Startec
The following terms shall have the meanings set forth herein:
Buyer: Startec Compression & Process Ltd. and its affiliates and subsidiaries;
Buyer Group: – Buyer, its employees, contractors, subcontractors, consultants, agents, customers, and their respective directors and officers, and the users of any Goods or Services;
Goods: – the materials, equipment, and parts to be delivered by Seller in accordance with the Purchase Order, as may be amended from time to time;
Purchase Order: Buyer’s order issued to Seller for the purchase of Work which incorporates these Standard Terms and Conditions, specifications and other documents or instructions as provided by Buyer;
Seller: the party providing the Goods and/or Services to Buyer;
Seller Group: Seller, its affiliates, contractors, subcontractors, consultants, and agents;
Services: the services to be provided by Seller in accordance with the Purchase Order, as may be amended from time to time;
Standard Terms Á Conditions: these Startec Compression & Process Ltd. Standard Terms & Conditions; and
Work: the Goods and Services provided by Seller to Buyer as set forth in a Purchase Order, as may be amended from time to time.
If a master agreement exists between Buyer and Seller to govern performance of the Work, the terms and conditions of such master agreement shall be read in conjunction with the Purchase Order; however, where they are in conflict the master agreement shall prevail. Seller’s written acceptance of the Purchase Order, or Seller’s commencement of the Work, shall constitute acceptance of the Purchase Order in its entirety. No additional or different terms and conditions, including those which appear in any quotation, acceptance, or acknowledgement of Seller, shall be of any force or effect unless Buyer expressly agrees in writing to such additional or different terms and conditions. Seller agrees that it will not assert, as a defense to the enforcement of the conditions of this Purchase Order, any limitation or other terms or conditions set out in its quotation, acceptance, or acknowledgement of the Purchase Order. Final Acceptance and payment for Goods shipped and/or Services rendered shall constitute Buyer’s acceptance of such Goods and/or Services subject to the provisions herein only.
Seller shall deliver the Work in accordance with the Purchase Order.
(i) Seller covenants and warrants that all Work performed pursuant to a Purchase Order shall strictly conform to Applicable Law, Codes and Standards, the specifications, data sheets, performance requirements, drawings, samples, or other description upon which the Purchase Order is based, shall be fit and sufficient for the particular purpose for which they are intended, merchantable, of good material and workmanship and free from defects and deficiencies. All Work shall be performed pursuant to best industry practices and performed by competent personnel who possess the necessary skills and qualifications to perform such Work. This warranty shall run to the benefit of Buyer, its customers and users of its products. Seller agrees to promptly repair or replace Work not conforming to the foregoing warranty (including the cost of removal and replacement of Goods), without expense to Buyer, when notified of such nonconformity by Buyer before the earlier of;
The Work shall be and remain at the risk of Seller until delivery to Buyer in accordance with the Purchase Order. (i) Care, Custody and Control for the Work produced under this Agreement, including Risk of damage to or loss and responsibility for preservation and storage shall transfer to the Buyer in accordance with the INCOterm 2020. (ii) Materials and components supplied by the Seller and its supply chain which are to be incorporated into the Work, shall be clearly marked with the Project No. and Title, and the Purchase Order number by the Seller and its sub-suppliers.
(i) Seller shall invoice for the Work in accordance with the Payment Instructions contained in the Purchase Order and Award e-mail. Invoices must be presented in the currency set forth in the Purchase Order, contain the coding prescribed in the Purchase Order and be accompanied by all applicable work tickets, third party invoices, bills of lading, shipping notices, Seller’s GST registration number and any other supporting documentation requested by Buyer. GST and PST, if applicable, shall be set forth as a separate line item. If requested by Buyer, Seller shall also provide WCB clearance certificates and statutory declarations for the Work. (ii) Delay in receiving invoices, or errors and omissions on invoices, will be considered just cause for withholding payment without forfeiting cash discount privileges. Subject to the terms herein, Buyer shall pay the undisputed portion of all complete invoices within forty-five (45) days of receipt. Seller shall provide a two percent (2%) discount for payments made by Buyer within ten (10) days of Buyer’s receipt of a correct and complete invoice. Upon receipt of a Shipping Release notice from Buyer, Seller shall provide electronically to Buyer copies of the invoice, the bill of lading and any specialized loading / unloading instructions. In the case of an international shipment, Seller’s submission shall also include a Canada Customs and Revenue Agency certified invoice, certificate of origin and other relevant documentation related to the Goods. Three (3) copies of Seller’s invoice must also accompany the shipment. If requested by Seller, Buyer shall also provide WCB clearance certificates and statutory declarations. Upon completion of a domestic shipment, Seller shall provide electronically to Buyer copies of the invoice and the bill of lading. Upon completion of a foreign shipment, Seller shall provide electronically to Buyer copies of the invoice and the bill of lading, as well as a Canada Customs and Revenue Agency certified invoice. Three (3) copies of Seller’s invoice must also accompany the shipment.
