties respective executors, administrators, successors, assigns, heirs, and other legal representatives, as the case may be.
15. Survival.  Clauses of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
16. Time is of the Essence.  Time is of the essence in this Agreement and will remain so notwithstanding ay extension or grant of additional time beyond the timelines set out by either Party.
17. Counterparts.  This Agreement may be executed in any number of counterparts, each of which when executed and delivered will be considered an original, but all counterparts together will constitute a single Agreement.
18. Digital Signatures. The Service Provider may use digital signature software and services so that the Client can sign contracts electronically from anywhere in the world.

[End of Terms of Consulting Services]