PURCHASE ORDER AND SERVICE CONTRACT – TERMS AND CONDITIONS


Purchase Order and Service Contract terms and conditions for Tarco Consulting Inc. / Tarco International Inc. / Tarco Systems Inc., herein referred to as “Buyer”.

The terms and conditions set out below shall apply to purchases of Goods under purchase orders and purchases of Services under service contract (hereafter collectively referred to as “Purchase Orders”) by Buyer as follows:

  • Sections 1 and 3 shall apply to purchases of Goods, including Goods which are provided by Seller in connection with what is otherwise a purchase of Services by Buyer.
  • Sections 2 and 3 shall apply to purchases of Services, including Services which are provided by Seller in connection with what is otherwise a purchase of Goods by Buyer.

The term “Goods” includes equipment, materials, supplies and other goods to be provided by Seller to Buyer under Buyer’s Purchase Order, whether or not specifically set out in the Purchase Order, as well as all specifications, instructions and installation, operating and maintenance manuals necessary for the installation, operation and maintenance of the Goods.

The term “Services” includes all labour, work and other services to be provided by Seller to Buyer under the Purchase Order, whether or not specifically set out in the Purchase Order.

The term “Delivery Point” means the point at which Goods are to be delivered by Seller to Buyer, as shown in the Purchase Order or as otherwise agreed to by the parties.

1. Terms and Conditions applicable to the Purchase of Goods

1.1. WARRANTIES

1.1.1. Seller shall provide the Goods to the Buyer in accordance with the terms and conditions of the Purchase Order. FOB Tarco office as per Incoterms (2011), if set out elsewhere in the Purchase Order, apply to the Purchase Order – in the event of any inconsistency between such Incoterms and the other terms and conditions of the Purchase Order, the other terms and conditions shall govern.

1.1.2. Seller represents and warrants that the Goods supplied shall be of the kind and quality specified, free from fault in design, workmanship and material, shall be new and of good and merchantable quality and shall perform in accordance with the specifications and drawings, if any, referred to in the Purchase Order. All Goods shall at all times be subject to Buyer’s inspection but neither Buyer’s inspection nor failure to inspect shall relieve Seller of any obligations hereunder. If any Goods fail to conform with specifications or drawings or are otherwise defective, Buyer may, in its sole discretion, reject all of the Goods purchased under the Purchase Order or any portion thereof, and they may be held or returned upon notice to Seller to the Delivery Point and Buyer shall be entitled to a refund in full or at Buyer’s option, Seller shall promptly repair or replace same at Seller’s sole expense.

1.1.3. Unless specified otherwise, the warranties in this section 1.1 shall continue in full force and effect notwithstanding any termination of the Purchase Order by Buyer and shall extend for a period of (i) eighteen (18) months from the date of transfer of title of Goods, or (ii) twelve (12) months from the date of start-up of the Goods or start-up of the equipment into which the Goods are incorporated, whichever period ends first.

1.1.4. Where Goods are repaired or replaced under the above warranties, such Goods shall be warranted for a new period of (i) eighteen (18) months from the date of completion of such repair or replacement, or (ii) twelve (12) months from the date of restart-up of the Goods or restart-up of the equipment into which the Goods are incorporated, whichever period ends first.

1.1.5. Seller shall bear all costs for repair or replacement of Goods under the above warranties.

1.2. TITLE

1.2.1. Seller represents and warrants that Buyer shall receive clear and unencumbered title to the Goods supplied and that the Goods may be acquired, owned, held, used and disposed of by Buyer without infringing on any patent, industrial design, copyright or trademark whether foreign or domestic.

1.2.2. Title to each item included in the Goods shall pass to Buyer on the earlier of payment for such item and its delivery to the Delivery Point. Notwithstanding the foregoing, all Goods shall remain under the care, custody and control of Seller and at the risk of Seller until their acceptance by Buyer at the Delivery Point.

1.3. CERTIFICATE OF ORIGIN

1.3.1. Seller shall at Seller’s cost, prepare and issue to Buyer, Certificate(s) of Origin for Goods sold pursuant to the North American Free Trade Agreement (NAFTA) and shall provide copies of the issued Certificate of Origin to the customs administration of Seller’s and Buyer’s home country upon request as well as provide all information requested by either customs administration in respect of the issued Certificate(s) of Origin. Seller shall maintain records in respect of the Certificate of Origin for five (5) years or such longer period as required by law. Seller shall otherwise comply with Seller’s obligations under NAFTA.

