Terms and Conditions

1Acceptance; Agreement.  Supplier and BRC Engineering (the “Buyer”) agree to the express terms of this Purchase Order. In the event that any provision of any invoice, acknowledgment, quotation, or other document whatsoever provided by Supplier to Buyer conflicts with the provisions in this Purchase Order, the provisions of this Purchase Order shall control.  In the event that any provision in any invoice, acknowledgement, quotation, or other document whatsoever provided by Supplier to Buyer attempts to limit Supplier’s liability or restrict Buyer’s remedies, such provision shall be inconsistent with this Purchase Order and shall be void and unenforceable.  If any term contained in any order or other form used by Buyer to order goods under this Purchase Order or in any acknowledgment or other form used by Supplier is inconsistent with any term of this Purchase Order, this Purchase Order will take precedence unless Buyer agrees to such inconsistent term by a writing, signed by Supplier and Buyer, that specifically references this Purchase Order and specifically acknowledges such inconsistency.

2.  Termination for Convenience.  Buyer, for its convenience, may at any time terminate this Purchase Order in whole or in part upon 3 days’ written notice to Supplier. Upon the receipt of such notice, Supplier immediately will stop and will cause its suppliers and  its subcontractors immediately to stop, all work hereunder. Supplier will be paid a reasonable termination charge equal to the percent of the purchase price reflecting the amount of the work performed before the termination notice, plus actual direct costs resulting from the termination. Supplier will not be paid for any work done after termination nor for any reasonably avoidable costs thereafter incurred by Supplier’s or Supplier’s subcontractors.

3.  Default; Remedies.  If Supplier fails to perform any of the terms and conditions under this Purchase Order (including, without limitation, breach by late shipment or performance, defects in workmanship or materials or delivery of items which fail to conform to all specifications (including Buyer’s specifications) or samples or services which fail to conform to proposals), Buyer, in its sole discretion and upon seven (7) days’ written notice to Supplier, may declare Supplier to be in default. If Supplier does not remedy all defaults specified in the notice within the 7 days, Buyer, without further notice of any kind whatsoever, may: (a) cancel, in whole or in part, or refuse delivery in whole or in part, of any and all orders then outstanding between Buyer and Supplier, and (b) exercise any and all rights and remedies available at law and in equity. Supplier shall pay all Buyer’s legal fees and expenses including witnesses’ fees and all litigation costs incurred in enforcing this Purchase Order.

4.  Delivery.  Time is of the essence. Supplier shall notify Buyer at once if Supplier cannot fill this order or if shipment or performance is delayed for any cause whatsoever. If delivery of items or services or both is not completed by the time set out therefor in this Purchase Order, Buyer, without liability and in addition to its other rights and remedies, may terminate this Purchase Order by notice to Supplier effective when received by Supplier as to items not yet shipped or services not yet rendered and may purchase substitute items or services or both and charge Supplier with all additional costs and losses.

Delivery of the equipment or goods shall be DDP Destination. Title shall pass to Buyer upon delivery to theBuyer’s address as set out in this Purchase Order or to any other address specified in this Purchase Order. Risk of loss or damage shall pass to Buyer only upon Buyer’s final acceptance.

5.  Price Warranty.  Supplier warrants that the prices for all items and services sold hereunder are as favorable as prices currently extended to any other buyer for similar quality and quantities of the same or similar items or services or both. If Supplier reduces its price for such items or services or both during the term of this Purchase Order, Supplier will reduce Buyer’s prices correspondingly. Supplier warrants that prices shown on this Purchase Order are complete, and no additional charges of any type (including, without limitation, charges for shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating) will be added without Buyer’s express written consent.

6.  TaxesSupplier shall include sales, use, and other taxes in the Purchase Price of all goods and services provided to Buyer and shall separately account for such taxes.  To the extent that the Buyer is exempt from sales, use, and other taxes on the purchase of certain equipment under this Purchase Order, Buyer will provide Supplier with an exemption certificate or information which authorizes tax exempt purchases.  The Purchase Price shall be reduced by the amount of such exempt taxes it included in the Purchase Price.

