When used in this Purchase Order: Vendor is called “Seller” and Startec Compression & Process Ltd. is called “Buyer” issuing this Purchase Order herein.
Acceptance of this purchase order shall be unqualified, unconditional, and subject to the terms and conditions herein. 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 this order. 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. Upon acceptance, this purchase order shall constitute the entire agreement between Buyer and Seller unless otherwise agreed to in writing by both Buyer and Seller.
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. Buyer’s purchase order number, part number, line number, and Seller’s 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 the transportation charges both ways for such shipments. 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.
Time of delivery is of the essence of this purchase order. The detailed production schedule for the goods and all hold points, testing and inspection requirements will be as contained in the purchase order or as otherwise determined by the Buyer, acting reasonably. Periodic production reporting shall be provided weekly or as otherwise determined 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, and all test reports, QA/QC certificates and similar. Hold points shall be as set out on the PO or as otherwise instructed by the Buyer. Seller shall provide at least two business days’ prior notice of 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 goods or services shall waive any of the Buyer’s rights or affect or reduce the Seller’s absolute obligation to provide the goods and services in strict conformance with this purchase order. During a 5 day period after delivery, Buyer shall inspect the Goods. If any Goods are defective, deficient or otherwise not in conformity with the requirements of the Purchase Order, as the sole and exclusive right and remedy of Buyer, Buyer may require Seller to credit, correct or replace the defective Goods at Sellers expense. Buyers failure to notify Seller in writing of the defect during the 5 day inspection period will be deemed to be Buyers acceptance of the Goods and will be conclusive evidence that the Goods are absent from any defects.
Seller shall not be liable for delays or defaults in furnishing goods or the services hereunder, and Buyer shall not be liable for failure to accept goods or services hereunder if such delays or failure on the part of either are due to causes beyond the control and without the fault or negligence of Seller in furnishing goods or services, or of Buyer in accepting goods or services, 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, labor 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 this purchase order without penalty after fifteen (15) days from the delivery date set forth hereon upon written notice to Seller, or earlier if the 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 this order without further liability to Seller. Notwithstanding the foregoing, this Section 3 shall not apply to delays caused by lack of finances or financial capability of the Seller.
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 hereon. Federal excise taxes charged to Buyer shall be separately stated or it shall be indicated as being included in the unit price. Seller agrees that no tax for which an exemption is indicated hereon or otherwise by Buyer 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 placed in the hands of Seller by Buyer, for the purpose of fulfilling this purchase order.
Seller covenants and warrants that all goods and services covered by this purchase order shall strictly conform to the specifications, data sheets, performance requirements, drawings, samples or other description upon which this order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects and deficiencies. This warranty shall run to the benefit of Buyer, its customers and users of its products. Seller agrees to promptly repair or replace goods or services not conforming to the foregoing warranty (including the cost of removal and replacement of the goods), without expense to Buyer, when notified of such nonconformity by Buyer before the earlier of twelve (12) months from initial start-up of the goods or eighteen (18) months from completion of the equipment into which the goods are incorporated. In the event Seller fails to promptly correct defects in or replace nonconforming goods, Buyer after reasonable notice to Seller, may make such corrections or replace such good and services and charge Seller for costs of materials, labor, transportation or other costs incurred by Buyer. In addition to any other remedies it may have, Buyer may reject nonconforming goods and return them to Seller at Seller’s expense; nonconforming goods may not be replaced without Buyer’s written authorization. Seller agrees to indemnify and save harmless Buyer, its agents and customers and the users of any goods and services covered by this order from any and all liability, loss or damage (including those related to personal injury, death and property damage) which may be incurred by them or any of them arising out of or in connection with or related to any claim of defect in the design, materials, manufacture or sale of such goods or services, or arising out of the Seller’s negligent acts or omissions or breach of the terms of this purchase order.
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 goods and/or work covered hereby. Buyer shall propose a change in writing to the Seller. If such changes affect 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 the Seller to make the change on such reasonable terms as the 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 under this 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 goods. Buyer shall have no further liability with respect to goods or components procured, or work done, or supplies partially fabricated, in excess of authority contained in this order or in any shipment release and issued to Seller pursuant hereto. In no event shall Buyer be liable for prospective or anticipated profits by reason of such termination.
