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SALE AND SERVICES AGREEMENT

BETWEEN:        GAUTHIERDELAPLANTE INC., a corporation incorporated under the provisions of the Business Corporations Act (Québec), having its head office at 595, 5e Rue, Québec, Québec, G1J 2S6, represented herein by its President, Mr. Rémy Gauthier, who warrants that he is duly authorized to act in this capacity;

 

                                                           (hereinafter referred to as “GauthierDeLaPlante”)

 

AND:                   ________________________________________________________

 

WHEREAS GauthierDeLaPlante operates a business specializing in the manufacturing of railings, handrails, and other fencing materials (hereinafter the “Products”), which are designed and drawn to meet the specific needs of its clients (hereinafter the “Design Services”), and thereafter delivered in ready-to-assemble components to the location specified by the clients;

 

WHEREAS the Client and GauthierDeLaPlante have agreed this day upon the terms under which GauthierDeLaPlante shall sell Products to the Client in accordance with the conditions set forth herein;

 

THE PARTIES THEREFORE AGREE AS FOLLOWS:

 

1-            PRODUCTION AND SALE OF THE PRODUCTS

 

1.1         The Client requests that GauthierDeLaPlante carry out the design and production of the Products described in the quote attached hereto as Schedule A, which forms an integral part of this Agreement (hereinafter the “Quote”), to sell them to the Client, and to mandate a subcontractor for their delivery, all in accordance with the terms of this Agreement.

 

For greater clarity, the signature of this Sale and Services Agreement constitutes, in addition to acceptance of the present terms, acceptance of all information and conditions contained in the final version of the Quote attached hereto.

 

1.2         The Client shall provide GauthierDeLaPlante with all measurements taken by the Client or by a third party on the Client’s behalf, in accordance with the measurement guide provided by GauthierDeLaPlante.

GauthierDeLaPlante shall not be held responsible for any errors or omissions resulting from improper application of its measurement guide or from the transmission by the Client of erroneous or incomplete information.

 

1.3         S Once (1) the Quote has been accepted, (2) GauthierDeLaPlante has received accurate and complete measurements in accordance with paragraph 1.2 hereof, and (3) GauthierDeLaPlante has received payment of the Advance provided for in paragraph 4.1 hereof, GauthierDeLaPlante shall prepare a technical specification document describing the Products ordered in accordance with this Agreement and confirming the final sale price of the Products and Design Services (hereinafter the “Technical Specifications”).

 

The Technical Specifications may update the information set out in the Quote based on the measurements provided by the Client. Additionally, if the Client takes more than one (1) month from the date the Quote was issued by GauthierDeLaPlante to provide complete and accurate measurements as required under paragraph 1.2 hereof, the Technical Specifications may also be updated to reflect any fluctuation in the prices of the Products and Services that may have occurred in the interim.

 

1.4         The Client shall have a period of thirty (30) business days from receipt of the draft Technical Specifications to provide GauthierDeLaPlante with a signed confirmation of its acceptance thereof. Once accepted by the Client, the Technical Specifications shall form an integral part of this Agreement and shall be deemed attached hereto as Schedule B.

 

1.5         If the Client wishes to submit modification requests to a draft version of the Technical Specifications, the Client must specify such modification requests in writing and in detail. GauthierDeLaPlante shall then benefit once again from the time period provided in paragraph 1.3 hereof to submit a new draft of the Technical Specifications to the Client, who shall then have a new period of five (5) business days to respond, until such time as the Technical Specifications are accepted

 

1.6         Even when signed, no document shall be deemed an acceptance of the Technical Specifications or bind GauthierDeLaPlante unless it consists of a written document signed by the Client that accepts the Technical Specifications as is, without any modification.

 

1.7         Receipt by GauthierDeLaPlante of Technical Specifications duly accepted by the Client constitutes an instruction from the Client to begin production of the Products. GauthierDeLaPlante shall thereafter take the measures reasonably required to manufacture or have manufactured, in accordance with the models and quantities set out in the Technical Specifications, Products of a quality that meets industry standards.