1.3.2. Seller shall defend, indemnify and save Buyer harmless from and against all liability, loss and cost incurred for additional duties, tariffs and penalties imposed by either customs administration, resulting from the Certificate(s) of Origin furnished with respect to Goods being found to be incomplete, false or otherwise invalid in whole or in part, or arising out of a breach by Seller of section1.3.1. above. Seller’s indemnity herein shall extend to costs arising from any resulting redetermination or reassessment with respect to any of the Goods.

1.4. PACKAGING

1.4.1. Seller shall ensure all Goods are packaged in such a manner to ensure the Goods are transported and delivered to Buyer without sustaining damage. Items specified in the Purchase Order are to be packaged adequately by the Seller to prevent damage resulting from handling during delivery. If damage results and it is determined by Buyer, acting reasonably, that packaging was substandard for any particular delivery, replacement of damaged Goods will be at the cost of the Seller.

1.5. TAGGING AND SHIPPING

1.5.1. Seller shall place or affix the number of the Purchase Order on all invoices, packing slips, packages, containers and related correspondence.

1.5.2. Seller shall deliver the Goods to the Buyer on the delivery date stated in the Purchase Order. Unless otherwise specified, the Goods shall be delivered FOB to the destination stated in the Purchase Order, Freight Prepaid (as such terms are defined in the Uniform Commercial Code).

1.6. PAYMENT TERMS

1.6.1. Payment terms in respect of the Goods shall be as specified on the Purchase Order. Unless otherwise specified on the Purchase Order, invoices shall be due and payable thirty (30) days after their receipt by Buyer.

1.7. INSURANCE FOR THE PURCHASE OF GOODS

1.7.1. Seller shall, at its own expense, obtain and maintain during the term of the Purchase Order, commercial general liability insurance of not less than one million ($1,000,000.00) dollars per occurrence covering bodily injury, death and property damage, including products liability, which insurance shall include Buyer as an additional insured and provide a waiver of subrogation in the Buyer’s favour. This insurance shall be primary for all purposes, without right of contribution from any other insurance available to Buyer, and shall contain cross liability coverage via a separation of insureds clause.

2. Terms and Conditions applicable to the Purchase of Services

2.1. PERFORMANCE

2.1.1. Seller shall diligently and carefully perform the Services in strict accordance with the Purchase Order and shall furnish all labour, supervision, tools and equipment necessary therefore and, if directed by Buyer, shall provide all Goods required in connection with the Services.

2.1.2. Unless otherwise agreed to in writing by Buyer, Seller shall immediately upon completion of the Services remove from Buyer’s premises all its equipment, surplus materials and debris and shall leave such premises in a tidy condition.

2.1.3. Title to all work product resulting from the Services shall pass to Buyer as such product is completed. Notwithstanding the foregoing, the Services and all work product shall remain at the risk of Seller until completion of all the Services specified in Purchase Order.

2.2. WARRANTY

2.2.1. Seller represents and warrants to Buyer that:

2.2.1.1. Seller shall perform the Services in a professional and workmanlike manner, in accordance with the standards of care, thoroughness and competence normally practiced by recognized firms in the industry performing Services of a similar nature;

2.2.1.2. Seller shall perform the Services in full compliance with all specifications, drawings and other documentation shown on the Purchase Order or otherwise agreed to by the parties;

2.2.1.3. Seller shall employ only competent and experienced personnel to perform the Services;

2.2.1.4. all work product resulting from the Services shall be of the kind and quality specified, free from fault in design, workmanship and material;

2.2.1.5. all equipment supplied or used by Seller to perform the Services shall be modern, in good working condition and suitable for the satisfactory completion of the Services; and

2.2.1.6. in performing the Services, it shall take, accept and comply with instructions from the Buyer or its representative and shall comply and require its subcontractors and suppliers to comply, with policies and procedures that may be issued from time to time in writing by the Buyer or its representative governing the conduct of such persons while on the site of the Services.

