GENERAL TERMS AND CONDITIONS OF PURCHASE ORDERS

1. Formation of Contract – Written acceptance of a purchase order (“PO”) to which these General Terms and Conditions (“GTAC”) are attached or incorporated by reference (each such PO along with these GTAC collectively referred to herein as an “Order”) or the shipment of any goods or commencement of performance hereunder shall constitute acceptance of an Order by the recipient of such Order (“Supplier”). The PO is subject to these GTAC and in the event of any conflicts between these GTAC and the PO, the provisions of the PO shall prevail. Additional or different terms proposed by Supplier are deemed material to the extent they propose variances in the description, quantity, price, or delivery schedule of the goods or services and notice of objection and rejection of such terms is hereby given by Company.

2. Relationship of Parties – Supplier is an independent contractor and no past relationships or course of dealings between the parties shall affect such status. All persons engaged by Supplier or Supplier’s subcontractors in connection with an Order shall be deemed to be Supplier’s agents and employees and not Company’s agents and employees.

3. Contract Work – Supplier shall provide those goods and/or services (respectively “Goods” and “Services” and collectively “Contract Work”) as more particularly identified in the PO. All Contract Work supplied hereunder shall be of good quality and free from any defects in design, workmanship or materials.

4. Performance of Services – Supplier shall diligently and carefully perform all Services required hereunder in a good and workmanlike manner, shall furnish all labour, supervision, machinery, materials, equipment and supplies necessary therefor and shall be fully responsible for all Services performed by any subcontractors permitted hereunder.

5. Supply of Goods – (a) All Goods shall be suitably packed, marked and shipped by Supplier in accordance with industry standards and practices. Packing slips shall be placed in each shipment. No packing or cartage charge shall be allowed except when specifically agreed upon in writing. All Goods designated for international delivery shall be shipped in accordance with Incoterms latest edition. (b) Supplier shall supply Company with information, including all manufacturer information, in its possession relative to equipment or component operation and features, and recommendations for operation of any equipment or components.

6. Inspection – Contract Work shall be subject to Company’s reasonable inspection and approval. Inspection may take place, at Company’s discretion, at Supplier’s location or at the delivery address specified in the PO. Neither Company’s inspection nor failure to inspect shall constitute an acceptance of the Contract Work or a waiver of any of Company’s rights or remedies or relieve Supplier of any of its obligations hereunder. If any Contract Work, in Company’s reasonable opinion, fails to conform to specifications or is otherwise defective, Supplier shall promptly replace or repair same at Supplier’s sole expense.

7. Compliance – Supplier shall comply fully with all applicable laws, regulations, rules, ordinances, codes, orders, decrees of any governmental authority (“Applicable Law”) affecting an Order or the Contract Work and shall comply and cause all its employees, agents, subcontractors and other representatives to comply with Applicable Law and with any and all applicable Company policies identified herein. Supplier shall secure and keep in effect all permits, licenses and authorizations required by public bodies in connection with performance of the Contract Work, unless otherwise specified.

8. Warranties – (a) Supplier warrants that (i) any Goods sold or supplied under an Order shall conform to the Supplier’s affirmations of fact and promises relating to the Goods, to the descriptions, samples and models furnished by Supplier, and to all Company specifications; are new and of good material and workmanship and free from defects in workmanship, design and material for the lesser of one (1) year from the date of installation or eighteen (18) months from date of delivery; are fit for any ordinary or known particular purpose; and are manufactured, procured and produced in compliance with Applicable Laws, (ii) Supplier has merchantable title to such Goods, that the title to same and the transfer of title to Company are good, and that the Goods will be delivered to Company free and clear of any liens or other encumbrances, and (iii) all Contract Work delivered by Supplier pursuant to an Order is performed in strict conformity with Applicable Laws, in accordance with any manufacturer’s specifications, and in accordance with industry standards and practices for similar Contract Work. (b) The foregoing warranties are in addition to, and shall not be construed as restricting or limiting any warranties of Supplier, express or implied, which are provided by law or exist by operation of law. (c) Supplier shall assign to Company or enforce for Company’s benefit any warranties obtained from manufacturers or subcontractors. (d) All warranties shall continue in full force and effect notwithstanding the termination of an Order. Supplier shall, at its sole risk and expense, including costs of transportation and re-installation and re-inspection, to the satisfaction of Company, acting reasonably, promptly repair, replace, re-perform and otherwise remedy any issues identified under this Paragraph 8.

