Rental Equipment

The following terms and conditions together with the Packing List enclosed on delivery of any rental equipment from Ketek Infinity Inc. (Lessor) form the rental agreement. The Lessor and Lessee agree there are no other terms, conditions or other agreements as between the parties except as set out herein. The Lessee agrees to pay the current rental rate for all equipment listed on the Packing List as determined by the Lessor.

1. Rental Period

The rental period shall commence on and include the date of consignment of the rental equipment from the Lessor’s shipping point to the Lessee, or the Lessee’s agent including any public carrier taking same for transit to the Lessee. The rental period shall end on and include the date of actual delivery of the equipment to the Lessor, another Lessee of the Lessor or agent of either. In calculating the rental period, 24 hours or any part thereof constitutes one full day of rent.

2. Acceptance

By endorsing the Packing List the individual or Corporation accepting delivery agrees to adhere to all terms and conditions set out herein. Where the Packing List is endorsed by and individual, that person and the Corporation accepting delivery confirm the signatory has the requisite authority to bind the Corporation to these rental terms and conditions and expressly agrees as the Corporation’s lawful Agent to pay the rental fee applicable at the time of delivery. These terms and any rental fee can only be amended in writing between the parties which may include an exchange of emails.

3. Applicable Laws

This Agreement shall be construed in accordance with and governed by the laws of Alberta and both the Lessor and Lessee irrevocably atorn to the jurisdiction of Alberta. Any action brought by either party must proceed in the Judicial District of Edmonton.

4. Payment

The rental fee is due within 30 days of the date of invoice. Any overdue amounts shall bear interest at the rate of eighteen percent (18%) per annum compounded annually. The interest adjustment date shall be the date of the commencement of the Rental Period described herein.

5. Default

The Lessee shall commit an act of default when:

a) the Lessee is late in paying the rental fee;
b) if a Receiving Order in Bankruptcy shall be entered against the Lessee;
c) if the Lessee shall call a meeting of the Lessee’s creditors;
d) if the Lessee shall execute any assignment for the benefit of the Lessee’s creditors;
e) if the Lessee (if a limited company) shall enter into compulsory or voluntary liquidation;
f) if the Lessee shall fail to observe and perform the terms and conditions of this Lease;
g) if the Lessee shall do or cause to be done or permit or suffer any act or thing whereby the Lessor’s rights in the equipment may be prejudiced or put in jeopardy

In the event of an act of default, without any notice to the Lessee the Lessor may elect to terminate the rental agreement and retake possession of the rental equipment. For that purpose, the Lessor may enter into or upon any premises owned or controlled by the Lessee for the limited purpose of taking possession of the rental equipment. The termination of the Lease under this clause shall not affect the right of the Lessor to recover from the Lessee any monies due under this Lease, or damages for breach thereof. The Lessee shall indemnify and save harmless the Lessee from any claims, causes of action, which may arise by reason of the Lessee retaking possession of the equipment. Any rental fee paid by the Lessee cannot be applied against the purchase price of equipment out on rental or lost equipment.

6. Transportation

The Lessee shall pay all freight, rail or air express and transportation charges from and to the Lessor’s shipping and receiving points.

7. Recall

The Lessor reserves the right to remove rental equipment from the Lessee at the location of the rental equipment at any time, when in the Lessor’s opinion, acting reasonably, the Lessor becomes aware that the Lessee has threatened to cease to carry on business, may become subject to insolvency or bankruptcy proceedings voluntarily or involuntarily, or in any other situation in which the Lessor, acting reasonably, deems it to be a situation where the Lessee may not be in a position to continue carrying on business.

8. Possession and Inspection

The Lessee shall keep the rental equipment in its own custody and control and will not move the equipment from the location stipulated on the Packing List without consent from the Lessor which shall be in writing and may include an exchange of emails. At all reasonable times the Lessee shall allow the Lessor to have access to the equipment to inspect the condition thereof. The Lessee represents to the Lessor that any equipment rented will be only be used for commercial purposes, shall only be operated by trained personal and will only be operated in accordance with the specifications and instructions given by the Lessor.

9. Consequential Damages

Neither party hereto shall be liable to the other in connection any indirect, incidental, special, or consequential damages, including but not limited to any overhead costs, loss of revenue, cost of capital, or loss of profit or business opportunity or reputation or from any cause whatsoever, whether such liability arises out of contract, tort (including negligence), strict liability or otherwise.

10. Maintenance, Operation, and Repairs

All rental equipment shall be deemed fit for the purpose advertised and shall be in good condition and working order when delivered to the carrier. It is hereby agreed that the LESSOR MAKES NO WARRANTY OR GUARANTEE WHATSOEVER, as to the equipment after it leaves the Lessor’s shipping point, either expressed or implied. The Lessee shall not remove, alter or disfigure any identification insignia displayed upon the equipment and shall ensure that the equipment is not subjected to careless or inappropriate usage, or operated by any person other than those who are fully competent to operate such equipment. The Lessee shall, at the Lessee’s own expense, maintain the equipment and make all repairs and replace all broken or worn out parts in order to keep the equipment in good condition and working order, reasonable wear and tear excepted, throughout the entire rental period, including but not limited to fitness for a particular purpose, merchantability, quality or capacity of the equipment, workmanship in the equipment, compliance with requirements of any law, rule, specification or contract.

