Canada: Focus On Construction/Infrastructure - February 2010

Last Updated: February 23 2010
  • Case Note - Tercon v. British Columbia 2010 SCC4
  • Facility Naming Rights: What Happens When Hype Is Greater Than Reality
  • Limitations Issues In Construction Law: Calculating Limitation Periods For Contractual Indemnity Provisions

Case Note - Tercon v. British Columbia 2010 SCC4

By Peter D. Banks

In the recent decision of Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, the Supreme Court of Canada dealt with the important issue of exclusion of liability clauses in the tendering context.

This case involved a Request for Proposals by the Province of British Columbia for the Kincolith project to construct a section of $35 million highway. Initially, the project was intended to cover both design and construction. The Province issued a Request for Expressions of Interest ("RFEI"). The Province changed its mind and decided to design the project itself and issued a Request for Proposals ("RFP") for the construction of the project only. Pursuant to the RFP it was contemplated that only the original six eligible bidders under the RFEI would be eligible.

In Canada, the law of tendering is governed by the Contract A/Contract B analysis set out in Ontario v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111. This involves two distinct contracts i.e., Contract A and Contract B. Contract A is the tendering contract. Contract B is the substantive construction contract. The terms of Contract A are determined by the terms of the tender documents and the intention of the parties. Terms typically implied in Contract A are the obligations of an owner to accept only a tender that complies with the tender documents and to treat all tenderers fairly and equally.1

The Province's RFP contained an express exclusion of liability clause which stated:

2:10 . . . Except as expressly and specifically permitted in these Instructions to Proponents, no Proponent shall have any claim for compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a Proposal each Proponent shall be deemed to have agreed that it has no claim.

Tercon Contractors Ltd. ("Tercon") submitted a proposal for the project. Its rival in the bidding process Brentwood Enterprises Ltd. ("Brentwood") also submitted a proposal. Brentwood was an eligible bidder as it had participated in the RFEI, but it had entered a pre-bidding arrangement to form a joint venture with a party who had not participated in the first round and was therefore not eligible as a bidder itself. The Province awarded the project to Brentwood.

Tercon sued the Province claiming that the Province breached Contract A (i.e., the tendering contract) by awarding the project to an ineligible bidder and sought damages for lost profit.

The trial judge found that the Province breached Contract A and that the RFP's exclusion of liability clause was ambiguous and did not protect the Province from Tercon's claim for damages. The trial judge awarded Tercon damages in excess of $3.2 million.2

The Court of Appeal overturned the trial judge. In a short decision, it held that the exclusion of liability clause was clear, unambiguous and effectively barred Tercon's claim.3

In a 5-4 split, the Supreme Court of Canada overturned the Court of Appeal. Both the majority and dissent agreed on the general analytical framework to be applied in addressing the issue of exclusion of liability clauses, but divided on the interpretation of the clause itself.

The general analytical framework is as follows:

1. First, as a matter of contractual interpretation, does the exclusion clause in question apply to the circumstances of the case?

2. Second, if the exclusion clause does apply, is the exclusion clause unenforceable because it was unconscionable at the time the contract was entered?

3. Finally, are there any overriding public policies based upon which the Court should refuse to enforce the otherwise valid exclusion clause? 4

Justice Cromwell, for the majority, narrowly interpreted the exclusion clause and concluded that it did not apply to the circumstances of this case. The majority emphasized the "special commercial context of tendering" and the idea that "[e]ffective tendering ultimately depends on the integrity and business efficacy of the tendering process". 5 According to the majority, the eligibility requirements of the RFP were at the "very root of the RFP".6

Based upon the premise that the RFP was intended for eligible bidders only, and the special context of the case, the majority interpreted the words "participating in this RFP" as meaning participating in the contest among those eligible to participate only. According to the majority, participating in a process involving ineligible bidders is not "participating in this RFP" (emphasis added). As such, the exclusion clause does not protect the Province from accepting a bid from an ineligible bidder as that is not a claim arising from "this RFP". Justice Cromwell explained:

[74] I turn to the text of the clause which the Province inserted in its RFP. It addresses claims that result from "participating in this RFP". As noted, the limitation on who could participate in this RFP was one of its premises. These words must, therefore, be read in light of the limit on who was eligible to participate in this RFP. ... Thus, central to "participating in this RFP" was participating in a contest among those eligible to participate. A process involving other bidders, as the trial judge found the process followed by the Province to be, is not the process called for by "this RFP" and being part of that other process is not in any meaningful sense "participating in this RFP".