 

1.8         GauthierDeLaPlante undertakes to make reasonable efforts to comply with the production and delivery timelines indicated in the Quote, as subsequently revised in the Technical Specifications. Such timelines shall begin only upon receipt by GauthierDeLaPlante of the Client’s acceptance of the Technical Specifications and may be affected, among other factors, by the availability of labor and materials, or by delays attributable to third-party suppliers, including those involved in the delivery of the Products.

 

1.9         GauthierDeLaPlante’s obligations are limited to the following:

 

a)      to manufacture the Products in accordance with the Technical Specifications, as well as with all applicable laws and regulations in force in Québec;

 

b)      to conduct a quality and quantity inspection of the Products at the time they are shipped for delivery, it being understood that the Products must correspond to the list attached to the delivery packaging of the Products; and

 

c)      to package and label the Products in accordance with all applicable laws and regulations in force in Québec, as well as, where applicable, in accordance with the requirements of subcontractors potentially involved in the transportation and handling of such packaging.

 

1.10       GauthierDeLaPlante acts strictly as a manufacturer of railing materials to be assembled and, for certain of its Products, as a distributor or sub-distributor of materials and hardware components produced by third parties. GauthierDeLaPlante is not a construction contractor and shall under no circumstances act as an installer of the Products, appoint installers, or assume any liability whatsoever in connection with the installation of the Products.        

 

1.11       The Client is solely responsible for the installation of the Products, which may be delegated to a company of the Client’s choosing. GauthierDeLaPlante assumes no liability regarding the manner in which the Products are installed, including, without limitation, compliance with the laws and regulations in force at the installation site.

 

For greater clarity, GauthierDeLaPlante will provide, for informational purposes only, its general installation guide for its Products, intended for construction contractors acting as installers. This guide is not specific to the Product ordered by the Client and does not take into account the site conditions or circumstances in which the Products will be installed. As such, in certain situations, it may be preferable to install the Products using a different method.

 

Furthermore, if the Quote, the Technical Specifications, or the Product packaging includes a drawing, sketch, or plan involving the Products, such documents are intended solely for use by GauthierDeLaPlante for the purpose of manufacturing custom Products in accordance with the Technical Specifications and for verifying orders. In such cases, these drawings, sketches, or plans do not represent a possible installation method for the Products, must not be presumed to be to scale or reflect actual conditions, and shall under no circumstances constitute a recommendation by GauthierDeLaPlante regarding any installation procedure.

 

2-            FINAL INVOICING AND DELIVERY OF THE PRODUCTS

 

2.1         Once the Products have been manufactured and prepared for shipment, GauthierDeLaPlante shall issue and transmit to the Client a final invoice indicating the delivery address, which shall correspond either to the delivery address set out in the Technical Specifications or, failing that, to the Client’s address. Delivery shall be carried out at the Client’s expense by a subcontractor designated by GauthierDeLaPlante.

 

As the transportation cost of the Products is not known at the time the Technical Specifications are produced—given that it depends, among other things, on their packaged weight—GauthierDeLaPlante shall not be bound by any estimates previously provided, which, if applicable, shall have been issued for indicative purposes only.

 

Once the packaging of the Products has been measured and weighed, the actual cost of transportation and delivery shall be included in the final invoice transmitted to the Client by GauthierDeLaPlante prior to shipment.

 

 

2.2         GauthierDeLaPlante shall have no obligation to ship the Products until it has received full payment of all amounts owing in connection with the final invoice issued to the Client. The Client shall also bear any increase in transportation costs that may occur between the issuance of the final invoice and the receipt of payment by GauthierDeLaPlante.

 

2.3         Ownership of the Products shall transfer at the moment they are shipped by GauthierDeLaPlante or one of its subcontractors, such that during transportation, the Products shall already be the property of the Client.

 

2.4         GauthierDeLaPlante shall not be responsible for delivery delays, delivery errors, or any inconvenience or damages that may be caused to the Products. Without limiting the generality of the foregoing, the delivery timelines described in the Technical Specifications are estimates provided for indicative purposes only and cannot be guaranteed.