9. Invoicing & Payment – Invoices shall by rendered to Company in accordance with written instructions provided by Company. Each invoice shall fully describe the Contract Work and state whether the billing is “Partial” or “Final”. All sales tax, custom duties and shipping charges shall be shown separately on each invoice. Provided Supplier has delivered the Contract Work and is not in default hereunder, and provided that Supplier has submitted invoices in accordance with Company’s written instructions, Company shall pay Supplier by cheque or wire transfer within seventy-five (75) days of the date of Supplier’s invoice. If Company has any objections to all or any portion of an invoice, Company shall notify Supplier of the objections, give reasons for Company’s objections and pay only that portion of the invoice not in dispute. Representatives of the parties shall confer to resolve any disputed invoices. No payment is final acceptance of Goods or Services nor is it a waiver by Company of any of its rights or remedies under an Order. If Services are provided pursuant to an Order, Supplier’s invoice must be accompanied by a waiver of lien rights (in a form reasonably acceptable to Company) from each of its subcontractors performing any Services.

10. Taxes – Except as otherwise specifically provided in the PO, (i) prices stated in an Order are inclusive of all assessments, fees, taxes (except the Goods and Services Tax “GST”) and the Provincial Sales Tax “PST”), if applicable, and all other duties or charges imposed by any governmental authority upon the Contract Work as an incident to the purchase, sale, ownership, storage, delivery, transport, export or import of the Goods or the performance of the Services; and (ii) any existing or increase or new tax, fee, duty or charge levied by any governmental authority on the Contract Work or the wages, salaries or other remuneration paid to persons employed in connection with the performance of the Contract Work shall be for the account of Supplier who shall indemnify and hold Company harmless from any liability and expense by reason of Supplier’s failure to pay such taxes. If by virtue of legislation such tax, fee, duty or charge is payable by Company, Supplier shall reimburse Company for such tax, fee, duty or charge. In accordance with the Excise Tax Act (Canada), as amended from time to time, Supplier will be registered for GST and will record its GST registration number on all invoices presented to Company for payment. GST, PST and other similar tax, if applicable, must each be shown as separate line items on any invoice or credit note related to this Order. Unless Supplier can demonstrate to Company’s satisfaction that Supplier is exempt from GST, Company will not pay any invoice that does not include the GST registration number. Supplier shall cooperate, and cause its subcontractors to cooperate, with Company in obtaining any available remission or refund of taxes or duty paid by the Supplier (or its subcontractors) on any portion of the Contract Work. Any such remissions or refunds shall be held in trust for Company and forwarded to Company forthwith.

11. Withholding – (a) Company may withhold any moneys payable hereunder and may set off or apply same to the payment of any obligations of Supplier to Company whether arising under this agreement or otherwise and regardless of the capacity of Supplier and Company entering into such other agreement. (b) All payments by Company to Supplier are subject to the Builders’ Lien Act (Alberta) or such other builders’ lien legislation as is applicable in the jurisdiction where Contract Work is performed, and such other applicable legislation requiring or permitting Company to withhold payments for the Contract Services. (c) Unless provided to the contrary in the PO, Supplier represents that it is not a non-resident of Canada for purposes of the Income Tax Act (Canada). If Supplier provides in the PO that it is a non-resident of Canada, Company shall withhold 15%, or such other amount as is required under federal or provincial taxing legislation, of any fee, commission or other amount paid for services rendered by Supplier to Company in Canada during such time as Supplier is a non-resident of Canada, unless Supplier provides Company with a valid waiver or reduction of Regulation 105 withholding tax prior to the commencement of any services in Canada on behalf of Company. For services provided outside of Canada, Supplier may invoice Company separately, so such services are not subject to the withholding tax. If any Goods purchased by Company hereunder are Taxable Canadian Property as defined under the Income Tax Act (Canada), then Company shall withhold 33 1/3 % of the gross amount of the purchase price (without any deductions) of such Goods, unless Supplier provides Company with a valid Section 116 Clearance Certificate.

12. Audits – Company shall have the right to inspect and audit at all reasonable times Supplier’s accounts and records pertaining to the Contract Work. Supplier shall obtain a similar right to permit Company to inspect and audit the accounts and records of any permitted subcontractor. Such accounts and records shall be retained for at least twenty-four (24) months following the delivery and acceptance of the Contract Work by Company.

13. Title and Risk – (a) Supplier shall be fully responsible and bear all risk for the loss, damage or destruction of the Contract Work or any part thereof, of work in progress and of any Goods or materials to be incorporated within or used in the Contract Work until the Contract Work is completed to Company’s full and complete satisfaction or delivered and accepted by Company following inspection thereof within a reasonable time after receipt. Supplier shall replace, repair and indemnify Company for same, unless the said loss or damage is attributable to the fault of Company. (b) Title to all Goods, machinery, materials, equipment and supplies to be furnished to Company by Supplier in respect of the Contract Work shall pass to Company at such time as Company takes actual possession of them at the delivery address. (c) If an Order calls for the erection, assembly or supervision of materials placed at the disposal of Supplier by Company, such materials shall be deemed held by Supplier on consignment and the risk of loss or damage to such materials shall be borne by Supplier until acceptance by or return to Company. Supplier shall, until such time as the Contract Work is complete to Company’s satisfaction or delivered and accepted by Company, at Supplier’s sole cost, replace items lost, damaged or destroyed. All Company-supplied materials not used in the manufacture or fabrication of the Contract Work covered by an Order shall be returned as directed by Company at Company’s expense.