Clear language is needed to exclude liability for breach of such a fundamental element of the process. Justice Cromwell explained that eligibility of the bidders was a key element of the process and it seemed unlikely that the parties intended through this exclusion clause to "effectively gut" a key aspect of the process.7

Consequently, "this RFP" was interpreted as not including a process with ineligible bidders and, as such, the clause did not protect the Province from Tercon's claim. According to the majority "[t]his interpretation of the exclusion clause does not rob it of meaning, but makes it compatible with other provisions of the RFP." 8

Alternatively, the majority stated that if its interpretation is wrong, it would have concluded that the language is at least ambiguous and would apply the principle of contra proferentem.9

The strong dissent of four judges refused to accept the majority's interpretation of the RFP's exclusion clause. Justice Binnie stated the fundamental issue as follows:

[85] The appeal thus brings into conflict the public policy that favours a fair, open and transparent bid process, and the freedom of contract of sophisticated and experienced parties in a commercial environment to craft their own contractual relations. I agree with Tercon that the public interest favours an orderly and fair scheme for tendering in the construction industry, but there is also a public interest in leaving knowledgable parties free to order their own commercial affairs. In my view, on the facts of this case, the Court should not rewrite — nor should the Court refuse to give effect to — the terms agreed to by the parties.

Justice Binnie stated: [93] ...

Contract A continues to be based not on some abstract externally imposed rule of law but on the presumed (and occasionally implied) intent of the parties. Only in rare circumstances will the Court relieve a party from the bargain it has made.

[94] As to implied terms, M.J.B. emphasized (at para. 29) that the focus is "the intentions of the actual parties". A court, when dealing with a claim to an implied term, "must be careful not to slide into determining the intentions of reasonable parties". Thus "if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis".

Justice Binnie accepted that the Province breached the terms of its own RFP, but held the exclusion clause was clear and unambiguous. The words "participating in this RFP" applied to this case. The dissent was of the view that the process still continued to be this RFP notwithstanding that an ineligible bidder had entered it. The dissent noted:

[128] ... but the conclusion that the process thereby ceased to be the RFP process appears to me, with due respect to colleagues of a different view, to be a "strained and artificial interpretatio[n] in order, indirectly and obliquely, to avoid the impact of what seems to them ex post facto to have been an unfair and unreasonable clause".

Further, the dissent pointed out that the majority's interpretation would leave little room for clause to operate given that "[a]ssertions of ineligible bidders and ineligible bids are the bread and butter of construction litigation". Justice Binnie stated:

[136] ... A more sensible and realistic view is that the parties here expected, even if they didn't like it, that the exclusion of compensation clause would operate even where the eligibility criteria in respect of the bid (including the bidder) were not complied with.

The dissent ultimately concluded that "[w]hile there is a public interest in a fair and transparent tendering process, it cannot be ratcheted up to defeat the enforcement of Contract A in this case. There was an RFP process and Tercon participated in it."10

Considering the remaining steps in the general analysis, the dissent concluded that the clause was not unconscionable at the time it was entered nor were there any overriding public policy reasons to cause the Court to decline to enforce it. The dissent pointed out that a contractor is free to decline to participate in a tendering process if it so chooses, and if enough contractors decline to participate the owner would necessarily be forced to change its terms. The dissent concluded by stating that "[s]o long as contractors are willing to bid on such terms, I do not think it is the court's job to rescue them from the consequences of their decision to do so." 11

This case will undoubtedly be seen as controversial for either side of the debate in an already extremely litigious area of the law. The case illustrates the classic conflict between the public policy that favours a fair, open and transparent bid process and the freedom of contract of sophisticated and experienced parties in a commercial context. The majority's interpretation of the exclusion clause clearly favoured the policy of a fair, open and transparent tender process. The dissent favoured freedom of contract.