Without limiting Buyer’s rights and remedies hereunder, Seller shall be liable to and shall indemnify and save harmless the Buyer Group from and against any and all claims which may be brought against or suffered by the Buyer Group, or any of them, or which any member of the Buyer Group may sustain, pay or incur by reason of any matter or thing arising or relating to (i) a breach of the Purchase Order by Seller Group; (ii) the negligence, gross negligence or willful misconduct of the Seller Group in connection with, related to or arising out of the performance, purported performance or non-performance of the Goods or Services; (iii) Seller Group’s failure to comply with applicable laws; (iv) any claim of defect in the design, materials, manufacturer or sale of the Work; or (v) the actual or alleged infringement by Seller of any third party’s intellectual property rights. Under no circumstance shall Buyer be liable to Seller for any special, punitive, consequential, exemplary, incidental, or other indirect damages, including without limitation, any damages resulting from loss of product, production, revenue, profits (actual or anticipate), use, business opportunity or indirect loss of any similar kind, regardless of basis of claim.
Time is of the essence for Seller’s obligations relating to the Purchase Order. The detailed production schedule for the Goods and all hold points, testing and inspection requirements will be as set forth in the Quality Surveillance Levels and Purchase Order or as otherwise determined by Buyer, acting reasonably. Seller shall be liable for all costs and damages incurred by Buyer and arising from Seller’s failure to comply with the production schedule, including all costs and damages imposed or owed to Buyer’s customer, provided that if liquidated damages are specified on the Purchase Order, such damages shall be Seller’s sole monetary liability for such delay. Periodic production reporting shall be provided weekly or as otherwise directed by Buyer in a format specified by the Buyer, and shall contain all information reasonably required by Buyer, including without limitation a description of manufacturing activities and the percentage of Goods complete, hold points achieved, all test reports, QA/QC certificates and similar. Seller shall provide at least five (5) business days prior notice to attaining any hold points requiring inspection and release by Buyer or a third party, and Seller shall not proceed past such hold points without Buyer’s written approval. No inspection, approval or payment for the Work shall waive any of Buyer’s rights or affect or reduce Seller’s absolute obligation to provide the Work in strict conformance with this Purchase Order.
Shipments shall be routed in accordance with Buyer’s instructions, and Seller agrees to reimburse Buyer for all damages and expense incurred by Buyer as a result of improper packing, marking, or routing. The Purchase Order number, part number, line number, invoice number and packing slip number will appear on each package and bill of lading. Shipments in excess of those authorized may be returned to Seller, and Seller shall pay all related transportation charges. Buyer may from time-to-time change shipping schedules previously furnished to Seller, or direct temporary suspension of scheduled shipments. Buyer’s count will be accepted as final on all shipments. Unless otherwise expressly agreed to in writing by Buyer, Seller shall make no charge for containers, crating, boxing, bundling, dunnage, drayage or storage.
All patterns, tools, dies, or other material furnished by Buyer to Seller, or which are specifically paid for by Buyer, and any replacement thereof, or anything affixed or attached thereto, shall be and remain Buyer’s personal property. Such property, if it can reasonably be done, shall be plainly marked or otherwise adequately identified by Seller as “Property of Startec Compression & Process Ltd.”, and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for such and shall not use such property except for filling Buyer’s order. While in Seller’s custody or control, such property shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with the loss payable to Buyer, and shall be subject to removal at Buyer’s request.
Buyer will not pay Seller any state, provincial, or local sales, use, or similar tax unless Seller is required by law to collect such taxes from Buyer and such tax is separately stated or itemized on the invoice. Seller agrees that no tax for which an exemption is indicated herein, or is not otherwise required by law, is or will be included in the prices stated hereon, nor will they be subsequently charged. Seller agrees to pay any and all personal property and/or ad valorem taxes assessed or otherwise levied against any property provided by Seller to Buyer for the purpose of fulfilling this Purchase Order. Seller acknowledges that if it is a non-resident of Canada within the meaning of the Income Tax Act (Canada), that its provision of Work to Buyer may be subject to withholding taxes.
Seller shall maintain the following insurance coverage throughout the performance of this Purchase Order and for two (2) years following delivery of the Work: (i) Commercial and General Liability insurance with a limit of not less than Five Million Dollars ($5,000,000) for any one loss or occurrence and in the aggregate with respect to personal injury and property damage, which shall include coverage for employer’s liability/contingent employer’s liability, cross liability, contractual liability, tortious liability, personal injury, Buyer’s and contractor’s protective liability, products liability, completed operations liability, non-owned automobile liability and occurrence-basis property damage; (ii) Workers’ Compensation (or equivalent coverage) in accordance with applicable laws; (iii) Automobile Liability insurance with a limit of not less than Five Million Dollars ($5,000,000) covering all vehicles owned or operated by Seller in the performance of this Purchase Order; (iv) where applicable, Errors and Omissions insurance with a limit of not less than One Million Dollars ($1,000,000); and (v) any other insurance coverages required to guarantee Seller’s obligations herein, or as Buyer may reasonably require. Seller shall furnish certificates of all insurance coverages prior to commencing the Work. Buyer shall be added to all applicable insurance policies, and such policies shall contain a waiver of subrogation in favour of Buyer, a Broad Form Completed Operations Endorsement and a Cross Liability and Severability of Interest Clause.