14. Inventions, Drawings and Patents – (a) Company shall have the right, at no additional charge, to use and reproduce Supplier’s applicable literature, such as operating and maintenance manuals, technical publications, prints, drawings, training manuals, and other similar supporting documentation and sales literature pertaining to the Contract Work purchased by Company pursuant to an Order. (b) Supplier acknowledges that any and all inventions, discoveries, improvements, or creations that Supplier may conceive or make in the performance of the Contract Work, whether individually or jointly with others, shall be the sole and exclusive property of Company. Supplier agrees to execute any and all documents which may be deemed necessary by Company, in its sole discretion, to evidence such ownership, and further agrees to cooperate fully in the filing and/or prosecution of any patent application(s) related to such inventions, discoveries, improvements or creations. Supplier agrees that all copyrightable works created in connection with the performance of each Order shall be the sole and exclusive property of Company. To the extent that such works are not deemed to be “works for hire”, Supplier hereby assigns all proprietary interests, including copyrights, in those works to Company, without further compensation.

15. Liability and Indemnities – (a) Supplier shall be liable for, and as an independent covenant, protect, defend, indemnify and hold harmless Company from all causes of action, damages, liability, losses and suits of every type and character (including, without limitation, expenses of litigation, court costs and reasonable legal fees and disbursements) (collectively, “Claims”) arising out of or related in any way to an Order or the Contract Work to the extent such claims are attributable to either Supplier’s failure to comply with Supplier’s obligations under an Order, Supplier’s negligence or the negligence of Supplier’s employees, agents, subcontractors or other representatives. This acceptance of liability and indemnity shall extend to Company’s subsidiaries and affiliates and to their respective directors, officers, employees and representatives. (b) Supplier further agrees to be liable for, and as an independent covenant, protect, defend, indemnify and save Company harmless from any and all Claims based on alleged infringements of trademarks, copyrights, patent rights or of any kind of trade secret arising from the use of Goods or Services provided pursuant to an Order. If any such Goods or Services are held to constitute infringement or their use is enjoined, Supplier, if unable within a reasonable time to secure the right for Company to continue to use such Goods or Services, by suspension of the injunction, by procuring for Company a license or otherwise, will at the option of Company and at Supplier’s sole expense either replace such Goods or Services with non-infringing Goods or Services, or modify them so that the Goods or Services become non-infringing, or remove the infringing Goods and stop the infringing Services and refund all sums paid therefor. (c) The acceptance of liability and indemnifications set forth in this paragraph 15 shall survive acceptance of the Contract Work by Company and payment therefor.

16. Insurance – (a) Supplier shall provide at all times the following insurance in the following amounts:

(b) All insurance policies, except Worker’s Compensation and Automobile Liability Insurance, shall provide by endorsement or otherwise that Insurer(s) waives their right of subrogation against Company and all parties with whom the Company may be participating. (c) Company shall be shown as an Additional Insured on all such policies of insurance, except Workers’ Compensation and Automobile Liability Insurance. (d) Supplier shall furnish Company with a Certificate of Insurance evidencing that such insurance is in force and effect and, upon Company’s request, provide Certified Copies of such insurance policy or policies. (e) Supplier’s insurance policies shall provide that no material change or cancellation shall be made without 30 days written notice to Company. (f) Supplier shall ensure that all subcontractors obtain and maintain insurance coverage commensurate with the Contract Work being performed by such subcontractor.

17. Default – Supplier shall be in default hereunder in the event of (i) any voluntary or involuntary proceedings by or against Supplier in bankruptcy or insolvency, or for the appointment of a receiver or trustee, or (ii) an assignment for the benefit of creditors of the property of Supplier, or (iii) a breach by Supplier of any of the terms or conditions of an Order, including any warranties made in connection with any Goods ordered hereunder. If Supplier is in default, Company may, in its sole discretion, elect any one or more of the following remedies: (iv) not to pay Supplier any monies due to Supplier, (v) cancel an Order and any or all other contracts between Company and Supplier without penalty, (vi) reduce the quantities of Contract Work hereunder, and (vii) pursue and enforce any and all other rights or remedies of Company hereunder, at law or in equity.