7.  Warranty.  Supplier warrants that all items or services or both furnished under this Purchase Order will conform to all specifications (including the Buyer’s specifications) or samples or drawings, proposals and appropriate standards and will be free from defects in material and workmanship. Supplier warrants that all such items and services will conform to all statements made on the containers or labels or advertisements for such items or services or both, and that all items will be adequately contained, packaged, marked and labeled. Supplier warrants that all such items will be merchantable and will be safe and appropriate for the purpose for which items of that kind are normally used. Supplier represents that it knows or has reason to know the particular purpose for which Buyer intends to use the items or services or both, and Supplier warrants that such items or services or both will be fit for that purpose. Supplier’s warranty will survive Buyer’s inspection, testing, acceptance and use. Supplier’s warranty runs to Buyer and its successors and assigns. Upon notice from Buyer, Supplier will, at its expense, replace or correct defects of any nonconforming items or services or both, promptly and without expense to Buyer. If Supplier fails promptly to correct defects in, or to replace, nonconforming items or services or both, Buyer, after reasonable notice to Supplier, may make such corrections or replace such items and services and charge Supplier for the costs of doing so. All these obligations will survive the termination of this Purchase Order.  In addition to the foregoing, any commercial and/or off-the-shelf items supplied by the Supplier will have a warranty for one (1) year from the date they were supplied.

8.  SupportSupplier shall provide appropriate and trained tsupport during the the warranty period as necessary to ensure proper installation, commissioning, and use of all equipment and materials purchased by Buyer.  Supplier shall provide any necessary manuals and shall provide training to Buyer’s employees or representatives in the proper operation of the equipment or system.

9.  Software LicenseSupplier warrants that it owns or has the right to use all intellectual property, including computer software, necessary to perform its obligations under this Purchase Order, including without limitation the manufacture, delivery and installation by Supplier, and operation of the equipment, goods, or system for use by Buyer, without conflict with the rights of others.  Supplier assigns and transfers to Buyer the right and license to use any software, including third-party software or firmware, used to operate the equipment, goods, or system supplied to Buyer.

10.  Indemnification.  Supplier shall defend and indemnify Buyer against all damages, liabilities claims, losses and expenses (including legal fees, expenses and witnesses’ fees and all litigation costs) arising or resulting in any way from any defect in the items or services or both purchased hereunder or from any act or omission of Supplier, its agents, employees and subcontractors. This indemnification is in addition to Supplier’s other warranty and indemnity obligations under this Purchase Order.

11.  Patents.  Supplier will indemnify and hold harmless Buyer and its agents from any patent or similar proceedings based on items or services or both sold by Supplier hereunder, including, without limitation, claims for alleged patent or copyright infringement and claims arising from similarity in design, trademark or appearance of items or services or both furnished hereunder. This obligation to indemnify and hold harmless will extend to all expenses, losses, royalties, lost profits and damages (including, without limitation, litigation costs, legal fees and witnesses’ fees and settlement payments) resulting from any such suit or proceeding, threatened or brought. Upon receipt of notice from Buyer, Supplier promptly will assume full responsibility to defend and to resolve any such suit or proceeding brought or threatened against Buyer and its agents. Supplier will notify Buyer in writing of the selection of counsel for any such suit or proceeding, and will change counsel upon Supplier’s receipt, within 3 business days of Buyer’s written notice specifying Buyer’s good faith reasons for objecting. Buyer, at its option and expense, may be represented by, and actively participate through, its own counsel in any such suit or proceeding. All these obligations will survive the termination of this Purchase Order.