Facility Naming Rights: What Happens When Hype Is Greater Than Reality

By E. Jane Sidnell and Jordan C. Milne, Calgary

The Montreal Forum, an arena entrenched in hockey folklore, was recently the subject matter of a far different precedent. Indeed, the Montreal Forum lies at the centre of the recent decision of the Québec Superior Court in Forum Entertainment Centre Company v. Pepsi Bottling Group (Canada) Co. (2008 QCCS 4672), a case with potentially far-reaching implications for real estate developers and operators alike.

In the late 1990s, the Forum Entertainment Centre Company ("Forum") redeveloped the Montreal Forum from an abandoned hockey arena into a commercial entertainment complex consisting of shops, restaurants and a theatre. In connection with this redevelopment, Forum entered into a 15-year "exclusive supply arrangement" with Pepsi Bottling Group (Canada) Co. ("Pepsi"). Pepsi became the title sponsor for the complex and obtained "pouring rights" as the exclusive supplier of soft drinks. In exchange, Forum received annual sponsorship fees and a 38% commission payable on all soft drink sales. Underlying this arrangement was the mutual expectation, set out in the parties' contract, that Forum would operate the complex as a "first class entertainment facility".

Pepsi failed to make any payments to Forum and, in fact, purported to terminate the arrangement after the first year of the contract on account of the failure of Forum to achieve the threshold objective of a first class entertainment facility. In support of this allegation of failure, Pepsi pointed to the following facts:

  • the opening of the complex was delayed by approximately one year;
  • the complex was only leased to 50% of capacity;
  • only one of three promised anchor tenants was delivered; and
  • many of the tenants, namely Future Shop and SAQ, a liquor store, did not belong in a first class entertainment facility.

Forum sued for unpaid fees and commissions under the contract. Pepsi counterclaimed for termination of the contract on the basis of a fundamental breach, namely that Forum had breached its fundamental obligation to operate the complex as a first class entertainment facility.

The outcome of this case rested on the Court's determination as to whether the obligation to operate the complex as a first class entertainment facility was fundamental. Notwithstanding the presence of an "entire agreement" clause, the Court went beyond the four corners of the contract and considered extrinsic evidence to breathe life into its provisions. This extrinsic evidence included a wide volume of press releases, promotional materials, public statements and expert testimony.

Based upon its review of the evidence, the Court determined the following:

  • the obligation to operate the complex as a first class entertainment facility was, in fact, fundamental to the contract; and
  • the obligation to operate the complex as a first class entertainment facility related primarily to the character and diversity of the lessees.

The Court concluded that Forum did not attain the first class standard and found that the contract was terminated. Moreover, the Court signalled that Forum could not have avoided this outcome unless the fundamental breach, namely the failure to operate the complex as a first class entertainment facility, was wholly beyond its control.

In addition to the remedy of termination, the Court also lowered the sponsorship fees payable by Pepsi to Forum under the contract to 40%. In effect, this represents a finding as to the percentage of Pepsi's sponsorship dollars that Forum, through its unsatisfactory operation of the complex, had actually earned. Conversely, the commission payable on soft drink sales was left intact on the basis that it was unit-based, and not tied to the performance of Forum.

The decision in Forum Entertainment Centre Company v. Pepsi is presently under appeal to the Québec Court of Appeal. Until a decision is rendered on appeal, real estate developers and operators should consider that:

  • developers may be held to their pre-contractual representations as to the intended quality or character of a project, particularly in relation to lessees; and
  • the presence of an entire agreement clause will not necessarily preclude the Court from examining extrinsic evidence toward interpreting a developer's representations.