Upon equipment return, in the event that the equipment requires repairing or cleaning, the Lessee shall pay to the Lessor the cost of such repairs and cleaning at rates based on current competitive prices chargeable for such repair and cleaning at the location where such cleaning and repair is performed, plus any transportation, accommodation and related expenses. The Lessee shall comply with the reasonable requests by Lessor for the protection of the equipment including transportation and winterization of equipment.

11. Liability of Lessee

The Lessee shall indemnify the Lessor against all loss and damage sustained to the equipment during the rental period and the extent of any such loss and damage shall be based on current new replacement cost of the rented equipment. The Lessee shall indemnify the Lessor against all loss, expenses, penalties, damages and legal costs which the Lessor may suffer or may be required to pay for personal injuries (including death) and/or property damage suffered by any person by reason of the operation, handling, transportation or use of the equipment by or while in the hands of the Lessee or the Lessees employees, agents, or carriers.

The Lessee hereby releases any and all claims which the Lessee may have now or in the future against the Lessor for any loss or damage which the Lessee may suffer, either directly or indirectly, by reason of the condition of the equipment or its suitability for the work it may be required to perform.

12. Force Majeure

In the event the Lessor’s performance, including its ability to deliver the equipment, is hindered or impaired due to “Force Majeure” as defined herein then any resulting delay or failure on the part of the Lessor shall not constitute a default hereunder or give rise to any claim for damages. Force Majeure shall include acts of God, strikes, lockouts or other significant industrial disturbances, sabotage, war, blockades, insurrections or riots, fires, walkouts, arrests and restraints of rules and people, civil disturbances, explosions, malfunctions, interruptions, breakdowns, breakages or accidents to machinery, equipment or systems, shortages or commercial disruptions in the supply of materials, equipment or services, any legislative, administrative or judicial action, transportation restrictions or disruptions, road conditions, weather conditions, any other act, omission or event whether of the kind herein enumerated or otherwise not within the reasonable control of the Lessor. In the event that the performance of the Lessor, is in the reasonable opinion of Lessor is so affected, then Lessor will notify the Lessee in writing providing a workaround plan, if possible, and shall complete the performance of the rental agreement with such adjustments relating to timing as are reasonably required by the existence of the Force Majeure.

13. Event of Destruction or Partial Destruction

If the rented equipment is damaged or destroyed while in the possession of the Lessee, all monies received or receivable by the Lessee under any insurance policy held by the Lessee covering rental equipment shall forthwith be paid to the Lessor in an amount required to cover the remaining rent for the term of the rental period plus the cost of repair to the equipment and/or replacement cost of the equipment. In the event that insurance monies are for any reason whatsoever insufficient to cover the cost of damage, rent, repair cost, replacement of the rented equipment, the Lessee shall upon demand pay to the Lessor an amount equal to such deficiency. In the event that the damage should render the equipment unfit for use by the Lessee, then this rental agreement shall, at the election of the Lessor be terminated on Five (5) days written notice directed to the Lessee and the Lessee shall pay to Lessor such accrued rental fee as may then be due. In the event that the Lessor does not elect to terminate this rental agreement by reason of the destruction or partial destruction of the equipment then the Lessor shall replace the equipment with the same or similar equipment (but not of lesser quality) within thirty (30) days from the date of such destruction or damage rendering the equipment unusable and there shall be no abatement of rent in favor of the Lessee.

14. Indemnification

The Lessee shall indemnify and save harmless Lessor from any, and all liability, damages, costs, claims, suits or actions arising out of:

(a) Any damage to the equipment, excluding damage caused by Lessor, its agents or sub-contractors.
(b) The use, occupancy or possession of the equipment by the Lessee including any environmental claims.
(c) Any injury to person or persons including death resulting at any time therefrom or occurring in or about the equipment.
(d)Any injury to person or persons including death or damage to property occasioned by the use or occupancy of the said Equipment or during the transportation of the equipment by the Lessee, its employees or agents.
(e) Lessor’s ownership of the equipment.

The Lessor makes no representation or warranty, express or implied, that the equipment is, or will be, free of mold, bacteria or other biological contaminants of any nature whatsoever. The Lessee acknowledges that it is an express term of the rental agreement that Lessor and its officers, directors, employees, agents, affiliates and other representatives shall have no responsibility or liability, in contract, tort or otherwise, to the Lessee or its officers, directors, employees, agents, affiliates or other representatives or any other person who occupies or otherwise uses the equipment, for any loss, damages or other claim arising from any presence of mold, bacteria or other biological contaminants in or on the equipment. In the event that the Lessor and/or any of its officers, directors, employees, agents, affiliates and representatives are found liable in any amount, tort or otherwise, to any person for any loss, damages or other claims arising from any presence of mold, bacteria or biological contaminants in or on the equipment, the Lessee agrees to fully indemnify the Lessor and its officers, employees, agents, affiliates and representatives in respect of all amounts for which they are found liable.