12.  Inspection; Rejection.  Payment for the items or services or both will not constitute acceptance of the goods or services provided by Buyer. Supplier will not substitute any items or services or both without Buyer’s prior written approval. Buyer may count, test and inspect all items and services furnished hereunder and reject any such items and services which in Buyer’s opinion are in excess of quantities ordered, defective or nonconforming. Supplier shall give Buyer reasonable notice requesting inspection of work done by Supplier under this Purchase Order. All or part of such rejected items may be returned at Supplier’s expense, including, without limitation, all transportation and handling costs. All or part of such rejected services may be replaced or completed at Supplier’s expense. For any latent defect or nonconformity in items or services or both, Buyer may require replacement, as well as payment of damages at the time of discovery. Nothing in this Purchase Order will relieve Supplier from its obligations of testing, inspection and quality control. The Supplier will allow verification arrangements and method of product release, if the Buyer and/or the Buyer’s customer requires to perform verification at the Supplier’s premises.

13.  Payment.  Without prejudice to any other right or remedy of the Buyer, the obligation of the Buyer to make any payment to the Supplier under or in connection with this Purchase Order is subject to the Buyer’s right to deduct or set off against any such payment any sum which may be due to the Buyer, or to which the Buyer has a claim under this Purchase Order. Payments may be withheld, in whole or in part, to protect Buyer from loss on account of any claims by the Buyer under this Purchase Order including the following:  a) liquidated damages; b) defective equipment, materials, or work of Supplier, which is not remedied; c) claims filed by third parties relating to items or services supplied by the Supplier; or d) damage to the Buyer or another person or entity caused by Supplier or Supplier’s subcontractors, material suppliers, or others for whom at law Supplier is responsible.

17.  Acceptance and Final Payment.  Upon final completion and acceptance of the Supplier’s work by the Buyer, including, if applicable, commissioning and training, Supplier shall submit an invoice for final payment, which shall be accompanied, if applicable, by all applicable certifications, drawings, manuals, and related/required documentation required by this Purchase Order. Buyer shall make final payment to Supplier within thirty days of receiving the invoice accompanied by the aforementioned information.

18.  Confidentiality; Buyer’s Property.  Supplier will consider all information furnished by Buyer to be confidential and will not disclose any such information to any other person without Buyer’s prior written consent. All plans, specifications, and other data furnished by Buyer will remain the property of Buyer and will be used by Supplier only in performing this Purchase Order. These duties of confidentiality and nondisclosure also extend to drawings, specifications, and other documents prepared by Supplier specifically in connection with this Purchase Order. Supplier will not disclose the fact of this Purchase Order or any other information relating to it without Buyer’s prior written consent. All these obligations will survive the termination of this Purchase Order.  Buyer shall be entitled to specific enforcement, including injunctive relief, of this provision in any court of competent jurisdiction.

19.  Delays.  Either party may delay delivery and/or acceptance occasioned by causes beyond its control and without its fault or negligence. At Buyer’s direction, Supplier will hold items or services or both and will deliver them when the cause effecting the delay has been removed, and in the event of such a delay in performance at Buyer’s direction, Buyer will be responsible only for Supplier’s direct additional costs in holding items or in delaying performance of services. Supplier will not be liable to Buyer for delays caused by any of Supplier’s subcontractors and occasioned by causes beyond the control of both Supplier and its subcontractors, unless the materials or services were obtainable elsewhere in time for Supplier to meet the delivery schedule for goods or services or both. Supplier will notify Buyer in writing within 10 days after the beginning of any such cause. Causes beyond the control of either party will include government action or failure of the government to act where such action is required, strike or other labor trouble, fire, and unusually severe weather provided however that financial impecunity shall not be considered a cause beyond the control of a party.

20.  Other Agreements. Supplier agrees to cooperate with and afford other vendors, suppliers, and contractors of the Buyer reasonable opportunity for the execution of their work and shall properly connect and coordinate its work and their work. Supplier shall be liable for any damage that it, its agents or employees may cause to any other vendor, suppler, or contractors of the Buyer, and shall hold Buyer harmless from such damage.

21.  Compliance with Laws.  Supplier will comply with all federal, provincial and local laws, rules and regulations applicable to the performance of this Purchase Order.

22.  Changes.  Buyer, by a signed written order, may notify Supplier of changes in the terms of purchase of the items or services or both purchased hereunder. If any such changes increase or decrease Supplier’s costs under this Purchase Order or change the date of delivery, the price or the delivery date or both will be adjusted accordingly, and this Purchase Order will be so modified in writing. All other modifications to this Purchase Order may be made only in a writing signed by both parties.

