NorthPoint Technical Services, ULC – Terms and Conditions for the Sale of Goods and Services

  1. APPLICABLE TERMS. These terms and conditions (these “Terms”) govern the sale and performance of equipment, components, parts and materials (“Products”) and services (“Services”) provided by NorthPoint Technical Services, ULC (“NorthPoint”) to the buyer (the “Buyer”) of such Products and/or Services specified in the applicable purchase order. These Terms, any other applicable addenda attached hereto, NorthPoint’s proposal, price quote, purchase order or any acknowledgement issued by NorthPoint form the parties’ final agreement (the “Agreement”). In the event of any ambiguity or conflict between these documents, precedence shall apply in accordance with the order written in the previous sentence. NorthPoint’s proposal, offer or acceptance is conditioned on Buyer’s acceptance of this Agreement. Any additional or conflicting terms in Buyer’s request for proposal, specifications, purchase order or any other written or oral communication are not binding on NorthPoint unless separately signed by NorthPoint. NorthPoint’s failure to object to Buyer’s additional or conflicting terms does not operate as a waiver of the terms contained in this Agreement.
  2. PRICING & PAYMENT. Prices and payment terms are: (i) as stated in NorthPoint’s proposal, or if none are stated; (ii) if no prices and payment terms are stated in NorthPoint’s proposal, NorthPoint’s standard rates in effect when NorthPoint receives Buyer’s purchase order. If neither (i) nor (ii) apply, then NorthPoint’s standard rates for Services shall be those in effect at the time NorthPoint renders the Services and NorthPoint’s rates for Products shall be those in effect at the time of shipment.

(a) Payment – Unless stated in NorthPoint’s proposal, all payments are due net thirty (30) days from the invoice date in Canadian Dollars.

(b) Interim Billing – NorthPoint shall be permitted, on and subject to the provisions of these Terms including Sections 5 and 8 hereof, or otherwise in its sole discretion, to render interim invoices on account of all Products and Services whether or not fully completed or delivered, or as specified in any applicable purchase order.

(c) Credit Approval – All orders are subject to credit approval by NorthPoint. NorthPoint may modify, suspend or withdraw the credit amount or payment terms at any time. If there is doubt as to Buyer’s financial condition, NorthPoint may withhold manufacturing and/or shipment of Product and performance of Services, require cash payments or advance payments, or require other satisfactory financial security before manufacturing and/or shipment of Product and performance of Services.

  1. (d)  Taxes – Unless stated in writing by NorthPoint, NorthPoint’s rates exclude charges for taxes, excises, fees, duties or other government charges related to the NorthPoint Products and Services. Buyer will pay these amounts or reimburse NorthPoint. If Buyer claims a tax or other exemption or direct payment permit, Buyer will provide a valid exemption certificate or permit and indemnify, defend and hold NorthPoint harmless from any taxes, costs and penalties arising from same. Increases, changes (including in application), adjustments or surcharges which may be incurred are for Buyer’s account.
  2. (e)  Late Payments – Late payments over 90 days shall bear interest at an annual percentage rate of twelve percent (12%) or the highest rate allowed by law, whichever is lower.
  3. (f)  Disputed Invoice – If Buyer disputes all or any portion of an invoice, it must first deliver written notice to NorthPoint of the disputed amount and the basis for the dispute within twenty- one (21) days of receiving the invoice. If the Buyer does not notify NorthPoint of any dispute in a timely way (as determined by NorthPoint in its sole discretion), that shall constitute a waiver of Buyer’s claim. If Buyer only disputes a portion of the invoice, Buyer must pay the undisputed portion in accordance with Article 2(a). Upon resolution of the dispute in favor of NorthPoint, Buyer must pay the invoice or the remainder of the invoice, plus any accrued interest on the late payment.

(g)Suspension/Termination Right – NorthPoint may suspend Services and manufacturing and/or shipment of Product if an undisputed invoice is more than thirty (30) days past due. NorthPoint may terminate this Agreement if an undisputed invoice is more than forty-five (45) days past due. Unless otherwise prohibited by law, NorthPoint may also terminate this Agreement immediately in the event of a material adverse change in the Buyer’s financial condition, including, but not limited to bankruptcy, insolvency, or liquidation.

  1. (h)  Installment Shipment of Product – Where Products are delivered in shipments or only part of a shipment fails to comply with this Agreement, the Buyer may only reject the non- compliant portion. Buyer will separately pay for each shipment. If NorthPoint holds or stores Products for Buyer, it shall do so at Buyer’s sole risk and expense.
  2. (i)  Shipping, Packing and Handling of Product – Unless stated in writing by NorthPoint, NorthPoint’s prices exclude charges for freight, unloading, storage, insurance, taxes, excises, fees, duties or other government charges related to the Products. Buyer will pay these amounts or reimburse NorthPoint. NorthPoint’s prices include the costs of its standard domestic packing only. Any packing deviation will be charged to Buyer. Increases, changes (including in application), adjustments or surcharges which may be incurred are for Buyer’s account.
  1. RISK OF LOSS AND SCHEDULE OF SERVICES. Services shall be performed at the location identified in the Agreement (the “Site”). Risk of loss of or damage to Buyer’s equipment, including equipment, materials, components and items of any kind for which NorthPoint uses to provide Services under the Agreement (collectively, ““Equipment”), shall remain with Buyer at all times during the performance of the Services hereunder. If Buyer procures or has procured property damage insurance applicable to occurrences at the Site, Buyer shall obtain a waiver by the insurers of all subrogation rights against NorthPoint. Any performance or completion dates are estimated dates only. NorthPoint is not liable for any loss or expense incurred by Buyer or Buyer’s customers if NorthPoint fails to meet any such dates.
  2. DELIVERY; TITLE; RISK OF LOSS OF PRODUCTS. Products will be delivered F.O.B. NorthPoint point of shipment with title and risk of loss or damage passing to Buyer at that point. Buyer is responsible for all transportation, insurance and related expenses. The related expenses shall include any taxes, duties or documentation fees. NorthPoint may make partial shipments. Any shipping, delivery and installation dates are estimated dates only. NorthPoint is not liable for any loss or expense incurred by Buyer or Buyer’s customers if NorthPoint fails to meet its delivery schedule.
  3. TRANSPORTATION AND STORAGE OF PRODUCTS.

(a)When Products are ready for shipment, NorthPoint will: (i) inform Buyer, and Buyer will then promptly give shipping instructions to NorthPoint; (ii) determine the method of transportation and shipment routing; and (iii) ship the Products with freight prepaid by normal transportation. If Buyer does not provide timely shipping instructions, or does not otherwise comply in a timely fashion with its other obligations and requirements under this Agreement as determined by NorthPoint in its sole discretion, including the obligations as more specifically set out in Section 8 hereto, NorthPoint may ship the Products, whether or not the Services have been fully completed, by normal transportation means to Buyer or to a storage location selected by NorthPoint. Buyer will pay or reimburse any excess storage costs and transportation charges for special or expedited transportation.