Limitations Issues In Construction Law: Calculating Limitation Periods For Contractual Indemnity Provisions

By Peter A. K. Vetsch

Construction disputes in Alberta, like all other personal or commercial disputes arising in the province, are subject to the Alberta Limitations Act, which limits the time within which a plaintiff can commence litigation or arbitration proceedings to enforce a claim. The Act provides that a claimant must commence proceedings within two years of the time that it first knew, or ought to have known, that (1) it had suffered an injury, (2) the injury was attributable to the conduct of the defendant, and (3) the injury warranted bringing a proceeding. Limitation periods for construction claims are calculated based on when these three requirements are met. However, this calculation process, and the determination that arises out of it, is rarely straightforward and can be complicated in the construction context depending on how the plaintiff frames its cause of action and whether there is anything in the contract between the parties to the claim that impacts how and when the claimed injury is discoverable.

The recent Alberta decision of Penhold (Town) v. Boulder Contracting Ltd.1, although a lower-level authority, provides an important analysis of a limitations issue that is rarely discussed in construction law jurisprudence but that could potentially have a significant effect on the interpretation and impact of contracts throughout the industry: the calculation of limitation periods for claims based on contractual indemnity provisions. The plaintiff municipality in this case attempted to extend its time for commencing a proceeding in a construction deficiency dispute with the defendant contractor by characterizing its cause of action as a claim in indemnity and arguing that its indemnifiable loss did not arise for limitations purposes until it had actually paid funds out of pocket to remedy the deficiencies. The Court ultimately refused to allow the owner's limitation period to be extended in this fashion.

The Town of Penhold had entered into a contract with Boulder Contracting, the defendant contractor, in July 2001 for the installation of water and sewer mains in a new subdivision. The contractor completed work in the fall of 2001, but in the spring of 2002, the pavement in the subdivision began to crack and settle in locations where the contractor's work had been performed. The Town and its engineer immediately attributed this settlement to deficiencies in the contractor's work and demanded that the defendant remedy these defects and the resultant damage pursuant to its contractual warranty obligations, which required it to perform such remedial work for a two-year period after substantial completion. The contractor denied that it was responsible for the pavement settlement, and after years of further demands, the Town arranged for its engineer to conduct an on-site inspection of the damage in June 2005. The engineer issued a written report specifically outlining all observed deficiencies and the remedial work required to fix them, again concluding that all such defects were attributable to the contractor. The defendant took no steps to repair the deficiencies, and as a result, Penhold retained and paid another contractor to complete remedial work in September 2007. Penhold then commenced litigation and arbitration 12 2009 ABOB 550 (Alta. Master). proceedings against Boulder for the cost of this remedial work in December 2007.

Boulder immediately took the position that Penhold's proceedings were statute-barred by the Limitations Act, as Penhold had first discovered the deficiencies over five years before it commenced proceedings and its engineer had formally described and attributed the defects to Boulder two and a half years before Penhold brought its claim. The contractor therefore argued, and the Court agreed, that the Town's warranty claim was commenced more than two years after Penhold knew it had suffered an injury, had attributed it to Boulder and knew that it was sufficiently serious to warrant bringing proceedings, which took it beyond the two-year limitation period. However, the contract between Boulder and Penhold also contained an indemnity provision which stated that the contractor would indemnify the Town from and against "all claims...losses, costs, damages...payments, recoveries or judgments of every nature and description arising out of or which may be attributable to the contractor's performance of the contract." Penhold argued that the defendant's defective performance of its contractual obligations resulted in the Town having to incur repair costs to a third party contractor and that the payment of these costs triggered the indemnity provision and gave rise to an obligation on the part of the defendant to reimburse the Town for such costs. It further argued that this obligation did not arise for limitations purposes until the remedial costs had actually been physically paid out by Penhold in September 2007, which was only three months before it commenced proceedings, well before the expiry of the limitation period. In support of this argument, Penhold relied on the 1988 Alberta Court of Appeal decision of Fidelity Trust Co. v. 98956 Investments Ltd.2, which stood for the proposition that, "[b]ecause the very nature of a contract of indemnity is that it is a reimbursement obligation for an amount of damages that has actually been suffered...no cause of action can even arise until the extent of the loss has been quantified."3

