GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES BY SMS EQUIPMENT INC.

1. Applicability.

a. These terms and conditions of purchase (the "Terms") apply to the purchase of materials, equipment, components, supplies and other items ("Goods") and/or services ("Services") by SMS EQUIPMENT INC. ("SMS EQUIPMENT") from the named seller (the "Seller") written on the Purchase Order (defined below). If a written contract signed by both parties is in existence covering the purchase and sale of the Goods and/or Services described in the Purchase Order, the written contract shall prevail to the extent they are inconsistent with these Terms.

b. The purchase order issued by SMS EQUIPMENT (the "Purchase Order") once accepted by Seller, together with these Terms (collectively, the "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions of sale regardless of whether Seller has submitted its terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Acceptance and/or fulfilment of the Purchase Order constitutes acceptance of these Terms.

2. Delivery of Goods and Performance of Services.

a. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the "Delivery Date"). If no delivery date is specified, Seller shall deliver the Goods within thirty (30) days of Seller's receipt of the Purchase Order.

b. If Seller fails to deliver the Goods in full on the Delivery Date, SMS EQUIPMENT may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify SMS EQUIPMENT against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. SMS EQUIPMENT may, at its discretion, return any incomplete Goods delivered prior to the Delivery Date at Seller's expense and Seller shall re-deliver the complete Goods on the Delivery Date. If a partial delivery is accepted by SMS EQUIPMENT, the price for the Goods shall be adjusted on a pro-rata basis.

c. Seller shall deliver all Goods to the address specified in the Purchase Order (the "Delivery Point") during SMS EQUIPMENT's normal business hours or as otherwise instructed by SMS EQUIPMENT. Seller shall pack all goods for shipment according to SMS EQUIPMENT's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide SMS EQUIPMENT prior written notice if it requires SMS EQUIPMENT to return any packaging material. Any return of packaging material shall be made at Seller's risk of loss and expense.

d. Seller shall perform the Services to SMS EQUIPMENT as described in the Purchase Order and attached schedules, and in compliance with these Terms.

e. Seller acknowledges that time is of the essence with respect to Seller's obligations to supply Goods and perform Services including all performance dates, timetables, project milestones and other requirements in this Agreement.

3. Shipping Terms. Delivery shall be made in accordance with the terms on this Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Purchase Order.

4. Title and Risk of Loss. Title and risk of loss passes to SMS EQUIPMENT upon delivery of the Goods at the Delivery Point. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point.

5. Inspection and Rejection of Non-Conforming Goods. SMS EQUIPMENT may inspect the Goods on or after the Delivery Date. SMS EQUIPMENT, in its sole discretion, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are non-conforming or defective. If SMS EQUIPMENT rejects any portion of the Goods, SMS EQUIPMENT, upon written notice to Seller, may: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If SMS EQUIPMENT requires replacement of the Goods, Seller shall, at its expense, within thirty (30) days, replace the non-conforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, SMS EQUIPMENT may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to paragraph 16. Any inspection or other action by SMS EQUIPMENT under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and SMS EQUIPMENT may conduct further inspections after Seller has carried out its remedial actions.

                                                                                                                                                                                                                                                                              6. Price. The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in Seller's published price list effective on the Purchase Order date. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use or excise taxes. No increase in the Price is effective, whether due to increased material, labour, or transportation costs or otherwise, without the prior written consent of SMS EQUIPMENT.

7. Invoicing and Payment Terms.

a. Seller shall issue an invoice to SMS EQUIPMENT within thirty (30) days of delivery, including: the Purchase Order number, a description of the Goods and/or Services delivered or performed, a notation as to whether the invoice is interim or final, a calculation of applicable taxes shown as a separate line item, and Seller’s applicable GST, PST and/or HST registration numbers.

b. SMS EQUIPMENT shall pay all properly invoiced amounts due to Seller within sixty (60) days after receipt of the invoice, except for any amounts disputed by SMS EQUIPMENT.

c. All payments under this Agreement will be made in Canadian Dollars by Electronic Funds Transfer. Without prejudice to any other right or remedy it may have, SMS EQUIPMENT may set-off at any time any amount owing to it by Seller against any amount payable by SMS EQUIPMENT to Seller under this Agreement or otherwise. If there is a payment dispute, SMS EQUIPMENT shall deliver a written statement to Seller no later on or prior to the payment due date listing the disputed items and providing a reasonably detailed description of the nature of the dispute. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.