2.2.2. The above warranties shall continue in full force and effect notwithstanding any termination of the Purchase Order by Buyer and shall extend for a period of twelve (12) months after completion of the Services. Seller shall, during such period, reperform all Services that were performed incorrectly or otherwise do not fully comply with the above warranties.

2.2.3. Where Services are reperformed under the above warranties, such Services shall be warranted for a new period of twelve (12) months from the date reperformance is completed.

2.2.4. Seller shall bear all costs for reperformance of the Services under the above warranties.

.2.5. Seller, at Buyer’s request, shall assign to Buyer the benefit of all warranties or similar obligations provided by any subcontractor or supplier. Seller shall ensure that all warranties or similar obligations provided by a subcontractor or supplier are assignable to Buyer without the consent of the subcontractor or supplier.

2.3. INSURANCE FOR THE PURCHASE OF SERVICES

2.3.1. Seller and each of its subcontractors, of every tier, shall, at its own expense, obtain the insurance described below on or before commencement of the Services and thereafter maintain such insurance until the end of the warranty period prescribed herein:

2.3.1.1. Commercial general liability insurance of not less than one million ($1,000,000.00) dollars per occurrence covering bodily injury, death and property damage, including products and completed operations liability.

2.3.1.2. Seller shall meet all statutory requirements in respect of workers compensation and auto liability insurance coverages in the jurisdiction where the Services are to be performed.

2.3.1.3. For professional services providing advice, design or services that typically required professional certification or licensing: If the Seller’s commercial general liability insurance excludes professional liability claims that could arise out of the scope of Services under the Purchase Order, Seller shall then also carry Professional Liability insurance, with a limit of not less than one million ($1,000,000.00) dollars per occurrence. For certain types of consulting services, this requirement may be waived by Buyer.

2.3.2. All insurance shall include Buyer as an additional insured and provide a waiver of subrogation in the Buyer’s favour unless not permitted by law. This insurance shall be primary for all purposes, without right of contribution from any other insurance available to Buyer, and shall contain cross liability coverage via a separation of insureds clause.

2.3.3 Upon request, Seller shall provide proof, satisfactory to Buyer, of the above required insurance. Buyer shall not be obligated to review any of Seller’s certificates of insurance, insurance policies and/or endorsements or advise Seller of any deficiencies in such documents, and any receipt of copies or review by Buyer shall not relieve Seller from or be deemed a waiver of Buyer’s right to insist on strict fulfillment of Seller’s obligations hereunder.

2.3.4 Seller’s compliance with the provisions of this section shall not constitute a limitation of Seller’s liability for its acts or omissions or in any way limit, modify, or otherwise affect Seller’s indemnification obligation pursuant to the Purchase Order. The insolvency, bankruptcy, or failure of any insurance company carrying insurance for Seller, or failure of any such insurance company to pay claims asserted, shall not abrogate, waive or alter any of Seller responsibilities or liabilities hereunder.

2.4. ENVIRONMENT, HEALTH AND SAFETY

2.4.1. Without limiting the generality of section 3.9 below, the parties agree as follows:

2.4.1.1. Seller shall, and shall ensure that its employees, agents, subcontractors and suppliers, comply with all applicable laws, regulations, by-laws, permits, approvals or other lawful requirements imposed or issued by any federal, provincial, or municipal governments relating to environmental protection as well as any environmental rules imposed by Buyer from time to time.

2.4.1.2. Buyer may at any time evaluate Seller’s environmental practices and procedures.

2.4.1.3. Seller shall be responsible for ensuring its employees, agents, subcontractors and suppliers at all times comply with applicable federal, provincial and municipal occupational health and safety laws and regulations as well as any additional safety rules imposed by the Buyer from time to time.

2.4.1.4. Seller shall furnish evidence of compliance with Worker’s Compensation legislation applicable at the site(s) at which the Services shall be performed.