Master Laycock rejected Penhold's indemnity limitations arguments for two reasons. First, he held that the nature and extent of any claim by Penhold for indemnity for Boulder's deficient work had been sufficiently ascertained and determined by the June 2005 engineer's report, which specified all of the defects present at the subdivision and the work required to fix them. From this information, "[t]he cost to remediate was easy to determine by putting the work out to tender. This process could have been completed shortly after the completion of the report."15 The Town could not obtain the benefit of an extended limitation period simply because it unilaterally decided to wait over two years after the report was issued before actually incurring any remedial expenses. The Master refused to find that Penhold's limitation period started anytime later than June 2005, as such a finding "would permit the plaintiff, with full knowledge of its cause of action, to hold its limitation period in abeyance while it waited for the most opportune time to incur indemnity costs, thereby controlling the timing of its own limitation period."16 Fundamental to limitations regimes like Alberta's, which are based around the principles of discoverability, is the idea that a limitation period should be objectively calculable and should be beyond the ability of the plaintiff to manipulate once its claim is reasonably knowable.

In addition, the Master also held that the indemnity provision in the parties' contract was only intended to apply to liability claims by third parties and was not meant to apply to direct warranty claims for deficiencies. There was no express language in the indemnity clause to this effect, but the contract had established a separate framework to handle first party warranty claims: the warranty provision that set out a two-year warranty period within which the contractor was obligated to repair defective work. If warranty claims could also be advanced using the indemnity provision, which did not have a similar two-year expiry date, it would have made it possible for Penhold to claim for warrantable losses arising after the expiry of the contractual warranty period, which would render meaningless the warranty provision. The Court concluded that such an interpretation of the indemnity provisions would be "illogical" and that the only consistent interpretation of the contract was that the contractual indemnity was not meant to apply to warranty work. As a result, the indemnity clause in the contract did not allow Penhold to extend its limitation period for commencing proceedings beyond the standard two-year discoverability period provided in the Limitations Act.

The Penhold case is important for what the Court did not decide. If the Master had held that the indemnity provision in the parties' contract gave rise to a separate, independent limitation period that began to run, not when the Town's indemnifiable loss was first discoverable, but when the act of paying out indemnifiable expenses occurred, it would have created a significant loophole in Alberta's statutory limitations regime that would have enabled parties to contracts with indemnity clauses to sit on stale claims until it was most beneficial for them to trigger their own limitation period. As it stands, parties considering making first-party indemnity claims should endeavour to do so based on the initial discoverability date of the injuries giving rise to an indemnifiable payment, regardless of when that payment was ultimately made.

Footnotes

1 The Contract A/Contract B principles can apply to the RFP context. This case at the trial level raised the interesting question concerning RFP vs. tender. See: 2006 BCSC 499 at paras. 78 – 95.

2 2006 BCSC 499

3 2007 BCCA 592

4 Consistent with the foreshadowing in an increasing number of earlier cases, the Supreme Court finally laid the old doctrine of fundamental breach to rest. This analytical framework was set out by Justice Binnie at paras. 122-123. Although writing for the dissent, Justice Binnie's formulation of the analytical framework was accepted by the majority (see: para. 62). The burden of establishing that the clause ought not to be enforced because of an overriding public policy is on the party seeking to avoid its enforcement.

5 para. 67

6 para. 70

7 para. 72

8 para. 76

9 para. 79

10 para. 135

11 para. 141

12 2009 ABOB 550 (Alta. Master).

13 (1988), 89 A.R. 151 (C.A.).

14 Ibid. at para 30.

15 Penhold, supra, note 1 at para 15.

16 Ibid. at para 17.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Oct 2018, Other, Toronto, Canada

Dentons and SheEO are coming together for an evening of #radicalgenerosity on October 23, 2017. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

23 Oct 2018, Seminar, Montreal, Canada

Dentons is pleased to invite you to join us for a breakfast seminar as part of the Les Matinées Dentons series on issues relevant to you and your business.

24 Oct 2018, Other, Toronto, Canada

If you build it, claims may come. Join the Dentons Construction group for breakfast and an informative discussion on current topics in construction law.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions