TERMS AND CONDITIONS OF PURCHASE ORDER

Definitions and Meaning of Terms: In the Purchase Order, the following words and terms have the following meanings unless the context requires otherwise:

“Equipment” means all the equipment, if any, falling within the scope of the Purchase Order, as may be more specifically identified in the Purchase Order.

“Purchase Price” means the aggregate of all amounts payable by Purchaser to the Vendor for the Work, as set out in the Purchase Order.

“Regulatory Requirements and Standards” means all specifications, requirements and standards relating to the Work, the Equipment or construction (if any) prescribed under Federal and Provincial legislation, regulations, codes and guidelines or by regulatory bodies or authorities.

“Services” means all the services, if any, falling withing the scope of the Purchase Order, as may be more specifically identified in the Purchase Order.

“Work” includes all Equipment, Services and work referred to in the Purchase Order, and all other matters and things described or referred to in the Purchase Order as being provided by the Vendor under the Purchase Order.

Supply of the Work: The Vendor shall supply the Work together with all such other services and work as are necessary for or incidental thereto including supplying all labour, supervision, management, overhead, materials, supplies, construction plant, freight, handling, transportation and all other things necessary for or incidental thereto. Without limiting the foregoing, the Work shall include the supply and delivery of the Equipment and Services meeting all the requirements of the Purchase Order, and the performance of all other items or services as are described in the Purchase Order as being the responsibility of the Vendor or which are incidental thereto, all by the times and dates set forth in the Purchase Order.

Price: Unless stated otherwise, prices in the Purchase Order (the “Purchase Price”) are not subject to change, and include all labour, materials and other resources which may be necessary to perform the Work. Purchaser may, in its sole and absolute discretion, alter, increase, or reduce the Work or adjust the Date Required. In the event of any such change(s), the Purchase Price or the Date Required shall be adjusted by written agreement between Purchaser and Vendor.

Payment: Progress billings shall be submitted for work completed during the month, in accordance with payment schedule in the Purchase Order or, if not provided in the Purchase Order, a minimum of 5 business days prior to the last business day of the month.  Subject to the Purchase Order, payment will be made within 30 days of the end of the relevant month.  Purchaser will make payment to Vendor upon receipt of a duly executed statutory declaration in the form requested by Purchaser, subject to maintaining a holdback pursuant to applicable statutory holdback legislation. No payment made to Vendor, either wholly or in part, shall be construed as acceptance of any defective or non-conforming Work or improper material, or as relieving Vendor from its obligations or responsibilities under the Purchase Order or this Agreement.

Warranty, Title and Risk: Vendor expressly warrants that all Work delivered under the Purchase Order shall conform to any sample, drawings and specifications or any other description furnished or referenced by Purchaser and shall be fit for Purchaser’s intended purpose, of first class and agreed quality, of the highest standards of performance and free from defects in materials, design, or workmanship. Any defective or non-conforming Work shall be replaced, remedied or repaired at Vendor’s sole cost and expense (including costs of access, removal, and replacement). Vendor guarantees the Work against all latent defects in the whole or any part of said Work which appear at any time after delivery. These warranties are in addition to and do not restrict any warranties available to Purchaser at law.

Intellectual Property: The Vendor grants to Purchaser an irrevocable, assignable, nonexclusive, royalty-free and perpetual license to use the Work, including, but not limited to, all intellectual property rights embodied therein for constructing, owning, operating and maintaining the Terminal and to manufacture or have manufactured the equipment detailed in the Work.

Compliance with Laws, Rules and Standards: The Vendor shall be responsible for giving all notices and complying with all laws, ordinances, rules, regulations, guidelines, codes and standards relating to the Work wherever performed (including applicable rules imposed by the Purchaser and any agency of the Crown, and including the Regulatory Requirements and Standards) and including those relating to the preservation of the environment, to public health and to construction safety. The Vendor agrees to indemnify Purchaser and hold it harmless from and against any claim, penalty, losses, damages or expenses (including court costs and legal expenses) which might be made, imposed, suffered or incurred by reason of a negligence or an asserted or established violation of any such laws, ordinances, rules, regulations, guidelines, codes or standards. Authorizations, permits and licenses necessary for the prosecution of the Work shall be secured and paid for by the Vendor. The Vendor shall carry out at its expense all such alterations to the Work as may be required by any competent regulatory authority. The Vendor will also obtain and pay for any and all certificates required in connection with the equipment, goods or services supplied under the Purchase Order including the performance of the Work, and shall supply copies to Purchaser as requested. All certificates provided to the Vendor in connection with the Work or the performance of the Purchase Order, shall be assigned to Purchaser on Purchaser’s request.