(b)If Products are placed into storage, delivery occurs and risk of loss transfers to Buyer when the Products are placed on the carrier for shipment to the storage location. If the Products are to be stored in the facility where manufactured, delivery occurs and risk of loss transfers to Buyer when placed in the storage location.

Buyer will pay all NorthPoint’s storage expenses, including but not limited to, preparation for and placement into storage, handling, freight, storage, inspection, preservation, maintenance, taxes and insurance, upon receipt of an invoice(s) from NorthPoint. When conditions permit and upon payment to NorthPoint of all amounts due, Buyer must arrange, at its expense, to remove the Products from storage. Buyer bears the risk of loss, damage or destruction to Products in storage.

  1. CANCELLATION. Buyer may cancel this Agreement at any time on thirty (30) days written notice. Buyer shall have no right to defer shipment of Product. Except for NorthPoint’s right to immediately terminate in accordance with Article 2, either party may terminate this Agreement for material breach of the other party, provided that the breaching party has not remedied the breach or commenced to cure the breach within a reasonable period, having due regard to the nature of the breach. In the event of a termination or cancellation, unless the Agreement includes a defined termination or cancellation schedule, Buyer is liable for cancellation charges, including without limitation: (i) the full price for any completed NorthPoint Products and Services; (ii) the allocable portion of the price as determined by NorthPoint for any partially completed NorthPoint Product and Services, including reasonable overhead and profit, (iii) reasonable demobilization costs, and (iv) payments due to subcontractors which cannot be: (1) cancelled without any payment obligation; or (2) refunded.
  2. FORCE MAJEURE / DELAYS. If either party is unable to perform or suffers delay in performance, due to any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, inclement or unusually severe weather conditions, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, or acts or inaction of government, the time of performance will be extended by a period equal to the length of time it takes to overcome the effect of the event. In addition, NorthPoint shall be entitled to be compensated by Buyer for reasonable and direct

additional costs of Service incurred during such event. NorthPoint will notify Buyer within a reasonable time after becoming aware of any such event. If there are force majeure delays exceeding 180 days in the aggregate, NorthPoint may terminate the Agreement pursuant to Article 6. Failure to pay shall not constitute a force majeure delay.

  1. BUYER’S REQUIREMENTS. NorthPoint’s performance is contingent upon Buyer timely complying with and fulfilling all of its obligations under this Agreement. These obligations include the Buyer supplying all requested information and direction deemed necessary by NorthPoint, in its sole discretion, in order for it to satisfactorily perform, complete, or deliver the Products and Services, as specified in any purchase order, as well as all necessary access to Equipment and Products, where applicable, and all required parts, components, equipment or materials provided by Buyer or that exist in the Equipment which were not manufactured or supplied by NorthPoint or which were originally supplied by NorthPoint and subsequently repaired, serviced or otherwise altered by any party not affiliated with NorthPoint (collectively, “Third Party Parts”), documents, permits and approvals needed for NorthPoint to perform including, but not limited to, accurate technical information and data, drawing and document approvals, and all necessary commercial documentation. Buyer shall provide access to the Site as reasonably required by NorthPoint for the performance of the Services. Subject to Section 7 of these Terms, in the event the Buyer does not comply with its obligations under this Agreement, North Point may render an interim invoice as set out in Section 5 of these Terms and take the steps outlined in Section 5 hereof. Further, NorthPoint may request a change order for an equitable adjustment in prices and times for performance, as well as to adjust for any additional costs or any delay arising as a result of any action or inaction of Buyer, Buyer’s contractors, successors or assigns to meet these obligations or any other obligations in this Agreement. Buyer shall also maintain the Site in a safe condition, notify NorthPoint promptly of any site conditions requiring special care, and provide NorthPoint with any available documents describing the quantity, nature, location and extent of such conditions, including any Material Safety Data Sheets (MSDS) related to all hazardous materials at the Site which may impact the NorthPoint Products and Services.
  2. INDEMNITY. NorthPoint and Buyer (each as an “Indemnitor”) shall indemnify, hold harmless and defend the other (“Indemnitee”) from and against all third party claims alleging bodily injury, death or damage to a third party’s tangible property, but only to the extent caused by the Indemnitor or its subcontractor’s negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of negligence. No part of Buyer’s Site or other property of Buyer (or Site Owner) is considered third party property. Indemnitee shall provide the Indemnitor with prompt written notice of any third-party claims covered by this Article. Indemnitor has the unrestricted right to select and hire counsel, and the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitee’s behalf. Indemnitee shall not make any admission(s) which might be prejudicial to Indemnitor and shall not enter into a settlement without the express permission of Indemnitor. The indemnity for both the Buyer and Seller shall be limited to the amount of professional services covered as part of the Agreement.