2.4.1.5. At Buyer’s request, Seller shall:

2.4.1.5.1. develop, maintain and adhere to such safety precautions and programs as are required to prevent injury to persons or damage to property on, about, or adjacent to the site of the Services;

2.4.1.5.2. ensure that all Seller and subcontractor personnel have received all necessary training in respect of the matters covered by subsections

2.4.1.5.1 above. Training or implementation of additional health and safety measures appropriate for the Services may be specified by Buyer from time to time. Seller shall provide Buyer with written documentation verifying completion of the above;

2.4.1.5.3. immediately report to Buyer any incident or near miss involving Seller personnel, the public, or property, arising from Seller’s performance of the Services; and

2.4.1.5.4. whenever Seller has not complied with its obligations under the Purchase Order and creates a circumstance requiring immediate action to ensure the health and safety of persons present at any site of the Services, Buyer may take or require Seller to take such reasonable precautions, including stoppage of Services, required to remedy such circumstance. The taking of such action or actions by Buyer (or its failure to do so) shall not limit Seller’s liability or its obligations under the Purchase Order. Seller shall reimburse Buyer for all reasonable costs incurred by Buyer in taking such precautions and any costs incurred by Seller for such precautionary action and any subsequent remedial action shall be borne by Seller.

2.4.1.6. Buyer reserves the right to require the Seller to remove from any site of Services any personnel, whether of Seller or any subcontractor or supplier, not properly observing or complying with the health and safety requirements of the Purchase Order or any safety program or safety instructions given by, or on behalf of the Buyer.

2.4.1.7. Notwithstanding any other provision herein and notwithstanding any health and safety measures provided by Buyer, Seller shall be solely responsible for the health and safety of personnel employed by it or its subcontractors as well as any other person at the site(s) of the Services for any purpose relating to the Services. Seller specifically acknowledges that any information regarding specific risks provided by Buyer to Seller, whether contained in the Purchase Order or otherwise, is not intended to be exhaustive and shall not diminish Seller’s overarching obligations under this subsection.

2.4.1.8. Unless Buyer otherwise directs, Seller and all subcontractors shall attend the following health and safety meetings:(a) pre-job orientation; (b) an orientation prior to entering any site of Services; (c) daily tailgate briefings; and (d) such other meetings required by Buyer from  time to time to review the status of the Services and Seller’s compliance with the requirements of the Purchase Order.

2.5. PAYMENT TERMS

2.5.1. Unless otherwise specified on the Purchase Order, the following payment terms shall apply to purchases of Services:

2.5.1.1. In the case of a lump sum price for the Services, no invoice shall exceed an amount that is proportionate to the Services performed during the period covered by such invoice. Invoices shall include such information as Buyer may require.

2.5.1.2. In the case of hourly rates in respect of the Services, invoices shall, for the period covered by the invoice, include a statement of hours expended by each of Seller’s personnel at their applicable hourly rates, the dates upon which such hours were expended and a description of Services provided, together with such other information as Buyer may require.

2.5.1.3. Unless otherwise specified on the Purchase Order, invoices shall be due and payable thirty (30) days after their receipt by Buyer.

3. Terms and Conditions applicable to all Purchases

3.1. PRICE

3.1.1. No increases in the price or other charges shown or referred to on the Purchase Order, including taxes or customs and excise duties, shall be payable by Buyer unless such increases are authorized by Buyer under its standard “Change Order” form.

3.1.2. No payment or acceptance of Goods or Services by Buyer hereunder shall constitute a waiver with respect to any provisions of the Purchase Order, nor shall anything herein contained be construed to limit any warranties or conditions implied by law.

3.1.3. If any error is discovered in an invoice rendered to Buyer, such error shall be adjusted within thirty (30) days from the date of discovery of such error, provided however, that there shall be no adjustment made for any error discovered more than twenty-four (24) months after receipt of an invoice by Buyer.

3.1.4. Unless otherwise specifically provided for in the Purchase Order, Seller assumes exclusive liability for and shall pay to the appropriate government authority before delinquent, all sales, use, excise and other taxes, charges or contributions of any kind or with respect to or measured by the Goods or the Services supplied and Seller shall indemnify and save Buyer harmless from any liability and expenses by reason of Seller’s failure to pay such taxes, charges or contributions.

3.1.5. All taxes and duty rebates, remissions, exemptions or other such savings shall be for the account of Buyer and accordingly, shall reduce the price shown on the Purchase Order. In the event that Buyer has already paid the price shown on the Purchase Order, Seller shall pay all amounts received in respect of rebates, remissions, exemptions or other such savings to Buyer within ten (10) days of their receipt. Seller shall apply promptly for all available rebates, remissions and exemptions in compliance with applicable law.

3.2. TIMELY PERFORMANCE

3.2.1. Except in the case of an excusable event of force majeure under section

3.12, Seller shall deliver all Goods and perform and complete all Services in accordance with time schedules referred to the Purchase Order or otherwise agreed to by the parties.

3.2.2. If it is reasonably anticipated that Seller may fail to deliver Goods or perform and complete all Services within the above time periods, whether as a result of an event of force majeure or not, Seller shall forthwith take all steps necessary to expedite performance so as to prevent such failure. Except in the case of an excusable event of force majeure under section

3.12, any additional costs resulting from such steps shall be borne by Seller.

3.3. SUBCONTRACTORS

3.3.1. Seller may not subcontract any part of the Purchase Order without the prior written approval of Buyer and such approval shall not operate to relieve Seller of any liability to Buyer under the Purchase Order.

3.3.2. Seller shall enter into written contracts with subcontractors that include provisions requiring them to perform in accordance with and subject to the terms and conditions of the Purchase Order.

3.3.3. Seller shall be fully responsible to Buyer for any and all acts and omissions of subcontractors.

3.4. ENTIRE AGREEMENT AND CHANGES

3.4.1. The Purchase Order shall constitute the entire agreement between Buyer and Seller and no terms or conditions, other than those stated herein, and no agreements or understandings, oral or written, in any way purporting to modify the Purchase Order, shall be binding on Buyer unless documented by Buyer’s written authorization thereof under its standard “Change Order” form.

3.4.2. Without limiting the generality of the foregoing, the quality, quantity and other specifications of the Goods or Services to be supplied shall not be changed from those referred to on the Purchase Order or otherwise agreed to by Buyer and Seller without Buyer’s written authorization thereof under its standard “Change Order” form.

3.5. INDEMNITIES

3.5.1. Seller shall defend, indemnify and save Buyer harmless from and against any and all loss, liability or expense, including without limitation, reasonable legal fees, Buyer may suffer or incur by reason of:

3.5.1.1. any claim or suit, including, without limitation, any claim or suit for alleged infringement of any patent, industrial design, copyright or trademark, resulting from or arising in connection with the manufacture, sale, use or other disposition of any of the Goods or the provision of any of the Services;

3.5.1.2. any and all damage to or loss or destruction of any property, including without limitation, property of Seller, any subcontractor or Buyer; or

3.5.1.3. injury to or death of any persons, including without limitation, employees of Seller, any subcontractor or Buyer, arising out of or in connection with any act, omission or default by Seller or any subcontractor or employee of Seller under the Purchase Order.

3.5.2. Notwithstanding the foregoing, neither party shall be liable for any indirect, special, incidental or consequential damages or damages for loss of profits which the other may suffer or incur in connection with a breach of the Purchase Order.

3.6. CONFIDENTIALITY

3.6.1. Seller shall not use or disclose to any third person any data, designs, drawings, specifications or other information, whether or not similar to the foregoing (collectively, the “Confidential Information”) belonging to or supplied by or on behalf of Buyer except in the performance of the Purchase Order. Upon completion of the Purchase Order or upon Buyer’s earlier request, all Confidential Information, including any copies thereof, shall be returned to Buyer. Where Buyer’s Confidential Information is furnished to Seller’s suppliers in connection with the performance of the Purchase Order, Seller shall insert the substance of this provision in its orders and shall ensure compliance with such provision by its suppliers.

3.7. TERMINATION FOR DEFAULT

3.7.1. Failure of Seller to comply with any express or implied provision of the Purchase Order, or Seller’s insolvency, voluntary bankruptcy, receivership or assignment for the benefit of creditors shall entitle Buyer, without limiting any other rights or remedies Buyer may have, to terminate all or part of the Purchase Order without payment of any costs or expenses to Seller. Upon such termination, Buyer shall be relieved of all further obligations hereunder.

3.7.2. Time is of the essence. If Seller fails or it is reasonably anticipated that Seller will fail to deliver the Goods or perform the Services to be supplied within the time periods specified or in accordance with the specifications, then Buyer may terminate the Purchase Order or any part thereof, without payment of any costs or expenses to Seller.

3.8. TERMINATION FOR CONVENIENCE.

3.8.1. Without limiting Buyer’s rights under section 3.7 above, Buyer may, in its sole discretion, terminate the Purchase  Order at any time, in whole or in part by written notice to Seller. Upon receipt of such notice, Seller shall immediately discontinue any Services or efforts in respect of provision of Goods being performed in connection with the Purchase Order except as directed by Buyer. Upon such termination, and subject to audit, Buyer shall reimburse Seller for Seller’s actual direct out-of-pocket costs incurred in connection with the Purchase Order to the effective date of termination and such other termination costs as the parties may mutually agree to.

3.9. COMPLIANCE WITH LAWS AND POLICIES

3.9.1. Seller shall comply with all applicable laws, regulations, by-laws, permits, approvals or other lawful requirements imposed or issued by any federal, provincial, or municipal governments. Seller shall also comply with any business conduct policies and safety and security rules imposed by Buyer from time to time. Seller shall ensure that its employees, subcontractors and agents are made aware of and comply with the above laws, regulations, by-laws, permits, approvals, policies and rules and shall furnish Buyer with such evidence of compliance as Buyer may require from time to time.

3.10. INDEPENDENT CONTRACTOR

3.10.1. The parties acknowledge and agree that Seller is an independent contractor and nothing contained in the Purchase Order or otherwise nor any past relationships or course of dealings between the parties shall be construed as constituting a joint venture or partnership or establishing a relationship of principal and agent, master and servant, or employer and employee. Seller shall be solely responsible for the performance of the Services and such Services shall be performed by Seller according to its own methods and at its own risk, subject only to compliance with the provisions of the Purchase Order.

3.10.2. Seller, in keeping with its independent status, shall cause itself and any of its employees when applicable, to be registered with the appropriate government agencies for the purpose of Workers’ Compensation, Employment Insurance, Canada Pension Plan and Income Tax.

3.11. SET-OFF

3.11.1. Buyer shall be entitled at all times to set-off against any amount due or owing to Seller under the Purchase Order, such amounts that, in the reasonable opinion of Buyer, are sufficient to (i) cover any account owing from Seller to Buyer or to any of its affiliated companies, or (ii) protect Buyer from any defects or deficiencies in the Services performed or any other failures by Seller to comply with the requirements of the Purchase Order.

3.11.2. Buyer shall further have the right, but not the duty, to withhold any monies payable by it hereunder and apply same to the payment of any obligations of Seller to Buyer or any other parties arising in connection with the Purchase Order.

3.12. FORCE MAJEURE.

3.12.1. Neither party shall be liable for damages arising or incurred during the time and to the extent that such party is prevented or delayed from complying with its obligations hereunder in whole or in part by any cause except financial, beyond the reasonable control of the party affected including but not limited to strikes, lockouts, acts of God, war, laws, orders or regulations of governmental bodies or agencies or unavoidable accidents. Nothing herein contained shall be deemed to impose upon any party hereto any obligation to settle any labour dispute on terms which, in the sole discretion of the party affected, are not in the best interests of such party. Any party failing or delaying in the performance of its obligations here under due to any cause aforesaid shall, within forty-eight (48) hours of discovering such cause, give the other party notice in writing of such cause or causes and the consequences thereof, including a reasonable estimate of the anticipated delay in performance, and it shall use, to the best of its ability, reasonable diligence to remedy the same. Notwithstanding the foregoing, Buyer may terminate the Purchase Order pursuant to section

3.8 herein in the event of such delay or anticipated delay in performance. For greater clarity, Seller shall not be permitted to rely on this provision as a result of any act, omission or failure of any vendor, supplier or subcontractor of Seller or any other third party, unless such act, omission or failure is caused by an event which would itself be excused under this provision if occurring directly to Seller.

3.13. LIENS

3.13.1. Seller shall keep Buyer’s premises free and clear of any and all liens, charges and encumbrances arising in connection with the performance of the Purchase Order.