The following constitute Seller events of default:
(a) Seller’s failure to conduct its operations in the normal course of business (including inability to meet its obligations as they occur) or
(b) the instituting of any proceedings by or against Seller under the bankruptcy or insolvency laws, or
(c) appointment of or application for a receiver for Seller, or
(d) an assignment by Seller for the benefit of creditors, or
(e) Seller’s default in the performance of this purchase order or breach of any term or condition of this purchase order; or
(f) Seller’s 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: (i) order a suspension of the performance of the purchase order until such default is fully remedied, in such case Seller shall not be entitled to any relief or compensation on account of such suspension; (ii) take, at Seller’s cost, whatever steps and perform whatever tasks Buyer deems required to alleviate or remedy the default; (iii) remove the incomplete goods from the Seller’s hands and complete such goods at Seller’s cost; (iv) terminate this purchase order without further cost or liability; (v) enforce any guarantee or performance security provided by the Seller; and (vi) 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.
If Seller’s work under this purchase order 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.
Seller shall maintain the following insurance coverage throughout the performance of this purchase order and for two years following delivery of the goods and/or services: (i) Commercial and General Liability insurance in an amount not less than five million Canadian dollars ($5,000,000) which shall include completed operations and product liability coverage; (ii) Automobile insurance in an amount not less than two million dollars ($2,000,000) covering all vehicles owned or operated by Seller in the performance of this purchase order; (iii) such insurance as is necessary to cover the full replacement value of the goods in the event of damage or destruction prior to delivery; (iv) insurance, if any, specified in Section 0; and (v) workers compensation (or equivalent coverage) in accordance with applicable laws. Seller shall furnish certificates of all insurance required by this purchase order at Buyer’s request. Buyer shall be added as an additional insured to the Commercial and General Liability insurance, and such policy shall contain a waiver of subrogation in favour of the Buyer and such policy shall contain a Broad Form Completed Operations Endorsement and a Cross Liability and Severability of Interest Clause.
Seller warrants that the goods sold hereunder 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 Startec and its customers the right to use such goods 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.
Seller shall secure written approval from Buyer before any specifications, records, drawings, data, computer programs, program documentation, or any other technical information relating to this purchase order (other than relating to Seller’s own standard commercial items) are released to anyone other than those requiring the information for the performance of work under this purchase order. Any information of the type described hereinabove, 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 agrees to comply with all applicable federal, provincial/state and local laws, and to indemnify Buyer against all liability for Seller’s failure to so comply.
Neither Seller nor its subcontractors, or the employees or agents of any of them, 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 time, 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.
Invoices shall be provided at the milestones and in the manner set out on the purchase order. Delay in receiving invoices or errors and omissions on invoices, will be considered just cause for withholding payment without losing cash discount privileges. Subject to the terms of this agreement, Buyer shall pay the undisputed portion of all satisfactory invoices within  days of receipt.
Foreign Seller Invoices - Upon completion of the shipment hereunder, Seller shall provide one original invoice and one Canada Customs and Revenue Agency (“Canada Customs”) invoice certified in accordance with the requirement of Canada Customs. Such documents shall be provided electronically to the email address on the purchase order. Three copies of such invoices must also accompany the shipment. Bills of lading and other shipping documents must correspond in all details with certified invoices.
Domestic Seller Invoices - Upon completion of the shipment hereunder, Seller shall provide invoice plus one copy of the bill of lading. Such documents shall be provided electronically to the email address on the purchase order. Goods and Services Tax (“GST”) must be shown as a separate line item on each invoice and must not be included in the piece price.
All invoices shall provide the Seller’s GST registration number.
If the performance of the purchase order involves professional services (including engineering, design work or other similar services): (i) all such services shall be completed to no less a standard of care than that demonstrated by reputable, competent, experienced, diligent practitioners providing similar services; (ii) all professional services and the results thereof shall comply in all regards with all applicable laws, regulations and industry guidelines; (iii) all services shall be performed by competent experienced personnel who possess all necessary qualifications, permits and legal entitlement to provide such services; and (iv) Seller shall maintain errors and omissions insurance in the amount of one million dollars ($1,000,000) to provide insurance for the Seller’s negligent acts or omissions with respect to the professional services.
Buyer’s failure at any time to enforce any of the provisions of this 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 this agreement.
The goods shall be and remain at the risk of the Seller until delivery to the Buyer in accordance with the IncoTerm set out in the purchase order. Buyer shall acquire an ownership interest in the goods in proportion to the percentage of the purchase price paid for such goods, and upon payment for the goods, Buyer shall obtain full and clear title to the goods without any liens, charges, interests or encumbrances thereon.
Neither this 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.
When accepted as set forth in paragraph 1, the purchase order and all incorporated terms and conditions and documents will constitute a binding agreement on the Buyer and on the Seller. The Seller waives notice of acceptance by the Buyer.
Buyer and Seller agree that this Purchase Order is not governed by the Convention on Contracts for the International Sale of Goods. This purchase order and the agreement constituted by the acceptance of this purchase order by Seller 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 this 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.
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: 10-02-2020
Document Number: SCP-SC-TAC-004