10. WARRANTIES.

  1. (a)  Warranties. NorthPoint warrants that: (i) it will perform the Services in a professional and workmanlike manner; (ii) each Product is free from defects in material and workmanship; (iii) each Product materially conforms to NorthPoint specifications that are attached to, or expressly incorporated into this Agreement; and (iv) at the time of delivery, NorthPoint has title to each Product free and clear of liens and encumbrances (the “Warranties”). The Warranties do not apply to software furnished by NorthPoint. The sole and exclusive warranties for any software are set forth in the applicable Software License/Warranty Addendum.
  2. (b)  Remedies. If the Services or Product fail to meet the warranty standards set forth in Article 10(a) within the applicable Warranty period defined in Article 10(c), and Buyer promptly reports such non-conformance to NorthPoint during the above mentioned Warranty period, NorthPoint shall at its own expense as Buyer’s sole and exclusive remedies for breach of the Warranties: (i) for Services, re-perform the relevant Services or, in NorthPoint’s sole discretion, refund Buyer the pro rata portion of the fees paid to NorthPoint under this Agreement allocable to the nonconforming Services; and (ii) for Product, at NorthPoint’s discretion, repair or replace the Product, or its non-conforming parts, within a reasonable time period, or refund of all or part of the purchase price. The warranty on repaired or replaced Product, Services or parts is limited to the remainder of the original Warranty period. Unless NorthPoint agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) gaining access to the Product or Services; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit NorthPoint to perform its warranty obligations; (iii) transportation to and from the NorthPoint factory or repair facility; and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by the Buyer with Article 10(d) or from their deteriorated condition. All exchanged Products replaced under this Warranty will become the property of NorthPoint.
  3. (c)  Warranty Period. Buyer must provide written notice of any claims for breach of the Warranties by: (i) for Services, within three (3) months from completion of the Services; and (ii) for Product, the earlier of twelve (12) months from initial operation of the Product or eighteen (18) months from shipment. Additionally, absent written notice within the applicable Warranty period, any use or possession of the Product or Services after expiration of the applicable Warranty period is conclusive evidence that the applicable Warranties have been satisfied.
  4. (d)  Conditions to the Warranties. The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the Product and Equipment other than by NorthPoint or its authorized representatives; (ii) Buyer handling, using, storing, installing, operating and maintaining the Product and Equipment in compliance with any parameters or instructions in any specifications attached to, or incorporated into this Agreement, (iii) or in the absence of such conditions, parameters or instructions or to the extent not applicable, in accordance with the generally accepted industry standards applicable in the locale where the Services are being performed and having regard to the nature of the Product and Services; (iv) Buyer discontinuing use of the Product and Equipment after it has, or should have had knowledge of any defect in the Product or Equipment; (v) Buyer providing NorthPoint with reasonable access to operating and maintenance data as requested by NorthPoint, (which may include secure broadband connection). Without expense to NorthPoint, Buyer shall provide to NorthPoint and NorthPoint’s subcontractors and their respective employees and agents on a twenty four (24) hours a day, seven (7) days a week basis, access to the Site, and each unit, including rights of way and easements required for safe access of such persons and equipment, as well as, to the extent applicable, online access to the Site, including to an installed remote monitoring system and to all units, as necessary to permit NorthPoint to perform the Services; (vi) Buyer providing prompt written notice of any warranty claims within the Warranty Period; (vii) at NorthPoint’s discretion, Buyer either removing and shipping Product or Equipment or non-conforming part thereof to NorthPoint, at Buyer’s expense, or granting NorthPoint reasonable access to Products or Equipment to assess the warranty claims; (viii) Product and Equipment not having been subjected to accident (including force majeure), alteration, abuse or misuse; and (ix) Buyer not being in default of any payment obligation. Buyer shall provide, without cost to NorthPoint, access to the nonconformity by disassembling, removing, replacing and reinstalling any Equipment, materials or structures to the extent necessary to permit NorthPoint to perform its warranty obligations.

(e)Exclusions from Warranty Coverage. The Warranties do not apply to (i) any product not supplied by NorthPoint; (ii) any Third-Party Parts or Equipment; or (iii) to services not performed by NorthPoint pursuant to this Agreement. NorthPoint will have no liability to Buyer under any legal theory for such products, Third Party Parts, Equipment, services or any related assignment of warranties. Any Product that is described as being experimental, developmental, prototype, or pilot is specifically excluded from the Warranties and is provided to Buyer “as is” with no warranties of any kind. Normal wear and tear is excluded, including any expendable items that comprise part of the Product (such as fuses, light bulbs and lamps). NorthPoint does not warrant or guarantee that any Product will be secure from cyber threats, hacking or similar malicious activity. Products that are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end user against unauthorized access.

  1. (f)  Transferability. The Warranties are only transferable during the warranty period and only to the Product’s initial end-user.
  2. (g)  THE WARRANTIES IN THIS ARTICLE 10 ARE NORTHPOINT’S SOLE AND EXCLUSIVE WARRANTIES, CONDITIONS AND GUARANTEES AS TO NORTHPOINT PRODUCTS AND SERVICES AND ARE SUBJECT TO THE LIMITS OF LIABILITY IN ARTICLE 11 BELOW. NORTHPOINT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.

11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NORTHPOINT IS NOT LIABLE, WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY

FLUCTUATION, CLAIMS ARISING FROM BUYER’S THIRD PARTY CONTRACTS, OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.

NORTHPOINT’S MAXIMUM LIABILITY UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE RECEIVED BY NORTHPOINT UNDER THIS AGREEMENT.

THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS ARTICLE 11 WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF NORTHPOINT HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS ARTICLE 11 EXTEND TO NORTHPOINT’S AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, AGENTS AND SUCCESSORS AND ASSIGNS OF NORTHPOINT.

IN THE EVENT THAT PHYSICAL LOSS OR DAMAGE TO THE BUYER’S PROPERTY RESULTS FROM THE FAILURE OF A PORTION OF THE NORTHPOINT PRODUCTS AND SERVICES TO CONFORM TO ITS RESPECTIVE WARRANTY DURING THE APPLICABLE WARRANTY PERIOD NORTHPOINT’S LIABILITY SHALL IN NO CASE EXCEED NORTHPOINT’S OBLIGATION TO PERFORM THE REMEDIES SPECIFIED IN ARTICLE 10, AS APPLICABLE, WHICH NORTHPOINT WOULD HAVE HAD TO PERFORM IF SUCH REMEDY HAD BEEN CARRIED OUT IMMEDIATELY PRIOR TO THE OCCURRENCE OF THE PHYSICAL LOSS OR DAMAGE.

  1. PATENT AND COPYRIGHT INFRINGEMENT. NorthPoint will, at its own option and expense, defend or settle any suit or proceeding brought against Buyer based on an allegation that any processes performed by NorthPoint in connection with the NorthPoint Products and Services constitutes an infringement of any Patent Cooperation Treaty (“PCT”) country member’s patent or misappropriation of a third party’s trade secret or copyright in the country where the Buyer’s Site is located. Buyer will promptly give NorthPoint written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. NorthPoint shall have full and exclusive authority to defend and settle such claim and will pay the damages and costs awarded against NorthPoint in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to NorthPoint and shall not enter into a settlement without NorthPoint’s consent. If and to the extent any process performed by NorthPoint in connection with the NorthPoint Products and Services as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, NorthPoint will, at its option and expense, either: (i) procure for Buyer the right to continue using said process; (ii) replace it with substantially equivalent non-infringing process; or (iii) modify the process so its use is non-infringing. NorthPoint will have no duty or obligation under this Article 12 if the process is: (i) performed according to Buyer’s design or instructions and compliance therewith has caused NorthPoint to deviate from its normal course of performance; (ii) modified by Buyer or its contractors after performance; or (iii) combined by Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of such design, instruction, modification or combination, a suit or proceeding is brought against NorthPoint, Buyer must protect NorthPoint in the same manner and to the same extent that NorthPoint has agreed to protect Buyer under this Article 12. THIS ARTICLE 12 IS AN EXCLUSIVE STATEMENT OF NORTHPOINT’S DUTIES AND BUYER’S REMEDIES RELATING TO PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
  2. CONFIDENTIALITY.
  1. (a)  Both during and after the term of this Agreement, the parties will treat as confidential all information obtained from the disclosing party and all information compiled or generated by the disclosing party under this Agreement for the receiving party, including but not limited to business information, the quotation, the Agreement, processes and procedures, know- how, methods and techniques employed by NorthPoint in connection with the NorthPoint Products and Services, technical data, drawings, flow charts, program listings, software code, and other software, plans and projections. Neither party may disclose or refer to the NorthPoint Products and Services to be performed under this Agreement in any manner that identifies the other party without advance written permission. Except for security surveillance, the observing or recording of the NorthPoint Products and Services or any part thereof, whether by photographic, video or audio devices or in any other manner is prohibited. In the event any such prohibited observation or recording occurs, NorthPoint may (in addition to any other legal or equitable rights and remedies) stop the Services until NorthPoint Technical Services has satisfied itself that the prohibited conduct has ceased, and in such event (a) the date of delivery or time for performance will be extended by a period of time which NorthPoint determines necessary and (b) Buyer will reimburse NorthPoint for NorthPoint’s and its Suppliers’ additional costs and expenses resulting from such delay, including but not limited to any for demobilization or remobilization. Unless required by appropriate governmental authorities, neither party shall, without the prior written consent of the other party, issue any public statement, press release, publicity hand-out or other material relating to the NorthPoint Products and Services performed or installed on Buyer’s Site or Equipment. However, NorthPoint has the right to share confidential information with its affiliate and subcontractors provided those recipients are subject to the same confidentiality obligations set forth herein.
  2. (b)  Nothing in this Agreement requires a party to treat as confidential any information which: (i) is or becomes generally known to the public, without the fault of the receiving party; (ii) is disclosed to the receiving party, without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving party, without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession of the receiving party upon the date of this Agreement; or (iv) was independently developed by receiving party or its representatives, as evidenced by written records, without the use of discloser’s confidential information, or (v) is required to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order, provided that the party required to disclose by law will promptly advise the originating party of any requirement to make such disclosure to allow the originating party the opportunity to obtain a protective order and assist the originating party in so doing.
  3. (c)  It is NorthPoint’s policy not to unlawfully or improperly receive or use confidential information, including trade secrets, belonging to others. This policy precludes NorthPoint from obtaining, directly or indirectly from any employee, contractor, or other individual rendering services to NorthPoint confidential information of a prior employer, client or any other person which such employee, contractor, or individual is under an obligation not to disclose. Buyer agrees to abide by this policy.
  4. (d)  NorthPoint shall retain all intellectual property rights in the NorthPoint Products and Services works, NorthPoint’s documents, processes, NorthPoint’s confidential information, and any design information and/or documents made by (or on behalf of) NorthPoint. Upon receipt of all fees, expenses and taxes due in respect of the relevant NorthPoint Products and Services, NorthPoint grants to the Buyer a non-transferable, non-exclusive, royalty-free license to copy, use and communicate NorthPoint’s documents for the sole purpose of operation and maintenance of the facility upon which the NorthPoint Products and Services have been performed.
  1. COMPLIANCE WITH LAWS. The parties agree to comply with all applicable laws and regulations.
  2. CHANGES IN NORTHPOINT PRODUCTS AND SERVICES. No change will be made to the scope of NorthPoint Products and Services unless Buyer and NorthPoint agree in writing to the change and any resulting price, schedule or other contractual modifications. If any change to any law, rule, regulation, order, code, standard or requirement impacts NorthPoint’s obligations or performance under this Agreement, NorthPoint shall be entitled to a change order for an equitable adjustment in the price and time of performance.
  3. NON-WAIVER. Any waiver by a party of strict compliance with this Agreement must be in writing, and any failure by the parties to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter.
  4. MODIFICATION OF TERMS. These terms may only be modified by a written instrument signed by authorized representatives of both parties.
  5. ASSIGNMENT. Neither party may assign all or part of this Agreement, or any rights or obligations under this Agreement without the prior written consent of the other; but either party may assign its rights and obligations, without recourse or consent to, any parent, wholly owned subsidiary or affiliate or affiliate’s successor organization (whether as a result of reorganization, restructuring or sale of substantially all of a party’s assets). However, Buyer shall not assign this Agreement to a competitor of NorthPoint; an entity in litigation

with NorthPoint; or an entity lacking the financial capability to satisfy Buyer’s obligations. Any assignee expressly assumes the performance of any obligation assigned. NorthPoint may grant a security interest in this Agreement and/or assign proceeds of this Agreement without Buyer’s consent.

  1. APPLICABLE LAW AND JURISDICTION. This Agreement is governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Each party agrees that claims and disputes arising out of this Agreement must be decided exclusively in a federal or provincial court of competent jurisdiction located in a province in which NorthPoint maintains its principal place of business. Each party submits to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.
  2. SEVERABILITY. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not in any way be affected or impaired. A court may modify the invalid, illegal or unenforceable provision to reflect, as closely as possible, the parties’ original intent.
  3. EXPORT/IMPORT COMPLIANCE. Buyer acknowledges that NorthPoint is required to comply with applicable export/import laws and regulations relating to the sale, export, import, transfer, assignment, disposal and use of the Products and information provided in the performance of the Services, including any export/import license requirements. Buyer agrees that such goods or information shall not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any applicable Canadian or, to the extent permissible under Canadian law, U.S. export/import laws and regulations. NorthPoint’s continuing performance hereunder is conditioned on compliance with such export/import laws and regulations at all times.
  4. NUCLEAR. In the event the NorthPoint Products and Services provided under the Agreement are to be used in or performed at or are connected with in any manner a nuclear installation, the following conditions shall apply:

(a)Buyer will indemnify, defend and hold NorthPoint harmless, and waives and will require its insurers to waive all rights of recovery against NorthPoint, for any damage, loss, destruction, injury or death resulting from a “nuclear incident,” as defined in the Nuclear Liability and Compensation Act, as amended, whether due to NorthPoint’s negligence or any other act or omission.

  1. (b)  Third Party Property Protection: Buyer will indemnify and hold NorthPoint and its subcontractors harmless for any liability arising out of loss of or damage to property at the Site which arises out of a nuclear incident. In addition, Buyer shall obtain for the benefit of NorthPoint and its subcontractors, protection against liability for, arising out of, or resulting from damage to any property or equipment located at the Site which is used or intended for use by Buyer in connection with the operation of the nuclear power plant (including but not limited to fuel) and which is owned by parties other than Buyer.
  2. (c)  Decontamination: Buyer shall, without cost to NorthPoint, perform any required decontamination and health physics necessary for, related to or resulting from NorthPoint performance of its contractual obligations. This includes but is not limited to decontamination of any NorthPoint equipment or tools used in the performance thereof. Buyer shall provide documentation demonstrating that components or parts being returned to NorthPoint after such decontamination meet the requirements designated for unrestricted release.
  1. SURVIVAL.TheArticlesentitled“IntellectualProperty,”“LimitationofLiability,”“Indemnity”,“Confidentiality,”“RiskofLossandSchedule,”“Export/ImportCompliance,”and“Nuclear” survive any termination, expiration or cancellation of this Agreement.
  2. SITE SAFETY. Buyer shall comply with all federal, provincial, and local safety regulations and standards applicable to the Site and to the Equipment and/or Product on which NorthPoint will perform the Services. NorthPoint shall not be obligated to commence or perform Services unless Buyer’s Site complies with all applicable safety requirements. In the event Buyer’s Site safety is non-compliant, NorthPoint may suspend the Services until such time as Buyer corrects the non-compliance. To the extent NorthPoint incurs additional time and expense as the result of Buyer’s non-compliance, NorthPoint shall be entitled to an equitable adjustment in the schedule, price and other affected provisions of the Agreement.
  3. ENVIRONMENTAL COMPLIANCE. To the extent that the performance of Services at the Site may involve the generation of hazardous waste as such term is defined under applicable federal laws or the laws of the province in which the Site is located and the rules or regulations issued thereunder as are now in effect or hereafter amended from time to time (such generated hazardous waste being herein referred to as “Hazardous Waste”) shall apply. Buyer shall at its expense and in accordance with all applicable federal, provincial and local laws, rules, regulations and ordinances (i) furnish NorthPoint with containers for Hazardous Waste, (ii) designate a storage area at the Site proximate to the Services where such containers are to be placed; and (iii) handle, store and dispose of Hazardous Waste. Buyer shall reimburse NorthPoint for additional costs, if any, incurred in complying with any such laws, regulations, rules and/or ordinances. NorthPoint shall have no responsibility or liability with regard to any Hazardous Waste which it does not know or have reason to know will be generated or released in the performance of the Services, and Buyer shall indemnify and hold NorthPoint harmless for all damages, losses, costs, liabilities, fines and penalties, (including reasonable attorneys’ fees) related to pollution and environmental impairment arising from the Buyer’s property, the Equipment or the Services.
  4. ASBESTOS. The terms “Asbestos” and “Asbestos Containing Material” and shall have the meanings set forth in the Canada Labour Code (R.S.C., 1985, c. L-2), as amended and/or applicable provincial legislation, as applicable, and “ACM” shall mean Asbestos and Asbestos containing materials.
  1. (a)  The Buyer warrants and represents that, in any areas which may be accessed by NorthPoint or its Suppliers, any ACM which is or is not contained in thermal insulation or sprayed- on surfacing material is conspicuously and specifically marked as ACM, and any other ACM is in a lawful condition.
  2. (b)  Prior to NorthPoint’s commencement of Services at any Site: (i) The Buyer shall, at Buyer’s expense remove all thermal insulation, sprayed-on surfacing material, and/or potential ACM, and ACM which may be disturbed during or removal of which is required for the performance of the Services; and, (ii) The Buyer shall ensure that any areas where any activities involving the abatement or removal of potential ACM or ACM shall be conspicuously identified, posted and isolated, all as required by applicable law. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, IN PERFORMING THE SERVICES AND DISPATCHING EMPLOYEES TO WORK AREAS, NORTHPOINT IS RELYING UPON THE AGREEMENTS, WARRANTIES, AND REPRESENTATIONS MADE BY BUYER IN THIS ARTICLE 26. WITHOUT LIMITING ITS OTHER RIGHTS AND REMEDIES, NORTHPOINT: (I) SHALL NOT BE OBLIGATED TO COMMENCE, AND MAY STOP ANY AFFECTED SERVICES, UNLESS AND UNTIL IT IS FULLY SATISFIED THAT THE BUYER IS IN COMPLIANCE WITH THIS ARTICLE 26, AND (II) SHALL BE ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE SCHEDULE, PRICE AND OTHER PROVISIONS OF THE AGREEMENT RESULTING FROM BUYER’S NON-COMPLIANCE.
  3. (c)  In no event shall NorthPoint be obligated to install, disturb, handle, or remove any potential ACM.
  4. (d)  NorthPoint makes no representation that it is licensed to abate ACM.
  5. (e)  Buyer shall defend, indemnify and hold NorthPoint harmless against any and all claims, demands, damages, losses, liabilities, fines, penalties, costs or expenses, including without limitation any clean up or remedial measures that arise out of, in connection with, or as a result of the non-compliance of the Buyer with the provisions of this Article 26.

27. THIRD PARTY PARTS. Buyer warrants that any and all Third Party Parts which may be the subject of any Services shall (a) be fully compatible with the corresponding part, component, equipment or material of the Original Equipment Manufacturer (“OEM”) in terms of form, fit, and function; (b) shall be timely provided to NorthPoint hereunder; and (c) shall be capable of installation in the same manner and within the same time as the corresponding OEM part, component, equipment, or material.

28. PRODUCT RETURNS. Prior to the return of any Product, Buyer must identify the Product or portion thereof and obtain written authorization and shipping instructions from NorthPoint. NorthPoint has the right, in its sole discretion, to permit or reject any such return. NorthPoint’s authorization to return any Product to NorthPoint does not relieve Buyer of its obligation to pay for such Product. Upon receipt, inspection, and acceptance of the Product by NorthPoint, NorthPoint will issue a credit memo to Buyer, less applicable re-stocking fees. NorthPoint reserves the right to reject any hazardous material.

NorthPoint Technical Services, ULC – Terms and Conditions for the Purchase of Goods and Services

The following Terms and Conditions (the “Terms”) shall apply to any purchase of goods and/or services (“Deliverables”) specified in the applicable purchase order (the “Order”) by NorthPoint Technical Services, ULC (“Purchaser”) from the seller or provider of such goods and/or services specified in the applicable Order (the “Supplier”), and their acceptance is an express condition of such purchase by Purchaser. The Supplier shall be deemed to have full knowledge of the Terms and such Terms shall be binding on the Purchaser and Supplier at the earlier of (a) the date the Deliverables are delivered to Purchaser or (b) five days from the effective date of the Contract (as defined below), unless Supplier has delivered to Purchaser written express objection to said Terms.

1. GOVERNING TERMS/CONFLICT/MODIFICATION

No order will be recognized by Purchaser unless issued on Purchaser’s Order. Any such Order issued by Purchaser, together with the Terms and all Purchaser’s documentation referenced in the Order shall constitute the contract between Purchaser and Supplier (the “Contract”). In the event of any conflict or inconsistency between the Contract and the terms and conditions contained in any acknowledgment or in any other form issued by Supplier, whether or not any such form has been acknowledged or accepted by Purchaser, the Contract shall prevail. Except as otherwise provided in this paragraph 1 or in the Order, any additional or different terms included in any prior or subsequent purchase confirmations, shipping instructions, invoices, acknowledgements or any other verbal communications or written documents shall not be binding on the parties hereto. No waiver, alteration or modification of the Terms shall be binding upon Purchaser unless made in writing and signed by a duly authorized representative of Purchaser.