3.13.2. Buyer may withhold a lien hold back from the price agreed to be paid to Seller for the purpose, in the manner, in the amount and for the time provided under all applicable laws, rules and regulations. In the event that any lien, charge or encumbrance is filed against Buyer’s premises in connection with the Purchase Order or any claim shall exist in connection with the Purchase Order which may form the basis for any lien, charge or encumbrance against Buyer’s premises, Seller shall at its sole cost take such steps as are necessary to immediately discharge the lien, charge or encumbrance. If such lien, charge or encumbrance has not been discharged within forty-eight (48) hours of notice from Buyer, Buyer may in its sole discretion take such steps as it deems necessary to discharge such lien, charge or encumbrance, including withholding amounts payable under the Purchase Order. Seller shall be liable for and shall indemnify and save Buyer harmless from any and all costs and expenses (including legal fees) and other liabilities arising from such lien, charge or encumbrance.

3.14. DRAWINGS AND SPECIFICATIONS

3.14.1. Unless otherwise agreed to by the parties, all drawings, blueprints, specifications, dies, patterns and tools, whether supplied by Buyer or prepared or constructed by Seller as required for the completion of the Purchase Order, or for repair, replacement or re-performance pursuant to the warranty provisions hereunder, shall be the property of Buyer.

3.15. LAW

3.15.1. The Purchase Order shall be deemed to be in agreement made in the Province of Alberta and shall be construed in accordance with the laws of the Province of Alberta. Any action to be brought in respect thereof shall be brought in the courts of the Province of Alberta. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to the Purchase Order.

3.16. BUYER’S RIGHTS

3.16.1. Seller agrees that any right, cause of action or remedy under the warranties or undertakings assumed or imposed upon Seller under the Purchase Order shall extend without exception to any company affiliated with Buyer on whose behalf the Purchase Order is issued by Buyer.

3.16.2. All rights and remedies provided in favour of Buyer hereunder are in addition to and without prejudice to any other rights and remedies to which Buyer may lawfully be entitled, including without limitation, under and by virtue of the provisions of the Sale of Goods Act as amended from time to time, or any equivalent legislation, in force in the jurisdiction indicated in section 3.15 hereof.

3.16.3. The failure of Buyer to insist upon strict performance by Seller of any of the terms and conditions of the Purchase Order shall not be deemed a waiver of any rights or remedies that Buyer may have at law or in equity in respect thereof and shall not be deemed a waiver of any subsequent default by Seller.

3.17. MISCELLANEOUS

3.17.1. The headings contained herein are provided for convenience only and are not to be considered when interpreting or construing the Purchase Order.

3.17.2. No right, title, estate or interest in the Purchase Order and no obligations or duty or liability of Seller shall be transferred, assigned, set over, conveyed, pledged, hypothecated or otherwise disposed of without the prior written consent of Buyer, which consent may be given or withheld in the sole discretion of Buyer.

3.17.3. Each notice, statement and invoice to be given pursuant to the Purchase Order shall be in writing and shall be sent by prepaid ordinary or registered mail, by facsimile or by courier to the addresses and facsimile numbers for Buyer and Seller noted on the Purchase Order. Notices, statements and invoices sent by mail shall be deemed to have been received five (5) days following the mailing thereof and those sent by facsimile or courier shall be deemed to have been received on the first business day following the day on which they were sent.

3.17.4. Seller’s written acceptance of the Purchase Order, or the shipment of any of the Goods or the commencement of any Services to be supplied shall constitute acceptance of the Purchase Order, including these terms and conditions.

3.17.5. If this and any other documents are transmitted by any means of electronic transmission, such transmission shall have the legal significance of a duly executed original delivered to Seller.

3.17.6. Seller shall not use Buyer’s, or those of its affiliates, names, logos, trade names, trademarks or copyrights, or the fact that Seller is performing Services or supplying Goods for Buyer or its affiliates, in any press release, media statement, advertisement or other public communications or otherwise publicize the Purchase Order without the prior written consent of Buyer.

3.17.7. Except as provided in section 1.1.1 above, in the event of any conflict or inconsistency between these terms and conditions and the Purchase Order, the provisions of the Purchase Order shall govern.

3.17.8. Any direction given by Buyer with respect to the performance of the Services or any review, inspection or approval by Buyer with respect to any Services or any goods shall not relieve seller from its responsibilities, obligations or liabilities under the Purchase Order.

3.17.9. The Purchase Order shall not be deemed or construed to have been amended as a result of the acceptance or acquiescence by a party in a course of conduct of the other party, even though the accepting or acquiescing party knows of that conduct and refrains from objecting to it, but each party may at any time insist upon strict compliance by the other party with the terms of the Purchase Order.

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