8. Seller's Obligations Regarding Services. Seller shall:

a. before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licences and consents and comply with all relevant laws applicable to the provision of the Services;

b. comply with all rules, regulations, and policies of SMS EQUIPMENT, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by SMS EQUIPMENT to certain areas of its premises or systems for security reasons, and specific health and safety practices and procedures;

c. maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as SMS EQUIPMENT shall approve. During the term of this Agreement and for a period of two years thereafter, upon SMS EQUIPMENT's written request, Seller shall allow SMS EQUIPMENT to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;

d. obtain SMS EQUIPMENT's written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to SMS EQUIPMENT (each approved subcontractor or other third party is a "Permitted Subcontractor"). SMS EQUIPMENT's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between SMS EQUIPMENT and any Seller subcontractor or supplier;

e. require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon SMS EQUIPMENT's written request, to enter into a non-disclosure or intellectual property assignment or licence agreement in a form that is reasonably satisfactory to SMS EQUIPMENT;

f. ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services;

g. ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the SMS EQUIPMENT; and

h. keep and maintain any equipment, materials or tools from SMS EQUIPMENT in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the SMS EQUIPMENT's written instructions or authorization.

9. Change Orders. SMS EQUIPMENT may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Services. Seller shall within fifteen (15) days of receipt of a Change Order submit to SMS EQUIPMENT a firm cost proposal for the Change Order. If SMS EQUIPMENT accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.

10. Conditions and Warranties.

a. Seller covenants and warrants to SMS EQUIPMENT that for a period of one year from the Delivery Date, all Goods will:
i. be free from any defects in workmanship, material, and design;
ii. conform to applicable specifications, drawings, designs, samples, and other requirements set forth in the Purchase Order;
iii. shall meet the Manufacturer specifications and requirements described in this Purchase Order;
iv. be merchantable;
v. be free and clear of all liens, security interests, or other encumbrances; and
vi. not infringe or misappropriate any third party's patent or other intellectual property rights.
These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by SMS EQUIPMENT, and are in addition to any statutory warranties.

b. Seller warrants to SMS EQUIPMENT that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and       

c. the warranties set forth in this section are cumulative and in addition to any other warranty provided by an original equipment manufacturer, which Seller shall pass on to SMS EQUIPMENT without deduction, and in addition to any provided in law or equity. Any applicable statute of limitations runs from the date of SMS EQUIPMENT's discovery of the noncompliance of the Goods or Services with the foregoing conditions and warranties. If SMS EQUIPMENT gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, within three (3) days (i) replace or repair the defective or non-conforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or non-conforming goods to Seller and the delivery of repaired or replacement Goods to SMS EQUIPMENT, and, if applicable, (ii) repair or re-perform the applicable Services.

11. Indemnification. Seller shall defend, indemnify, and hold harmless SMS EQUIPMENT, its affiliates, successors and assigns, and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with:

a. the Goods and Services purchased from Seller;

b. Seller's negligence, willful misconduct, or breach of the Terms during performance of the Services, delivery of the Goods, or otherwise;

c. claims or losses in excess of Seller’s workers’ compensation insurance account or anything asserted by Seller, Seller’s employees, agents, assigns and others covered by Seller’s insurance policies; and

d. allegations of infringement of intellectual property rights including under patents, copyrights, trademarks, trade secrets and others arising from or related to the Goods and/or Services supplied or used (the “IP Claim”). If SMS EQUIPMENT’s use and enjoyment of the Goods is enjoined or otherwise prevented by an IP Claim, Seller will, at its own expense and after consultation with SMS EQUIPMENT, procure for SMS EQUIPMENT the ability to continue to use the Goods or Services, or will modify or replace or Goods/Services with substantially similar and functionally equivalent, non-infringing Goods/Services.

With respect to this section, Seller shall not enter into any settlement without SMS EQUIPMENT's prior written consent.

12. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless SMS EQUIPMENT and any Indemnitee against any and all Losses arising out of or in connection with any claim that SMS EQUIPMENT's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without SMS EQUIPMENT's or Indemnitee's prior written consent.

13. Limitation of Liability. Nothing in this Agreement shall exclude or limit (a) Seller's liability under paragraphs/subparagraphs 11.b, 11.c, 11.d, and 12.

14. Insurance. During the term of the Agreement and for a period of two years after expiry, termination or complete performance, Seller shall, at its own expense, maintain, and carry insurance in full force and effect which includes, but is not limited to:

a. Workers’ compensation insurance or equivalent insurance, to the full extent required in the applicable provinces and territories in which the Services are performed;

b. Automobile liability insurance covering all motor vehicles owned, operated or licensed by Seller and used in connection with the delivery of Goods or performance of Services, with a bodily injury, death and property damage limit of not less than two million dollars ($2,000,000.00);

c. Commercial general liability insurance, including product liability in a sum no less than two million Dollars ($2,000,000.00), inclusive and including SMS EQUIPMENT and its personnel, and any person or entity engaged by Seller in the performance of Services or delivery of Goods as additional insureds, and without restricting the generality of the foregoing, including extensions known as: Cross Liability, Blanket Contractual, Products and Complete Operations; Personal Injury; Non-owned Automobile liability, and if Seller is a Canadian resident, Contingent Employers’ Liability; and

d. All risk property insurance covering all risks of physical loss or damage to property owned by Seller or for which Seller is legally liable or responsible, for an amount not less than the replacement value, and providing a waiver of subrogation against SMS EQUIPMENT and all persons with whom SMS EQUIPMENT may be participating.

All insurance policies required under this section shall be placed with financially sound and reputable insurers, contain a provision that the insurance will be primary and will not call into contribution any other insurance available to SMS EQUIPMENT, and will provide thirty (30) days’ written notice of material change or cancellation to SMS EQUIPMENT. Seller shall provide SMS EQUIPMENT with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against SMS EQUIPMENT's insurers and SMS EQUIPMENT.

15. Compliance with Law; Code of Conduct.

a. Seller represents it is in compliance with and shall comply with all applicable laws, regulations, and ordinances.

b. Seller shall maintain in effect all the licences, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

c. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller.

d. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.

e. SMS EQUIPMENT may terminate this Agreement if any governmental authority imposes antidumping or countervailing or any retaliatory duties or any other penalties on Goods.

f. SMS EQUIPMENT requires Seller to absolutely refrain from all acts of bribery, including how the Seller deals with government officials and also how it interacts with individuals in the commercial and private sectors. Seller and its affiliates agree to operate in full compliance with all applicable anti-bribery / anti-corruption legislation while conducting business with SMS. This means that no employee or agent or subcontractor of the Seller may offer, promise, authorize or deliver any payment, gift of any kind, or anything of value to any government official or employee or any other person or entity, including those in the private or commercial sector, where such an action is in violation of any applicable anti-bribery / anti-corruption legislation or where the purpose is to improperly induce the recipient to take action or refrain from taking action that would provide a benefit or advantage to Seller or its related entities. Seller represents and warrants that Seller has not and will not commit any act of bribery. Seller hereby acknowledges and agrees that any breach of this section shall be grounds for immediate termination of the Agreement. In such case, SMS EQUIPMENT shall have no further obligation to Seller whatsoever hereunder. Seller shall protect, indemnify and hold harmless SMS and its affiliates from any claim, damages, liability, costs, fees and expenses incurred by Seller and its affiliates as a result of SMS EQUIPMENT’s breach.

g. Seller represents and warrants that it does not engage in forced labour or child labour itself, or within its supply chain, including with respect to the Goods and Services. If forced labour or child labour activity comes to Seller’s attention which affect the Goods and Services, it will notify SMS EQUIPMENT as soon as practicable and will work with SMS EQUIPMENT to eliminate all such activity.

16. Termination. In addition to any remedies that may be provided under these Terms, SMS EQUIPMENT may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the SMS EQUIPMENT may terminate this Agreement upon written notice to Seller. If SMS EQUIPMENT terminates the Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by SMS EQUIPMENT prior to the termination.

17. Waiver. No waiver by SMS EQUIPMENT of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by SMS EQUIPMENT. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Confidential Information. All non-public, confidential, or proprietary information of SMS EQUIPMENT, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by SMS EQUIPMENT to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by SMS EQUIPMENT in writing. Upon SMS EQUIPMENT's request, Seller shall promptly return all documents and other materials received from SMS EQUIPMENT. SMS EQUIPMENT shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

19. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder)], when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics and pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances if caused not by Seller or Seller’s bad faith activity; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary licence or consent; and (k) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice as soon as practicable but no later than within two days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of ten (10) days following written notice given by it under this section, the other party may thereafter terminate this Agreement upon at least ten (10) days' written notice.

20. Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of SMS EQUIPMENT. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. SMS EQUIPMENT may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent.

21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.

22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

23. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein without giving effect to principles or choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

24. Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Alberta, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party's address shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

25. Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, with confirmation of receipt if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.

26. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following paragraphs: 14 (Insurance), 15 (Compliance with Laws, Code of Conduct), 18 (Confidential Information), 23 (Governing Law), 24 (Choice of Forum), and this paragraph 27 (Survival).

28. Amendments and Modifications. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

29. Choice of Language. The Parties confirm that it is their wish that the Purchase Order as well as other documents relating to the Purchase Order, including Notices, be drawn up in English only. Les Parties aux présentes confirment que c'est leur volonté que la présente convention du même que tous les documents, y compris les avis, s'y rattachant, soient redigés en anglais seulement.