Insurance: As applicable and unless otherwise indicated by Purchaser in the Purchase Order, Vendor shall furnish to Purchaser evidence of insurance in the form herein described, verifying the following minimum requirements:

Workers’ Compensation Insurance (as required by the jurisdiction where the Work or any portion thereof is being carried out);

Automobile Liability Insurance covering all Vendor’s licensed vehicles used in performing the Work, whether owned, rented or leased, with a minimum liability of not less than two million ($2,000,000) dollars inclusive of accidental injury to or death of one or more persons or damage to or destruction of property as a result of one accident or occurrence: and

Commercial General Liability with a minimum liability limit not less than five million ($5,000,000) dollars per occurrence and an aggregate not less than five million ($5,000,000) dollars. Commercial General Liability is to include bodily injury and property damage, personal injury and advertising injury, products and completed operations coverage including an additional insured endorsement and waiver of subrogation in favour of Purchaser

At Purchaser’s request, Vendor shall forthwith provide detailed certificates of insurance evidencing that such coverage is in force and effect with thirty (30) days’ notice of cancellation and/or material change to coverage. All insurance required shall contain an endorsement to the effect that Vendor’s insurance policies are considered primary and that any other policies shall be in excess only. Each such policy purchased by Vendor shall be endorsed to waive insurer’s rights of subrogation against Purchaser.

Termination: The Purchase Order shall automatically terminate upon the occurrence of any of the following events:

the bankruptcy or insolvency of Vendor or the filing against Vendor of a petition in bankruptcy where such petition remains undismissed for a period of thirty (30) days;

the making of an authorized assignment for the benefit of creditors by Vendor;

appointment of a receiver for Vendor;

upon Purchaser providing Vendor two (2) days written notice in the event that Vendor:

refuses or fails to supply sufficient or properly skilled employees, subcontractors, equipment, or materials fails to pay its subcontractors or suppliers as per the terms negotiated;

fails to adequately protect property or persons so as to ensure completion of the Work under the Purchase Order within the time specified;

abandons the Work;

delays unreasonably in completing the Work;

refuses or fails to comply with laws, ordinances, regulations or Purchaser’s instructions;

breaches any provision of the Purchase Order; or

where there is defective, non-conforming or damaged Work which Vendor has failed to rectify within five (5) days of receiving written notice of such defect from Purchaser.

Purchaser may also terminate the Purchase Order in whole or in part at any time upon seven (7) days written notice to Vendor, in which case Purchaser shall accept delivery of all customized Work completed prior to receipt of the notice. The actual demonstrated authorized costs incurred in the production of uncompleted customized Work shall be paid following delivery of the uncompleted customized Work, provided, however, that such amount plus amounts paid or payable for completed Work shall not exceed the total value of the Purchase Order. Purchaser shall not be liable to Vendor for: payment of stock items which have not been customized in connection with the Work, Vendor’s loss of profit, or Vendor’s overhead. This provision is without prejudice to any rights of Purchaser if deliveries of Work or parts thereof are in arrears.

Confidentiality: Vendor agrees to keep and treat as confidential the entire contents of the Purchase Order and this Agreement (the “Confidential Information”) and will not, without the prior express written consent of Purchaser, disclose the Confidential Information to any third party (other than for income tax and legal purposes). Vendor agrees not to release any declarations, communications, photographs, or advertising relative to the Purchase Order or this Agreement without Purchaser’s prior express written consent. Information to any third party (other than for income tax and legal purposes). Vendor agrees not to release any declarations, communications, photographs or advertising relative to the Purchase Order or this Agreement without Purchaser’s prior express written consent.

Laws: The parties irrevocably attorn to the exclusive jurisdiction of the laws and courts of the Province of Manitoba or the jurisdiction where physical construction work is being carried out.