 

During delivery, the subcontractor responsible for transporting the Products may provide a link allowing the Client to track the delivery progress. If applicable, GauthierDeLaPlante shall not be responsible for any information transmitted by such subcontractor.

 

3-            REQUEST FOR REPLACEMENT OF PRODUCTS

 

3.1         The Client is responsible for inspecting the condition of the Products within thirty (30) days of their receipt. If the Client identifies any order inaccuracy, damage, or defect in the Products, the Client must contact GauthierDeLaPlante before the expiration of the aforementioned thirty (30)-day period in order to request that the Products be replaced.

 

After the expiration of this period, GauthierDeLaPlante may, at its sole discretion, agree to proceed with such replacement, but shall not be obligated to do so. The Client further acknowledges that the availability of the materials and labor required for the fabrication of the Products may make it impossible to replace certain Products, which is why the Client must inspect all Products and report any issue to GauthierDeLaPlante within the prescribed time.

 

3.2         To be considered valid, a replacement request must be submitted in French or English and be transmitted to the GauthierDeLaPlante representative identified in the Technical Specifications before the expiration of the period provided in paragraph 3.1 hereof (hereinafter a “Replacement Request”).

 

Furthermore, a Replacement Request shall only be considered valid if it clearly identifies each Product concerned and includes a detailed description—supported by photographs—of the alleged defect or damage.

 

GauthierDeLaPlante shall not be required to process any Replacement Request submitted late or otherwise non-compliant.

 

3.3         GauthierDeLaPlante shall review, within a reasonable timeframe, any Replacement Request received within the delay set out in paragraph 3.1 hereof, in order to determine whether it is compliant and, if so, whether the Client is entitled to replacement of a Product, which will occur only in the following situations:

 

a)      The Products delivered are substantially different from the Products approved in the Technical Specifications; or

 

b)      The Products are significantly defective or damaged—other than at the packaging level—in a manner that prevents their proper use for their intended purpose.

 

3.4         GauthierDeLaPlante shall process any Replacement Request within thirty (30) days of its receipt.

 

3.5         During the period set out in paragraph 3.4 hereof, GauthierDeLaPlante may, without admission, request additional information from the Client regarding the request. In particular, GauthierDeLaPlante may require that a representative be allowed to examine the Products concerned, either remotely or in person at a location designated by GauthierDeLaPlante, in order to assess the alleged defects or damage described in the Replacement Request.

 

In such a case, the period set out in paragraph 3.4 hereof shall begin only once GauthierDeLaPlante has received all information required to complete its analysis of the Replacement Request.

 

3.6         If GauthierDeLaPlante determines that a Replacement Request is non-compliant or not eligible, a representative shall notify the Client by email within the period set out in paragraph 3.4 hereof, specifying the grounds for refusal.

 

3.7         If GauthierDeLaPlante determines that a Replacement Request is compliant and eligible, it shall notify the Client by email and proceed with the replacement of the Products concerned within a reasonable timeframe determined by GauthierDeLaPlante, taking into account the circumstances of each case, including supply, production, and delivery timelines over which GauthierDeLaPlante does not have full control.

 

In such a case, the return shipping costs for the Products concerned shall be borne by GauthierDeLaPlante.

 

In all circumstances, GauthierDeLaPlante remains solely a supplier of Products, and its liability is limited to replacing defective or damaged Products in accordance with this Agreement. Consequently, GauthierDeLaPlante shall not assume any costs or liability for the removal of defective Products, the installation of replacement Products, or any other inconvenience resulting from the need to replace a defective or damaged Product.

3.8         If GauthierDeLaPlante determines that a Replacement Request is compliant and eligible but is unable, for any reason whatsoever, to replace the Products concerned, GauthierDeLaPlante may, at its sole discretion:

 

a)      decline to proceed with replacement and instead issue a refund equal to the sale price of the defective or damaged Products; or

 

b)      contact the Client to offer an alternative Product model, which the Client may accept or refuse, and any refusal shall entitle the Client to the refund described above.