Buyer may at any time make changes in the drawings, designs or specifications, method of shipping or packing, and the place of delivery of any Work covered hereby. Buyer shall propose a change in writing to Seller. If such change affects the delivery schedule or the price, Seller shall notify Buyer immediately and the parties shall agree to such changes, acting reasonably. If the parties cannot agree to the terms of the change within a reasonable length of time, Buyer may, acting reasonably, instruct Seller to make the change on such reasonable terms as Buyer determines and Seller shall accept and implement such change without prejudice to its right to subsequently dispute the terms of the change. No price increase shall be allowed unless approved by Buyer in writing, and production shall not be delayed pending determination of the change.
At its option, Buyer may terminate all or part of the Work contemplated by the Purchase Order. In such case, Buyer shall pay for all Work satisfactorily completed prior to such termination, and upon payment shall receive full title to the Work and shall have no further liability with respect to the Work. In no event shall Buyer be liable for prospective or anticipated profits by reason of such termination.
The following constitute Seller events of default: (i) Seller’s failure to conduct its operations in the normal course of business (including inability to meet its obligations as they occur); (ii) the instituting of any proceedings by or against Seller under the bankruptcy or insolvency laws; (iii) appointment of or application for a receiver for Seller; (iv) an assignment by Seller for the benefit of creditors; or (v) Seller’s breach or default in the performance of the Purchase Order (including its failure to comply with the production schedule). Upon such event of default, Buyer may exercise one or more of the following remedies without waiving any other remedy available to it at law or equity: (a) order a suspension of the performance of the Purchase Order until such default is fully remedied, in which case Seller shall not be entitled to any relief or compensation on account of such suspension; (b) take, at Seller’s cost, whatever steps and perform whatever tasks Buyer deems required to alleviate or remedy the default; (c) remove the incomplete Work from the Seller’s hands and complete such Work at Seller’s cost; (d) terminate this Purchase Order without further cost or liability; (e) enforce any guarantee or performance security provided by the Seller; and (f) withhold, without interest, all payments in whole or in part, to the Seller until Seller’s liability is determined and fully settled. Buyer shall be entitled to set off any amounts otherwise owed to the Seller against any amounts owed by Seller to Buyer.
Seller shall maintain all Buyer confidential information, whether in oral, written, magnetic, electronic, or other form, in the strictest confidence, and in all circumstances shall take no lesser precautions to prevent disclosure of this information than that prescribed by industry best practice. Any information of the type described herein, which is furnished by Buyer, shall remain Buyer’s property, shall be kept confidential by Seller, and shall be returned to Buyer at its request.
Seller warrants that the Work will not infringe any U.S., Canadian or foreign patent or other third-party intellectual property rights. In the event of such claim or allegation, Seller shall procure for Buyer and its customers the right to use such Work and Seller shall defend, indemnify, and save Buyer harmless from and against any and all loss, damage, expense, or liability that may result by reason of any patent infringement or alleged infringement.
If the Work involves operations by Seller on the premises of Buyer, or one of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to persons or property during the progress of such Work. Where Buyer’s customer has additional reporting, invoicing, indemnification, insurance, health, safety and environment or other requirements, Seller shall comply with such requirements and provide proof of the same upon request by Buyer.
Seller shall not be liable for delays or defaults in furnishing the Work, and Buyer shall not be liable for failure to accept the Work, if such delays or failure by either party are due to causes beyond their control, including acts of God or of a public enemy, acts of the Government of Canada/United States or any state, province or political sub-division thereof, fires, floods, explosions, or other catastrophes, labour disturbances, freight embargoes or delays of a supplier due to such causes of Seller’s delays as provided for in this paragraph. Seller shall make all commercially reasonable efforts to end such causes of delay or default. Buyer reserves the option to terminate the Purchase Order without penalty after fifteen (15) days from receiving Seller’s notice of Force Majeure upon written notice to Seller, or earlier if Buyer determines, acting reasonably, that such circumstances cannot be rectified within fifteen (15) days. In the event of a delay due to the fault or negligence of Seller, Buyer at its option may either approve a revised delivery schedule or terminate the Purchase Order without further liability to Seller. Notwithstanding the foregoing, this Paragraph 19 shall not apply to delays caused by lack of finances or financial capability of Seller.