2. SHIPMENT / CHARGES / RISK OF LOSS / TITLE

Unless otherwise stated on the face of the Order, all Deliverables shall be delivered FCA (Incoterms 2010) from Supplier’s facility. Supplier shall employ Purchaser’s preferred carrier and method of shipment, which may vary by location and can be obtained by request to Purchaser. For greater certainty, receipt by the carrier of such Deliverables at Supplier’s facility does not constitute acceptance of Deliverables by Purchaser. Supplier shall ensure use of the carrier designated by Purchaser and shall contract for carriage on customary terms at Purchaser’s risk and expense. If Supplier does not have shipping instructions from Purchaser, Supplier shall obtain same. Supplier must obtain at its own risk and expense any export license or other official authorization and carry out, where applicable, all custom formalities necessary for the export of Deliverables. Deliverables will be handed over to the carrier as the transport mode and/or quantity and/or nature of Deliverables may require. Risk of loss and/or damage to Deliverables shall pass from Supplier to Purchaser upon transfer to the carrier, and title shall pass to Purchaser upon receipt of Deliverables as provided for in the Contract, provided that vesting of title shall not constitute acceptance of Deliverables by Purchaser. Supplier shall suitably pack, mark and ship Deliverables in accordance with any instructions from Purchaser and the requirements of the carrier to secure the lowest possible transportation cost. Supplier shall be liable for any freight charges or damage to Deliverables resulting directly or indirectly from any failure by Supplier to comply with this provision. If Deliverables are deemed to be dangerous and or hazardous, Supplier shall ensure all legally required documentation is prepared and submitted to the carrier prior to shipment with copy to Purchaser. No transportation or delivery charges of any kind including packing, boxing, storage or cartage charges shall be paid by Purchaser or reimbursed to Supplier unless specifically agreed to by Purchaser in writing. For shipments originating outside of Canada, Supplier shall ensure that a commercial invoice certified in accordance with Canadian customs regulations (Customs Invoice) accompanies Deliverables clearly indicating the Order and consignee together with any export documents/permits required by the foreign customs authorities. The Customs Invoice should indicate the customs broker for clearance as advised by Purchaser. All Bills of Lading prepared on behalf of Purchaser shall also indicate the Order number. For shipments valued at less than $2500 Canadian dollars, copies of customs documentation shall be emailed to shippingnotices@northpointts.com. All invoices, shipping documents and other writings pertaining to any Order shall refer to Purchaser’s Order and/or contract number set out on such Order or other documentation relating to the Order.

3. DELIVERY SCHEDULE

Supplier shall comply with the schedule and shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Purchaser’s delivery schedule. Deliverables shipped to Purchaser in advance of schedule may be returned to Supplier or warehoused at Supplier’s expense.

4. DELAY IN DELIVERY

Time is of the essence. Supplier shall ensure that delivery is made in all respects in accordance with the Order and delivery schedule of Purchaser. Supplier shall promptly advise Purchaser of any anticipated delays. Purchaser reserves the right to reject any shipments or deliveries not made in accordance with Purchaser’s delivery schedule or to cancel the Contract without any liability to Supplier and without prejudice to any of Purchaser’s rights and remedies at law or equity, should Supplier fail to meet scheduled delivery or completion dates or if there is a reasonable likelihood of Supplier failing to meet such schedule.

5. INSPECTION/REJECTION/REPLACEMENT

All Deliverables shall be subject to inspection and test by Purchaser at all times and places including the period of manufacture and in any event prior to final acceptance by Purchaser to assess work quality, conformance with specifications, and conformance with all of Supplier’s representations, warranties and covenants in the Contract. No such verification shall relieve Supplier of its obligations and warranties hereunder. Deliverables shall not be deemed accepted until after such final inspection. If any Deliverables or parts thereof are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements set out in the Contract, in addition to any other rights which it may have under applicable warranties, or under law, Purchaser shall have the right to reject and return such Deliverables for either full credit or a refund (at Purchaser’s discretion) at Supplier’s expense including payment of shipping charges incurred by Purchaser. All returned Deliverables shall be at Supplier’s risk of damage or loss. Without limiting the foregoing, Purchaser shall also have the right to require that Supplier promptly and at its own expense repair, replace or restore any defective or deficient portion of Deliverables, to Purchaser’s reasonable satisfaction. If Supplier is unwilling to or unable to effect prompt repair, replacement or restoration (at Purchaser’s election), Purchaser may use its own facilities or contract with a third party at Supplier’s expense. Neither the failure of Purchaser to inspect, nor acceptance of, nor payment for any Deliverables shall prejudice Purchaser’s rights under this paragraph 5. Supplier’s records relating to the manufacture or provision of Deliverables shall be maintained for a minimum of six (6) years following delivery unless otherwise agreed in writing by Purchaser.

6. COMPLIANCE WITH LAWS

Supplier shall comply with all laws and regulations, including without limitation, international, federal, provincial, municipal and local laws and codes, quality system standards and quality assurance requirements, privacy requirements, environmental standards and any additional technical codes, standards or norms which Purchaser may specify in writing.

7. CODE OF CONDUCT

The Supplier shall not engage, actively or passively, nor directly or indirectly in any form of bribery, in any violation of basic human rights of employees or any child labor. Moreover, the Supplier shall take responsibility for the health and safety of its employees. The Supplier shall act in accordance with the applicable

environmental laws. The Supplier shall use reasonable efforts to promote this Code of Conduct attached hereto and incorporated herein by reference (the “Code of Conduct”) among its subcontractors and suppliers. In addition to other rights and remedies the Purchaser may have, the Purchaser may terminate the Contract in case of breach of the obligations set out in paragraph 6 and/or this paragraph 7. However, provided that the Supplier’s breach of paragraph 6 and/or this paragraph 7 is capable of remedy, Purchaser’s right to terminate is subject to the proviso that such breach has not been remedied by the Supplier within a reasonable grace period set by Purchaser.

8. WARRANTIES

Supplier warrants that Deliverables: (a) are free from defects in design, materials and workmanship for a period of 12 months from the date of acceptance by Purchaser; (b) conform with all specifications attached or contained in the Order and all documentation and information provided by Purchaser for the Deliverables; (c) are fit for their intended purpose; (d) are new, unused (unless otherwise specified in this Order) and merchantable. To the extent services are to be provided hereunder, Supplier warrants that all work rendered shall be careful and proper and in full compliance with specifications and shall be in accordance with the current leading industry practices and with the highest engineering or other applicable professional standards. The foregoing warranties shall survive any testing, inspection or acceptance by Purchaser of Deliverables. The warranties set forth above shall not be subject to any disclaimer or exclusion of warranties or to any limitation of Supplier’s liability pursuant to the Contract.

