SERVICE TERMS, RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
IN CONSIDERATION OF the mutual benefits and obligations set forth in this Agreement, including good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the company or individual identified in the submission/order request ("The Client”) and Lien-Pro by Priority Credit Management Corp. ("PCM") (individually a "Party" and collectively the "Parties" to this Agreement) agree as follows:
1. SCOPE OF SERVICE AND COST
1.1. PCM may perform the
services, and only the services, enumerated in the attached Schedule "A”
to this Agreement upon the request of the Client (the "Services”).
1.2. The Client acknowledges and agrees that the Services shall be performed only upon the terms and conditions contained in this Agreement, specifically including, but not limited to, any right to terminate the Services.
1.3. The Client authorizes PCM and its solicitors to perform the Services on the Client’s behalf and solely based up on the information provided to PCM by the Client.
1.4. The Client guarantees that all information provided to PCM, specifically including, but not limited to, all lien application(s), form(s) and all other communications, are correct.
1.5. The Client acknowledges and agrees that the Client shall pay to PCM the sum or sums defined in the attached Schedule "B” as the fee (the "Fee”) corresponding to the Services the Client requests and PCM agrees to provide.
1.6. Where indicated in this Agreement, or any schedule to this Agreement, where a fee is to be calculated based upon the amount of time spent by PCM, the fee will be calculated at the Hourly Rate defined in Appendix "A” of Schedule "B”, billed in15 minute increments. ("Billed Hourly”).
1.7. All disbursements incurred in providing any services, and specifically including the Services, shall be the responsibility of the Client and shall constitute a portion of the Fee and be subject to the same payment provisions as the Fee.
1.8. PCM shall be entitled to retain the Fee, or any portion of the Fee, if after the Fee has been paid, the Client cancels, withdrawals or indicates in any way an unwillingness to abide by this Agreement. If the Client cancels, withdraws or terminates the Agreement, the Client will be entitled to, and only to, a refund of any sum collected for expected disbursements that had not yet been incurred.
1.9. In the event that the Client does not pay to PCM any sum when due, interest shall be charged on the overdue amount at the rate of 24% per annum, calculated and compounded monthly.
1.10. PCM has no obligation to provide the Services while any portion of the Fee is past due, and in such an event the Client covenants and agrees that PCM is not liable for any loss or damage occasioned as a result of PCM’s refusal to provide the Services.
1.11. PCM has the right to suspend or terminate this Agreement by written notice to the Client if the Client is adjudged bankrupt or makes a general assignment for the benefit of creditors because of its insolvency or if a receiver is appointed.
1.12. PCM has the right to terminate this Agreement by written notice to the Client if the Client is not cooperating with PCM or at the sole discretion of PCM
1.13. If the Client requests that any tasks not included in the Services be performed by PCM, and if PCM agrees to perform the task, the fee for PCM’s so doing will be Billed Hourly (the "Additional Fee”). The Additional Fee is payable when an invoice is issued to the Client.
1.14. All fees listed in this agreement, or any Schedule to this Agreement, shall not include GST or any disbursements. The Client shall be responsible for GST and disbursements in addition to any fee which the Client is required to pay.
2. WAIVER, RELEASE AND INDEMNITY
2.1.PCM, as a condition of providing the Services, requires that the Client agree to the waiver, release and indemnity contained within this Agreement. The Client acknowledges this condition and therefore the Client agrees as follows:
(a) To waive any and all claims that the Client has or may have in the future against PCM and their solicitors, directors, officers, employees, guides, agents, independent contractors, representatives, successors and assigns; and
(b) To release PCM and its solicitors, directors, officers, employees, guides, agents, independent contractors, representatives, successors and assigns from any and all liability for any loss, damage, or expense that the client may suffer as a result of any act, or failure to act, by PCM, its solicitors, directors, officers, employees, guides, agents, independent contractors or representatives.
2.2.The Parties agree that, not with standing any Services provided, and in addition to the above but not limited to the above, PCM shall specifically not be responsible for the below:
(a) Commencement of any court proceeding in the appropriate jurisdiction, including but not limited to commencement of an action required to maintain, perfect or secure a Builders’ Lien, Mechanics’ Lien, Construction Lien or any like lien as the case may be;
(b) Any loss, damage, claim or any other consequence, that occurs as a result of any Services that are performed by PCM pursuant to any information given to PCM by the Client that was incorrect or incomplete;
(c) Providing any advice, statement, notice or reminders to the Client in respect of any matter whatsoever, but specifically any deadline, timeline or due date;
i. For clarity, but not to diminish the generality of the above, PCM shall not become liable in respect of any deadline, timeline or due date that results in any loss whatsoever to the Client by reason that the deadline, timeline or due date that was provided to the Client is inaccurate.
3. GENERAL TERMS
3.1.The headings used in this Agreement are for explanatory purposes only and do not form part of this Agreement.
3.2.Terms as defined in this Agreement, or any schedule to the Agreement, shall have the same meaning in this Agreement, or any Schedule to this Agreement.
3.3.This Agreement shall be construed and enforced in accordance with, and the rights of the Parties hereto shall be governed by, the laws of the Province of Alberta. Each of the Parties irrevocably attorns to the jurisdiction of the courts in the Province of Alberta.
3.4.This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument. Counterparts may be delivered either in original, electronic or faxed form and the parties adopt any signatures received by a receiving email address or fax machine as original signatures of the Parties.
3.5.The Parties consent to use, provide or accept information, records and signatures in electronic form, unless a law in force in the Province of Alberta prohibits providing or accepting the information, records or signatures in electronic form.
3.6.Unless specified otherwise, all statements of or references to dollar amounts in this Agreement are to lawful money of Canada.
3.7.Unless specified otherwise, all fees are listed exclusive of any applicable taxes.
3.8.If any term, covenant or provision of this Agreement or the application hereof to any party or circumstances shall be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such term, covenant or provision to a party or circumstance other than those to which it is held invalid or unenforceable shall not be affected.
3.9.This Agreement, with Schedules, constitutes the entire Agreement between the Parties hereto and there are no statements, representations, warranties, undertakings or agreements, written or oral, express or implied, direct or indirect, collateral or otherwise, between the Parties hereto, except as herein set forth.
3.10.The waiver, by PCM of any breach or violation or any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation.
3.11.Failure of PCM to declare any breach or violation of any provision of this Agreement, or any delay by PCM in taking action with respect to any breach of this Agreement, shall not waive any such breach.
3.12.This Agreement shall be binding upon the Parties and their respective directors, officers, heirs, executors, administrators and successors (including any successor by reason of amalgamation or wind-up), as the case may be.
3.13.Any modifications or amendments to this Agreement must be in writing and signed by the Parties or it shall have no effect and shall be void.
BY CHECKING THE "I/WE AGREE TO THE TERMS AND CONDITIONS SET OUT IN THE SERVICE TERMS, RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT " BOX ("IAGREEBOX”), THE CLIENT CONFIRMS THAT THEY HAVE READ AND UNDERSTOOD THE AGREEMENT PRIOR TO PRIOR TO SUBMITTING THE CLAIM, AND THAT THE CLIENT IS AWARE THAT BY CHECKING THE "I AGREE BOX” FOR THIS AGREEMENT THEY ARE WAIVING CERTAIN LEGAL RIGHTS WHICH THEY OR THIER HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, ASSIGNS AND REPRESENTATIVES MAY HAVE AGAINST PCM, ITS SOLICITORS DIRECTORS, OFFICERS, EMPLOYEES, GUIDES, AGENTS, INDEPENDENT CONTRACTORS OR REPRESENTATIVES.
SCHEDULE "A” TO THE SERVICE TERMS, RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
Upon request, PCM may perform the following Services.
1. LIEN AND CAVEAT FILING
1.1.In relation to the filing and registration of a lien or caveat, if PCM agrees to do so, PCM shall perform the following services ("Filing Services”):
(a) Prepare the lien or caveat;
(b) Perform the following investigations, and only the following investigations, to confirm information provided by the Client;
i. Title Searches;
ii. Corporate Registry Searches; and
iii. Determination of proper Government Agency with whom to register the lien or caveat.
(c) Filing and/or registration of the lien or caveat;
(d) Confirming registration with notice to the Client;
(e) Acting as Address for Service, if requested by the Client, subject to additional charges as defined in Schedule "B”.
(f) In addition to the Filing Services, PCM may, as a courtesy only, provide reminders regarding some deadlines associated with the lien. The Client is ultimately responsible, as set out in the attached Agreement, for attending to their deadlines, timelines or due dates.
2. CONSULTING SERVICES
2.1.If requested by the Client, and agreed to by PCM, PCM shall perform consulting services which include the following additional services ("Consulting Services”):
(a) Customer and project information gathering ("Project Intel Report”);
(b) Receiving telephone calls and emails from third-parties;
(c) Receipt and disbursement of lien funds;
(d) Signing Consent Orders on the Client’s behalf, if authorized by the Client;
(e) Discharges in trust / discharges with undertakings;
(f) Providing payout statements; and
(g) Any other task which the Client may request PCM to perform, including, but not limited to the following:
i. Providing a written report in respect of a potential project; or
ii. Preparing or reviewing Bond Application and communication with any related party.
3. DISCHARGING A LIEN OR CAVEAT
3.1.In relation to the discharge of a lien or caveat, if agreed to by PCM, PCM shall perform the following services ("Discharge Services”):
(a) Discharge preparation;
(b) Discharge filing and registration; and
(c) Discharge confirmation with notice to the Client.
4. PROTECTION PLANS
4.1.PCM offers access to an online portal to facilitate communication with the Client. There are four (4) plans;
(b) Essential Intel;
(c) Premium Intel; and
(d) Enterprise Intel
4.2.Each plan has access to different features and the specific features available to each plan may change without notice.
4.3.A plan may be cancelled at any time by either Party by written notice sent to PCM or by selecting the "cancel” button when logged into the Client’s online portal. Refunds will not be issued. The plan will automatically expire at the end of the current subscription term as specified within the Client’s online portal.
4.4.In addition to access to the online portal the following additional services shall be included in each plan as identified below:
(a) Technical support in respect of the online portal, to a maximum of one (1) hour per month, shall be included in the Essential Intel, Premium Intel and Enterprise Intel plans, with Enterprise Intel plans additionally entitled to one (1) session of online video conference training not to exceed four (4) hours.;
(b) A discounted Fee on PCM administration costs for Construction Intel Reports, Bank Checks and Credit Application processing ("Member Pricing”), which does not apply to GST or disbursements, as follows:
i. For Premium Intel – 10% off the Member Pricing as defined in this Agreement; and
ii. For Enterprise Intel – 15% off Member Pricing as defined in this Agreement.
(c) A set number of free land title or corporate searches, per month, as follows:
i. Premium Intel plans are entitled to two (2) "regular” searches per month, land titles or corporate registry, in British Columbia, Alberta, and Saskatchewan;
ii. Enterprise Intel plans are entitled to three (3) "regular” searches per month, land titles or corporate registry, in British Columbia, Alberta, and Saskatchewan;
iii. Premium Intel and Enterprise Intel plans are entitled to one (1) "plus” search per month, land titles or corporate registry, in all provinces but British Columbia, Alberta, and Saskatchewan.
(d) Premium Intel and Enterprise Intel plans are entitled to access to the Commercial Bulletin which shows a listing of commercial accounts which have been sent for collections with PCM and its sister company, Priority Credit Recovery Inc.;
5. NOTICES AND LETTERS
5.1.If requested by the Client, PCM may send notices or letters to the Client’s customer, the property owner, the general contractor and any other relevant contractor, if applicable. The notices may be one or more of the following:
(a) Notice that work is about to commence or is ongoing;
(b) Notice that work has finished;
(c) Notice of intent to file a lien;
(d) Notice requesting project information and/or;
(e) Notice of intent to commence a court action.
5.2.The notice to the Client’s customer would request details regarding the project, including but not limited to the project’s financing, bond details and copies of all relevant contracts.
5.3.PCM shall send notices to those entitles identified and provided to PCM only. PCM will not conduct an independent investigation to verify the facts provided by the Client.
5.4.PCM shall provide a title search to the subject property and a Corporate search of the Client’s customer, if applicable.
6.1.If requested by the Client, PCM may conduct title searches, corporate registry searches, Personal Property Registry Searches, Credit Bureau Checks, or any other search.
6.2.PCM will conduct the search of the entity requested by the Client. PCM will not conduct any inquires into whether the Client provided the correct search terms nor comment on the results of the search.
SCHEDULE "B” TO THE SERVICE TERMS, RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
This Schedule defines the Fee for each service defined in Schedule "A” to the Agreement.
All costs exclude GST and applicable disbursements.
1. LIEN AND CAVEAT FILING
1.1.The fee for the Filing Services shall be;
(a) Lien Filing:
i. The dollar amount listed as "Lien Filing – Regular” according to province as outlined in Appendix "A” in this agreement, unless the request is received by PCM with less than five (5) days’ notice to the end of the lien period, in which case the fee shall be the dollar amount listed as "Lien Filing – RUSH” according to province as outlined in Appendix "A”.
(b) Caveat Filing:
i. The dollar amount listed as "Condominium Caveat” according to province as outlined in Appendix "A” in this agreement
1.2.If Lien Pro Inc. acts as Address for Service, if requested by the Client, following additional charges apply:
i. Document handling fee for each document received by PCM and forwarded to the Client of $30.00, plus disbursements.
ii. All work done in connection with acting as the Client’s Address for Service shall be Billed Hourly.
1.3.The Fee for Filing Services shall be the sum of the above applicable fees.
2. CONSULTING SERVICES
2.1.The Fee for Consulting Services shall be determined after being Billed Hourly.
3. DISCHARGING A LIEN OR CAVEAT
3.1.The fee for Discharge Services shall be;
(a) Lien Discharge:
i. The dollar amount listed as "Lien Discharge” according to province as outlined in Appendix "A”.
(b) Caveat Discharge:
i. The dollar amount listed as "Caveat Discharge” as outlined in Appendix "A”.
4. PROTECTION PLANS
4.1.Basic: $0.00 per month (one user);
4.2.Essential Intel: $49.00 per month (one user);
4.3.Premium Intel: $199.00 per month (one user); and
4.4.Enterprise Intel: $399.00 per month (up to three users).
(a) Enterprise Intel Plan users, after the first three (3), are an additional $100.00 per month.
5. NOTICES AND LETTERS
5.1.The fee to send a notice or letter shall be the dollar amount listed under "Notices” as outlined in Appendix "A” according to notice type as requested by the client
6.1.The fee for each search shall be the dollar amount listed under "Search Fees” according to search type and province as outlined in Appendix "A”
7. HOURLY BILLING
7.1.The Hourly Rate for any work performed on an Hourly Billing basis shall be $195.00.
APPENDIX "A” TO THE SERVICE TERMS, RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
All pricing for the services outlined in Schedule "B” can be found on PCM’s website (www.lien-pro.com) under "PRICING"