Neither Seller Group, nor their respective subcontractors, employees or agents, shall be deemed to be Buyer’s employees or agents, it being understood that Seller and its subcontractors are independent contractors for all purposes and at all times, and Seller shall be wholly responsible for withholding or payment of all federal, provincial/state and local income and other payroll taxes with respect to its employees, including contributions from them and as required by law.
The Purchase Order constitutes the entire agreement between the parties regarding the subject matter, and supersedes all prior agreements, whether written or oral. Buyer’s failure at any time to enforce any of the provisions of the Purchase Order or any right with respect thereto, or to exercise any option herein provided, will in no way be construed to be a waiver of such provisions, rights, or options or in any way to affect the validity of the agreement. Buyer and Seller agree that the Purchase Order is not governed by the Convention on Contracts for the International Sale of Goods. The Purchase Order shall be governed by and construed exclusively in accordance with the laws of Alberta without reference to any conflict of laws principle that may require the application of laws of another jurisdiction. The Courts of Alberta shall have exclusive jurisdiction to entertain and determine all disputes and claims, whether for specific performance, injunction, declaration or otherwise howsoever both at law and in equity, arising out of or in any way connected with the Purchase Order. All Buyer’s remedies set out herein are in addition to any additional remedies Buyer may have at law, in equity or otherwise. Neither the Purchase Order nor any portion hereof shall be assigned or novated by Seller without Buyer’s prior written consent. Without such consent, any such assignment shall be void.
(i) Notice to Proceed: When Buyer determines that it is desirable for Seller to commence full performance of the Work, Buyer will deliver a notice in writing to Seller (the “Full Notice to Proceed”) setting forth the date upon which Seller is to commence performance of the Work. (ii) Limited Notice to Proceed: Prior to issuance of the Full Notice to Proceed, Buyer has the right to issue one or more limited notices to proceed (“Limited Notice to Proceed” or “LNtP”) directing Seller to commence and complete any portion of the Work, as specified in the Limited Notice to Proceed. Work performed under a Limited Notice to Proceed is governed by the terms of this Agreement, subject to any specifics of the Limited Notice to Proceed. (iii) If Full Notice to Proceed is not given and this Agreement is terminated (other than because of Seller Default) Seller will be compensated for the actual verifiable Reimbursable Costs all costs and expenses incurred in performing Work pursuant to the Limited Notice to Proceed, in accordance with terms of the LNtP. (iv) Termination prior to Full Notice to Proceed: Buyer is under no obligation to issue a Limited Notice to Proceed or a Full Notice to Proceed and shall have no obligation under this Agreement until it either issues a Limited Notice to Proceed or a Full Notice to Proceed, as applicable. Buyer may terminate this Agreement at any time prior to a Limited Notice to Proceed or Full Notice to Proceed without liability to Seller. Any termination of this Agreement prior to the Full Notice to Proceed shall be in accordance with the provisions of this Agreement.
Seller Group shall not advertise or publish the fact that Buyer has contracted the Work to Seller, nor shall any information related to this Agreement be disclosed without prior approval of Buyer.
(i) In the event of any dispute, disagreement or controversy (collectively a “Dispute”) arising during the performance of this Agreement, the Parties shall at all times make all reasonable efforts to resolve the Dispute by direct discussion and negotiation between the Representatives. (ii) If the Representatives fail to resolve the Dispute within a reasonable length of time, either Party may require that the Dispute be resolved by referring it to a committee made up of one upper management person from each Party, such persons not to have been involved in the day-to-day performance of the Agreement. (iii) If the committee fails to resolve the matter amicably within thirty (30) days of referral to the committee or such longer period as the Parties agree, the Dispute shall be submitted to final, binding arbitration before one arbitrator, pursuant to the then-current Arbitration Rules of the ADR Institute of Canada Inc. The arbitration shall take place in Calgary, Alberta in front of one arbitrator. (iv) In the event of Dispute, the Parties will not suspend or delay performance of the Work under the Agreement.
Seller’s aggregate liability shall be limited to the Purchase Order price and any applicable administrative charges. This limitation shall apply regardless of the source or cause of liability, or the legal theory under which it arises, including but not limited to breach or default of Seller’s representations, warranties, or covenants under the Purchase Order, tort, indemnity, warranty, negligence, strict liability, or alternative tort remedies, for any indirect, special, incidental, punitive, exemplary or consequential damages including, but not limited to, damage to associated equipment, loss of profits or revenue, loss of production, loss of use of Buyer’s property, plant, equipment or system downtime costs or claims of Buyer’s customers.
Hard copies of the Terms and Conditions can be considered uncontrolled.
For the most current revision, always confirm with Startec’s Document Management Group.
Document Date: 07-16-2024
Document Number: SCP-SC-TAC-001