9. INDEMNITY

Supplier and Purchaser (each as an “Indemnitor”) shall indemnify, hold harmless and defend the other (“Indemnitee”) from and against all third party claims alleging bodily injury, death or damage to a third party’s tangible property, but only to the extent caused by the Indemnitor or its subcontractor’s negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of negligence.

Indemnitee shall provide the Indemnitor with prompt written notice of any third party claims covered by this paragraph. Indemnitor has the unrestricted right to select and hire counsel, and the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitee’s behalf. Indemnitee shall not make any admission(s) which might be prejudicial to Indemnitor and shall not enter into a settlement without the express permission of Indemnitor. The indemnity for both the Supplier and Purchaser shall be limited to the amount of professional services covered as part of the Contact.

10. INTELLECTUAL PROPERTY

Supplier warrants that Purchaser and its customers may freely use, resell or otherwise deal with Deliverables without infringement of patents, copyrights, trademarks, trade secrets or other intellectual property rights held by Supplier or any third party. Supplier agrees to indemnify and hold harmless Purchaser from any claim, action, cost or damage whatsoever arising from the alleged or actual infringement of any patent, trademark, copyright, industrial design or other intellectual property right resulting from the purchase and sale, use, or resale of Deliverables. If Deliverables or any activity in connection therewith are held to be an infringement and their use is enjoined, Supplier shall promptly, at the option of Purchaser, secure for Purchaser the right to continue using or reselling Deliverables; replace Deliverables with non-infringing Deliverables; modify Deliverables such that they are no longer infringing; or, if unable to do any of the foregoing, remove the infringing Deliverables and indemnify Purchaser for any direct or indirect losses, costs or damages resulting from such infringement.

11. CONFIDENTIAL INFORMATION

Unless otherwise expressly stated in writing, all information including general business information, financial data, technical data, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans methods or other intellectual property (collectively, the “Information”), supplied, conceived or prepared by Supplier or by Purchaser or both in connection with the Contract, shall be the property of Purchaser, shall be considered confidential, shall not, at any time, be disclosed to a third party by Supplier without written consent of Purchaser and shall be used solely for the purpose of supplying Deliverables. Upon termination of the Contract, Purchaser may request Supplier to deliver all the Information to Purchaser and such Information shall not be utilized, directly or indirectly, by Supplier for the use or benefit of Supplier or any other person.

12. PAYMENT

Prices specified in the Contract shall, unless otherwise expressly stated, be fixed in Canadian dollars inclusive of all duties of any kind and all packaging and loading, but exclusive of any federal or provincial taxes (GST/PST) which shall be shown as a separate line item on Supplier’s invoice. Invoices will be paid within 45 days from receipt of an accurate and complete invoice by Supplier, unless a discount is permitted for payments made within another period. Purchaser shall be entitled to set-off against any amounts owing to Supplier, any amounts owing by Supplier hereunder, including, under paragraph 13.

13. EXPORT CONTROL, CUSTOMS AND FOREIGN TRADE REGULATIONS

Supplier shall comply with all applicable export control, customs and foreign trade regulations (“Foreign Trade Regulations”), and shall obtain all necessary export licenses, unless Purchaser or any party other than Supplier is required to apply for the export licenses pursuant to applicable Foreign Trade Regulations. Supplier represents and warrants that it complies with all economic sanctions laws of Canada, the United States, and the European Union including, but not limited to, the Special Economic Measures Act, the Freezing Assets of Corrupt Foreign Public Officials Act, the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), the United Nations Act, the Criminal Code, and all regulations thereto (“Sanctions Laws”). Supplier further represents and warrants that none of the Deliverables, components of Deliverables, or technical services related to Deliverables, have been sourced from any country, individual, or entity in contravention of Sanctions Laws applicable to the Supplier or Purchaser

Supplier will provide to Purchaser in writing, at least two weeks prior to the shipment date of Deliverables, and in case of changes without undue delay: (i) information necessary for a true, valid and complete customs declaration to be made by Purchaser to the Canada Border Services Agency (“CBSA”) or any other declaration or permit application to any other government authority; (ii) certificates and other proof of origin of Deliverables to qualify for available duty-free or preferential duty under Canadian law; and (iii) for Deliverables subject to the re-export regulations of the United States of America (the “U.S.”), or containing U.S. parts manufactured under a U.S. license, the Export Control Classification Number (ECCN) for each item and any other information required under applicable laws. Supplier will immediately notify Purchaser of any investigation by a governmental authority as to origin of Deliverables or as to whether any export or re-export controls apply, and will fully participate and cooperate in any such review or audit, including any appeals. Supplier shall be liable for any expense, loss and/or damage incurred by Purchaser due to any breach of its obligations under this section.

Purchaser shall not be obligated to fulfill the Contract if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other Sanction Laws.

14. ENVIRONMENTAL PROTECTION, DUTIES TO DECLARE

Should supplier deliver products which are subject to statutorily-imposed substance restrictions and/or information requirements (e.g. REACH, RoHS), Supplier shall declare such substances in the web database BOMcheck (www.BOMcheck.net) or in a reasonable format provided by Purchaser no later than the date of first delivery of products. The foregoing shall only apply with respect to laws which are applicable in the jurisdiction of registration of Supplier or Purchaser, or at the designated place of delivery requested by Purchaser. Furthermore, Supplier shall also declare all substances which are set out in the so-called “Purchase list of declarable Substances” applicable at the time of delivery in the manner described above.

15. INSURANCE

Supplier shall, before commencing any work hereunder, at its own expense, procure and maintain with public bodies or insurance companies acceptable to Purchaser (a) Workplace Safety and Insurance Board insurance (“WSIB”) (or the equivalent thereof outside of Alberta) when work is performed on the property of Purchaser or its customer, and shall provide Purchaser with a certificate of clearance from the WSIB; and (b) Comprehensive General Public Liability Insurance, including coverage for contractual liability, bodily injury, product and completed operations liability and property damage with a minimum limit of $2,000,000 per occurrence. Upon request, Supplier shall provide Purchaser with a certificate evidencing such insurance coverage, which shall include Purchaser as additional insured and shall state that 30 day notice of cancellation or modification of the insurance coverage shall be given to Purchaser.

16. FORCE MAJEURE

Neither party shall be liable for any delay or failure of performance due solely to causes beyond its control without its fault or negligence including without limitation acts of God, strikes, fires, war, riot, flood, provided that Supplier has given notice in writing to Purchaser of any such cause for delay or anticipated delay promptly after first obtaining notice thereof and has used reasonable commercial efforts to make deliveries as expeditiously as possible taking such cause for delay into account. Should Supplier be unable, due to such a cause, to meet all of its delivery commitments for Deliverables ordered pursuant to the Contract, Supplier shall not give preference to any other customer in making deliveries of such Deliverables. If Purchaser believes that the delay or anticipated delay in Supplier’s deliveries may impair its ability to meet its production schedules or may otherwise interfere with its operations, Purchaser may at its option, and without liability to Supplier, cancel outstanding deliveries hereunder wholly or in part.