23.  Remedies.  The rights and remedies reserved in this Purchase Order are cumulative and additional to all other or further rights and remedies provided at law, in equity or in this Purchase Order.

24.  Insolvency.  If any proceeding is started by or against Supplier in bankruptcy, reorganization or insolvency or for the appointment of a receiver or for any assignment for the benefit of creditors, Buyer may terminate this Purchase Order without further liability except for conforming deliveries previously made.

25.  Entire Agreement.  The terms and conditions of this Purchase Order and all other documents referenced on its face constitute the entire agreement between the parties.

26.  Order of Precedence.  The typed provisions on the face of this Purchase Order take precedence over conflicting printed provisions. The provisions of documents incorporated by reference take precedence over the Standard Terms and Conditions of this Purchase Order.

27. Independent ContractorSupplier, its subcontractors, employees or agents are independent contractors for all purposes and at all times.  Buyer will incur no responsibility or obligation to employees, agents, subcontractors or other parties used by Supplier to perform this Purchase Order.  Such person or parties will, at all times, remain employees, agents or subcontractors (whichever is applicable) of Supplier.

Supplier is solely responsible for payment of wages, salaries, fringe benefits and other compensation of, or claimed by, Supplier’s employees and is responsible for all payroll taxes.  Supplier is also solely responsible for compliance with applicable Workers’ Compensation laws with respect to maintenance of workers’ compensation coverages on Supplier’s employees.  Supplier will indemnify and defend Buyer from all claims by any person, government or agency relating to payment of taxes and benefits, including without limitation, any penalties and interest which may be assessed against Buyer.  Supplier will similarly indemnify and defend Buyer from all claims by any person or governmental agency which arise directly or indirectly from any failure by Supplier to comply with applicable Workers’ Compensation laws with respect to maintenance of Workers’ Compensation coverage on Supplier’s employees.

28. General Conditions.  The terms and conditions of this Purchase Order bind Buyer and Supplier and their respective successors and assigns; provided, however, Supplier may not assign this Purchase Order or any moneys due or becoming due to Supplier hereunder without the prior written consent of Buyer. Buyer’s waiver of any term or condition will not constitute a waiver of any other term or condition or breach. If any part of this Purchase Order is invalid, the remaining terms and conditions will continue in full force and effect.

29. Disputes.  The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Purchase Order.  Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested.  The recipient of such notice will respond in writing within ten days with a statement of its position on and recommended solution to the dispute.  If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority shall meet at mutually agreeable time and place within twenty days of the date of the initial notice in order to exchange relevant information and to attempt to resolve the dispute.  Supplier shall continue to perform in accordance with the terms and conditions of this Purchase Order notwithstanding that a dispute may be outstanding.

30.  Notices Any notices or formal communications required by this Purchase Order shall be in writing and shall be sent to the addresses below (or such other address as either party may designate in a written notice to the other party):

Buyer: BRC Engineering
#6-655, 42 Ave, NE
Calgary, Alberta  T2E 6S1

Supplier: The address on the front of the Purchase Order

All notices may be hand delivered or be sent registered mail, return receipt requested, or sent via a nationally recognized delivery service that obtains a signature upon delivery (UPS, Federal Express, etc.). Notices shall be considered to have been received by the addressee on the date of delivery if delivered to the addressee or if sent by registered mail 5 business days following the date of mailing.

31. Assignment.  Buyer shall, in its sole discretion, be entitled to assign this Purchase Order, including all its obligations thereunder. Buyer, or if this Purchase Order is assigned by the Buyer, the assignee shall be entitled to grant a security interest to its lenders on any materials provided under this Purchase Order.  Supplier shall not be entitled to assign, transfer or otherwise dispose of any interest in this Purchase Order without the prior written approval of the Buyer which approval may be arbitrarily withheld.

32. The Governing LawThis Purchase Order shall be governed by and construed in accordance with the laws of the province of Alberta and the federal laws of Canada applicable therein.