18. Company Property – (a) Supplier shall pay when due all of its obligations to third parties incurred in the delivery of the Contract Work and shall keep Company’s property free and clear of all liens and other encumbrances arising out of the delivery of the Contract Work. If Supplier should breach this paragraph, then, in addition to any other rights which Company may have against Supplier, Company may withhold payment from Supplier until sufficient funds have been withheld to satisfy such obligations and/or to cause the release of such liens or other encumbrances. (b) Supplier shall fully acquaint itself with the work site and the location and nature of any underground facilities, including but not limited to, electrical transmission lines and petroleum and natural gas storage and transmission facilities, and Company shall not accept responsibility for failure of Supplier to effect such acquaintance. Company shall not be liable for any increase in consideration due to Supplier for failure of Supplier to anticipate difficulties which may be encountered. (c) Supplier shall perform all work in such manner as to cause a minimum of interference with Company’s operations and the operations of other contractors on the premises, shall take all necessary precautions (including those required by Company’s safety regulations) to protect the premises and all persons and property thereon from damage or injury and shall assume responsibility for the taking of such precautions by subcontractors, as well as Supplier’s and subcontractors’ employees, agents, licensees, permittees and their subcontractors. Upon completion of the Contract Work, Supplier shall leave the premises clean and free of all tools, equipment, waste materials and rubbish.

19. Confidentiality – Supplier (i) shall not advertise or publish, in any manner, that Company has placed any Order (ii) shall maintain as confidential and proprietary all information provided by Company pursuant to any Order and shall not divulge or disclose such information to third parties without the prior written consent of Company, (iii) shall not use such information to the detriment of Company, and (iv) shall return or destroy all such information upon termination or expiration of each Order.

20. Termination – Company may, by notice delivered to Supplier at any time, terminate any Order in whole or in part without cause, and thereupon Company shall be relieved of all further obligations hereunder (or in respect of the portion of this Contract identified in the notice) other than for the obligation to pay Supplier for the actual costs incurred for materials purchased and work performed up to the time the notice was given plus a reasonable allowance for overhead burden and profit and the reasonable non-recoverable costs incurred by Supplier as a result of such termination. The acceptance of liability, indemnities, representations and warranties set forth in each Order shall survive the termination of such Order and continue in full force and effect.

21. Force Majeure – Either party is excused from its obligations under an Order to the extent performance is delayed or prevented by any cause reasonably beyond its control, except financial, including but not limited to, fire, explosion, war, breakdown of machinery or equipment, strikes, labour disputes and government laws, orders or regulations. A party wishing to invoke this paragraph shall notify the other promptly in writing. A party invoking this paragraph shall employ all reasonable means to minimize the consequences to the other party and to rectify or terminate the force majeure event or its consequences. For greater certainty, Company shall be permitted to terminate any order pursuant to paragraph 20, notwithstanding that a force majeure event has occurred or is occurring.

22. Time – Time is of the essence in each Order.

23. General Provisions – Each Order along with any specifications, drawings and other documents referred to herein, comprises the entire agreement between the parties hereto with respect to the Contract Work and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter hereof. Each Order shall be deemed prepared through the joint efforts of the parties hereto and shall not be construed against one party as a result of the preparation, submittal or other event or negotiation, drafting or execution hereof. An amendment to an Order or any change in the Contract Work hereunder shall be effective only if made in writing and signed by both parties. Waivers are to be in writing and do not act to waive any other or future matter. If any provision of an Order is partially or completely unenforceable due to Applicable Law, such provision shall be deemed amended to the extent necessary to make it enforceable, if possible, and if not possible, shall be deemed deleted but the remaining provisions shall remain in full force and effect. The headings of the paragraphs are intended for reference only and not to be used in interpreting any Order.

24. Assignment – Neither of the parties may transfer, assign, delegate nor subcontract its rights or obligations under an Order, in whole or in part, without the prior written consent of the other party, provided, however, Company may assign any Order to an affiliate without Supplier’s consent. Each Order shall be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns.

25. Choice of Law – Each Order shall be governed by and construed, interpreted and applied in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein without giving effect to the principles thereof relating to conflicts of laws, and the parties irrevocably attorn to the exclusive jurisdiction of the courts of Alberta sitting in the City of Calgary for the interpretation hereof and the settlement of any disputes.

26. Costs of Legal Action – The prevailing party in any legal proceeding respecting an Order shall be entitled to recovery of all of its costs and expenses incurred in such legal proceeding, including, without limitation, reasonable attorneys’, expert witnesses’ and consultant fees, and court costs.

27. Limitation of Actions – The two-year period for seeking a remedial order under section 3(1)(a) of the Limitations Act, R.S.A. 2000 c.L-12, as amended, for any claim as defined in that Act arising in connection with any Order is extended to four years.