17. MISCELLANEOUS

No assignment of the Contract or of monies due or to become due hereunder shall be made by Supplier without prior written consent of Purchaser. Purchaser in its sole discretion may assign its rights hereunder to its affiliates or to third party purchasers. Paragraphs 8,9,10,11 and 18 shall survive termination and expiration of the Contract. The parties hereby agree that the International Sale of Goods Act (Ontario) will not apply to Deliverables or this purchase. Failure or delay by either party in enforcing any right or provision of the Contract shall not be deemed a waiver of such provision or right. A determination that any provision in the Contract may be unenforceable or invalid shall not affect the enforceability or validity of the remaining provisions in the Contract.

18. GOVERNING LAW AND JURISDICTION

The Contract shall be governed by, construed and interpreted in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to its conflict of laws principles. Each party agrees that claims and disputes arising out of this Contract must be decided exclusively in a federal or provincial court of competent jurisdiction located in a province in which Purchaser maintains its principal place of business. Each party submits to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.

19. INDEPENDENT CONTRACTOR

Purchaser and Supplier are two independent entities. Supplier is engaged as an independent contractor solely for the purpose of providing the Deliverables. Supplier is solely responsible for all losses and expenses in respect of performing its obligations hereunder.

20. NOTICES

All notices given hereunder shall be in writing and may be sent by registered mail, courier, facsimile transmission, or electronic mail if also sent by regular or registered mail, and addressed to the receiving party at the address set out in the Order or as subsequently agreed between the parties. Notices shall be deemed to be given when received by the other party.

21. CANCELLATION AND CHANGES

The right is reserved to Purchaser to either cancel this Order in whole or in part or to change it at any time, including additions or deletions to quantities, upon notice in writing to Supplier. If cancellation takes place, delivery shall be accepted at the purchase price of all Deliverables completed prior to receipt of notice of cancellation. Supplier shall immediately comply with such notice and take all steps necessary to minimize the cost of terminating or changing the Contract. If changes affect delivery or price, Supplier shall immediately notify Purchaser. Except as otherwise agreed in writing, Purchaser shall not be liable for any costs arising from such notice, including but not limited to loss of anticipated profits or loss of opportunity.

22. TERMINATION

If Supplier ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature), whether voluntarily or involuntarily, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Supplier, or a receiver for Supplier is appointed or applied for, or an assignment for the benefit of creditors is made by Supplier, or it has not, to the satisfaction of Purchaser, complied with any of the requirements contained in paragraph 13, Purchaser may terminate the Contract without liability, except for deliveries previously delivered in accordance with the Contract.

23. LIMITATION OF LIABILITY

Notwithstanding any other provision in the Contract or any applicable statutory provisions, neither party hereto shall not be liable to the other party, its affiliates or agents for indirect, special, consequential, incidental or punitive damages arising directly or indirectly from any breach of the Contract or from any acts or omissions of its officers, employees or agents which may give rise to any liability (whether in tort, including for negligence, strict liability or under any other theory of legal liability). In no event shall the aggregate liability of either party exceed the purchase price of the Contract.

24. INDUSTRIAL REGIONAL BENEFITS

This Order may be entered into partial fulfillment of Industrial Regional Benefits (IRB) commitments on behalf of Purchaser to the Government of Canada. Supplier may be required to identify the Canadian Content Value (CCV) of the Deliverables supplied hereunder.

Code of Conduct for NPTS Suppliers

This Code of Conduct defines the basic requirements placed on suppliers of goods and services to NorthPoint Technical Services, ULC (“NPTS”) concerning their responsibilities towards their stakeholders and the environment. NPTS reserves the right to reasonably change the requirements of this Code of Conduct due to changes of the NPTS’ internal compliance policies. In such event, NPTS expects its suppliers to accept such reasonable changes.

The Supplier hereby covenants: 1. Legal compliance

a. to comply with all applicable laws .

2. Prohibition of corruption and bribery

a. to tolerate no form of and not to engage in any form of corruption or bribery, including any payment or other form of benefit conferred on any government official for the purpose of influencing decision making in violation of law.

  1. Respect for the basic human rights of employees
    1. to promote equal opportunities for and treatment of its employees irrespective of skin color, race, nationality, social background, disabilities, sexual orientation, political or religious conviction, gender or age;
    2. to respect the personal dignity, privacy and rights of each individual;
    3. to refuse to employ or make anyone work against his will;
    4. to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual, harassment or discrimination;
    5. to prohibit behavior including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative;
    6. to provide fair remuneration and to guarantee the applicable statutory minimum wage;
    7. to comply with the maximum number of working hours laid down in the applicable laws;
    8. to recognize, as far as legally possible, the right of free association of employees and to neither favor nor discriminate against members of employee organizations or trade unions.
  2. Prohibition of child labor

a. to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention 138, to employ no workers under the age of 14.

  1. Health and safety of employees
    1. to take responsibility for the health and safety of its employees;
    2. to control hazards and take all reasonably possible precautionary measures against accidents and occupational diseases;
    3. to provide training and ensure that employees are educated in health and safety issues;
    4. to set up or use a reasonable occupational health & safety management system1).
  2. Environmental protection
    1. to act in accordance with the applicable statutory and international standards regarding environmental protection;
    2. to minimize environmental pollution and make continuous improvements in environmental protection;
    3. to set up or use a reasonable environmental management system1).
  3. Supply chain
    1. to use reasonable efforts to promote among its suppliers and subcontractors compliance with this Code of Conduct;
    2. to comply with the principles of non-discrimination with regard to supplier selection and treatment.

If requested by NPTS, Supplier shall, not more than once a year, either – at NPTS’ option – provide NPTS with (i) a written self-assessment in the form provided by NPTS, or (ii) a written report approved by NPTS describing the actions taken or to be taken by us to assure compliance with the Code of Conduct. Supplier further agrees that NPTS or a third party appointed by NPTS shall be entitled (but not obliged) to conduct – also at Supplier’s premises – inspections in order to verify compliance with the Code of Conduct. NPTS hall bear all fees and expenses in connection with such inspection. Any inspection may only be conducted upon prior written notice of NPTS, during regular business hours, in accordance with the applicable data protection law and shall neither unreasonably interfere with our business activities nor violate any of our confidentiality agreements with third parties.

The parties hereto agree that this Code of Conduct is subject to the substantive law that governs the Terms and Conditions that this Code of Conduct is attached to and that has been entered into by the parties.

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