 

3.9         In the situation described in subparagraph 3.8(b), where the Client accepts a replacement Product different from the defective or damaged Product:

 

a)      if the replacement Product is more expensive than the Product being replaced, GauthierDeLaPlante shall issue an invoice to the Client for the difference in value, which must be paid in accordance with Article 4 of this Agreement; and

 

b)      if the replacement Product is of lesser value than the Product being replaced, GauthierDeLaPlante shall issue a refund for the difference.

 

4-            INVOICING AND PAYMENT

 

4.1         Concurrently with the acceptance of the Quote and the signing of this Agreement, the Client agrees to pay GauthierDeLaPlante, as an advance payment, an amount representing fifty percent (50%) of the estimated sale price of the Products indicated in the Quote (hereinafter the “Advance”).

 

GauthierDeLaPlante shall have no obligation to comply with any undertaking pursuant to this Agreement, or otherwise toward the Client, until it has received full payment of the Advance.

 

4.2         The invoicing of the Products shall be carried out by GauthierDeLaPlante according to the frequency corresponding to its internal policies then in effect, and in accordance with the prices indicated in the Technical Specifications and any subsequent invoicing, all of which shall be increased by applicable taxes.

 

4.3         GauthierDeLaPlante may apply the Advance toward payment of any amount that may be owed to it pursuant to this Agreement.

 

4.4         Any invoice issued by GauthierDeLaPlante shall be payable exclusively by bank transfer or Interac transfer, except for invoices exceeding one thousand five hundred Canadian dollars (CAD $1,500) before taxes, which may also be paid by a credit card accepted by GauthierDeLaPlante.

 

4.5         The Client agrees to pay any invoice transmitted by GauthierDeLaPlante upon receipt

 

Any amount owed to GauthierDeLaPlante pursuant to this Agreement that is not received within this timeframe shall bear interest, from the date of invoicing, at a monthly rate of one and one-half percent (1.5%), calculated and applied on a monthly basis. Such interest, if not paid on the first day of the following month, shall thereafter itself bear interest at the same rate, such that, if these monthly interest charges are not paid, the amounts owing shall bear compounded interest at a rate of nineteen and fifty-six hundredths percent (19.56%).

 

4.6         GauthierDeLaPlante may, at its discretion, apply any partial payment received toward the principal of any outstanding amount owed by the Client, or toward accrued interest.

 

5-            CLIENT OBLIGATIONS

 

5.1         When required by GauthierDeLaPlante, the Client shall collaborate diligently and closely with GauthierDeLaPlante’s representatives, as well as with its subcontractors and business partners, in connection with the performance of the Design Services and the manufacturing of the Products.

 

The Client also agrees to provide GauthierDeLaPlante with clear instructions, along with plans, measurements, and any other visual material, documents, or information necessary for the manufacturing of the Products.

 

The Client acknowledges that it remains at all times responsible toward GauthierDeLaPlante for fulfilling the above-mentioned obligations, even if the Client is assisted or advised by an architect, engineer, designer, construction contractor, or any other third party in this context, and even if the Client delegates any portion of its business relationship with GauthierDeLaPlante to such third party.

 

5.2         As GauthierDeLaPlante acts solely as the manufacturer and seller of the Products, the Client is solely responsible for ensuring that the Products and their installation comply with all applicable construction standards and any legislative or regulatory provisions in force at the location where the Client intends to install the Products.

 

The Client acknowledges that GauthierDeLaPlante sells Products in numerous jurisdictions and that it is impossible for GauthierDeLaPlante to be aware of all applicable governmental and municipal laws and regulations. Consequently, GauthierDeLaPlante shall under no circumstances be held liable for any inconvenience suffered by the Client in the event that the Products ordered or the installation contemplated by the Client fails to comply with any applicable legislative or regulatory provision. Such a situation shall not entitle the Client to a Replacement Request, a refund, or any other form of compensation from GauthierDeLaPlante.

 

6-            REFUNDS

 

6.1         Except in circumstances where GauthierDeLaPlante may be required to issue a refund (including, without limitation, pursuant to subparagraph 3.9(b) hereof), once the Technical Specifications have been accepted, and considering the material orders required, no refund of the Advance shall be available to the Client. The Client shall remain bound to fulfill all obligations undertaken toward GauthierDeLaPlante under this Agreement and its schedules.

 

If no materials necessary or useful for the fabrication of the Products covered by the Technical Specifications have yet been ordered by GauthierDeLaPlante, the Client may be entitled to a partial refund of the Advance, less a fee representing ten percent (10%) of the amount of the Technical Specifications, in payment for the Services rendered by GauthierDeLaPlante, such amount being subject to applicable taxes.

 

6.2         Should GauthierDeLaPlante agree to proceed with a full or partial refund, administrative fees totaling twenty percent (20%) of the price of the Products may be charged to the Client, in addition to any return shipping costs for the Products.

 

6.3         Notwithstanding any provision herein, the Client acknowledges that due to the nature of this type of Product, no refund shall be available, for any reason whatsoever, for stainless steel cable products.

 

7-            LIABILITY

 

7.1         In addition to complying with any more stringent obligations arising from applicable legislation or regulations, the obligations assumed by GauthierDeLaPlante hereunder are obligations of means and not of result.

 

Without limiting the generality of the foregoing, GauthierDeLaPlante’s obligations shall be limited in particular if its ability to fulfill the commitments assumed hereunder is delayed or otherwise affected by a force majeure event or any other situation beyond the full control of GauthierDeLaPlante, including, without limitation, a labor dispute, a disruption in the supply chain, or a labor shortage affecting GauthierDeLaPlante or any of its suppliers or subcontractors.

 

7.2         The Client acknowledges that delivery timelines for the Products are beyond the control of GauthierDeLaPlante and that, consequently, when delivery timelines are communicated by GauthierDeLaPlante, given the uncertainties inherent in the transportation and delivery of materials by its subcontractors, such timelines are merely estimates provided to the Client for indicative purposes only and do not engage the liability of GauthierDeLaPlante.

 

7.3         The Client acknowledges that the very nature of the businesses operated by GauthierDeLaPlante and its suppliers, subcontractors, and business partners implies that they are subject to various contingencies that are wholly or partially beyond the control of GauthierDeLaPlante and the aforementioned stakeholders.

 

Except in cases of intentional fault or gross negligence attributable to GauthierDeLaPlante or its suppliers, subcontractors, and business partners, GauthierDeLaPlante shall not be liable for any losses or other material damages suffered by the Client.

 

7.4         In all cases, GauthierDeLaPlante may only be required to compensate the Client for any breach of its obligations for damages directly suffered by the Client, to the exclusion of any indirect damages.

 

7.5         In all cases where GauthierDeLaPlante may be required to compensate the Client, the amount of such compensation shall not exceed the amounts received from the Client by GauthierDeLaPlante in connection with the sale of the Products pursuant to this Agreement.

 

7.6         GauthierDeLaPlante shall in no event be held liable for any defect or damage to the Products if the Client has engaged a third party to make any modification, addition, or other alteration of any kind to the Products, or if the user guide provided by GauthierDeLaPlante has not been followed.

 

7.7         If GauthierDeLaPlante considers that it is unable to perform the Services or to manufacture, sell, and deliver the Products in accordance with its standards of quality and timeliness and in a manner that can meet the Client’s reasonable expectations, or for any other reason whatsoever, GauthierDeLaPlante may, at its discretion and without having to justify such decision, terminate this Agreement by sending a notice to that effect to the Client by email. In such a case, GauthierDeLaPlante’s obligations shall be limited to reimbursing the Client, within five (5) business days of such notice, the Advance already received from the Client in connection with the Quote thus cancelled by GauthierDeLaPlante.

 

8-            COMMUNICATIONS

 

8.1         Any communication transmitted to the Client by GauthierDeLaPlante, in any circumstances whatsoever—including, without limitation, for the transmission of any invoice—may be sent to the email address of the contact person indicated by the Client in the Quote or in the Technical Specifications and, if applicable, such communication shall be deemed to have been received by the Client on the date it was sent by a representative of GauthierDeLaPlante.

 

The same shall apply, where applicable, to communications transmitted by GauthierDeLaPlante’s subcontractors and business partners, including for the purposes of delivering the Products.

 

8.2         Any written notice transmitted to GauthierDeLaPlante by the Client pursuant to this Agreement (including its schedules) shall be considered validly transmitted only if sent by email to the following address: info@gauthierdelaplante.com.

 

Such notice shall be deemed to have been received by GauthierDeLaPlante three (3) business days following its transmission by email.

 

9-            USE OF VISUAL CONTENT

 

9.1         If the Client provides GauthierDeLaPlante, whether through its social media accounts or otherwise, with photographs, videos, or other visual content, the Client acknowledges that by doing so, it grants GauthierDeLaPlante a license-type right over such visual content and the related intellectual property rights. This license permits GauthierDeLaPlante to use the content, including on its social media accounts, for advertising and promotional purposes.

 

10-         MISCELLANEOUS PROVISIONS

 

10.1       The rights granted herein may not be assigned, in whole or in part, by the Client without the prior written consent of GauthierDeLaPlante.

 

10.2       This Agreement shall bind the parties and their respective successors and assigns, and shall enure to their benefit.

 

10.3       This Agreement constitutes the entire agreement between the parties with respect to the Design Services rendered and the Products sold by GauthierDeLaPlante to the Client pursuant to the Quote and the Technical Specifications. It supersedes and replaces all prior discussions, negotiations, and agreements, whether verbal or written, relating to its subject matter.

 

10.4       The failure of GauthierDeLaPlante to insist upon strict performance of any covenant or obligation contained in this Agreement, or to exercise any right herein, shall not be construed as a waiver of such right or of strict performance of such covenant or obligation in the future.

 

10.5       This Agreement, including the Quote and the Technical Specifications attached hereto and forming part hereof, may be amended in whole or in part by mutual agreement of the parties, but any such amendment shall take effect only once it has been recorded in a written document duly signed by the Client and an authorized representative of GauthierDeLaPlante, which may be signed in the manner provided in paragraph 10.10 hereof.

 

10.6       Each provision of this Agreement constitutes a separate and distinct covenant, and any decision by a court declaring any provision of this Agreement null or unenforceable shall not affect the validity or enforceability of the remaining provisions hereof.

 

10.7       The deadlines set out herein are strict and shall be calculated in accordance with the provisions of the Code of Civil Procedure (Québec). Any extension or modification granted by one of the parties shall not constitute a waiver of this paragraph.

 

10.8       The validity, interpretation, and enforcement of this Agreement shall be governed by the laws of Québec and the applicable laws of Canada.

 

However, if (1) the Client benefits locally from a more advantageous regime as a “consumer” or any similar designation under any applicable local consumer protection legislation or regulation, and (2) such legislative or regulatory provisions take precedence over this Agreement and invalidate any provision hereof or substitute different terms, then the applicable public-order provisions of such legislation or regulation shall prevail over this Agreement. In such a case, the provisions of this Agreement shall be interpreted and applied subject to the necessary adaptations.

 

10.9       Any dispute directly related to this Agreement shall fall under the exclusive jurisdiction of the courts of the judicial district of Québec.

 

10.10    This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document binding upon the parties. These counterparts may be signed and transmitted in original form, or may be scanned and transmitted by email, or may be transmitted and signed through a software allowing for the electronic execution of contractual documents. The parties agree that any signature so transmitted by email or through such software shall be considered an original signature for the purposes of this Agreement.

 

 

 

IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS SALE AND SERVICES AGREEMENT

 

            GAUTHIERDELAPLANTE INC.

 

 

 

   By:   ____________________________

            Mr. Rémy Gauthier, President

 

 

 

            [CLIENT, IN CAPITAL LETTERS]

 

 

 

   By:   _____________________________

            [Client]