15. Insurance

Further, the Lessee agrees to indemnify Lessor and its officers, directors, employees, agents, affiliates and representatives for all legal fees and disbursements incurred in responding to any claim against any of them relating to or rising from presence or alleged presence of mould, bacteria or other biological contaminants in or on the equipment.

The Lessee during the term of this Lease will insure and keep insured the Equipment, to the extent possible, and every part thereof by insurance in the name of the Lessee with first loss payable to the Lessor for the full insurance value as specified against loss or damage from fire, lightning, explosion, windstorm, hail, riot, smoke damage, flood or from whatever cause arising. The insurance policy shall contain a provision whereby the Insurer waives any rights of subrogation which the Insurer may have with respect to the Lessor. Premiums for such insurance shall be paid by the Lessee and a certificate of insurance shall be deposited with the Lessor if so requested by the Lessor. All such insurance shall be carried with an Insurer satisfactory to the Lessor. The Lessee shall be responsible for any and all deductibles. The Lessee covenants that it will maintain and keep in force during the term of this rental agreement, commercial general liability covering public liability and property damage in a sum not less than Two Million ($2,000,000.00) Dollars without recourse to the Lessor with an insurer reasonably satisfactory to the Lessor and the Lessee shall deposit with the Lessor a certificate of insurance evidencing such insurance if so requested by the Lessor. The insurance policy or policies shall contain an endorsement whereby the Insurer waives any right of subrogation that the Insurer may have with respect to the Lessor. In the event that the Lessee shall fail to insure and keep insured as herein provided and provide evidence of such insurance when requested, the Lessee agrees to be invoiced and thereafter to pay for insurance covering all equipment rented to the Lessee under this rental agreement based on the value of the equipment, and the amount thereof shall be payable with the next ensuing monthly installment of rent.

16. Levies, Liens and Seizure

The Lessee shall keep the equipment free of levies, liens and encumbrances, and shall pay all assessments, charges and taxes (whether federal, provincial, or municipal) which may be levied or assessed directly or indirectly against or on account to the said equipment or any interest therein or use thereof. If the Lessee fails to pay such fees, assessments, charges or taxes, the Lessor may pay them, in which event the cost thereof together with the Lessor’s service charges for payment thereof (8% of amount paid) shall constitute additional rent which shall become immediately due and payable as arrears of rent. The Lessee agrees to give the Lessor immediate notice in case the rental equipment is liened, charged or otherwise becomes subject to any seizure proceedings.

17. Title

The Lessor retains full title and rights to the equipment and the Lessee will not during the term of this rental agreement, sell, offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the equipment or any part of parts thereof, or with the benefit of this Lease or do or cause or permit to be done any act or thing which might prejudice the Lessor’s rights in the Equipment without the Lessor’s consent in writing. The Lessee agrees that the equipment is a chattel and if placed on land owned by the Lessee, shall not be deemed to be a fixture and if placed on lands other than those owned by the Lessee, the Lessee shall secure from the owner of such lands an undertaking that the Equipment shall not be deemed a fixture and may be removed at any time without notice in accordance with the terms of the rental agreement.

18. Condition of Equipment

The Lessee acknowledges that the equipment may have been used by other parties since the date of manufacture.

19. Assignment

Lessee shall not assign this rental agreement without the prior written consent of Lessor which consent shall not be unreasonably withheld.

20. Termination

In the event that the Lessee threatens to cease to continue to carry on business, becomes insolvent or bankrupt, voluntarily or involuntarily, or fails to maintain and operate or to return the equipment, or violates any provision hereof, the Lessor may upon giving the Lessee three (3) days prior written notice, terminate the lease, re-take possession of the equipment without liability of any kind, without prejudice to the Lessor’s right to recover all rentals due and full damages for any injury to and all expenses incurred in obtaining the return of the equipment.

21. Risk of Loss

Delivery of equipment to Lessee will be deemed to occur as on date of shipment by Lessor to Lessee and all risk of loss is thereafter born by Lessee. Lessee assumes all liability for loss once equipment is loaded on their carrier and equipment leaves the Lessor.

22. Customer Security Deposit

It is understood and agreed between the parties that the Lessor may require a security deposit and such deposit if required will be retained by the Lessor until such time as the equipment is returned and inspected. Payment of this security deposit does not relieve the Lessee from paying any rental, transport or other charges under this rental agreement and the Lessor may, at its sole discretion, apply the security deposit against amounts owing by Lessee under this rental agreement. The Lessor shall return the security deposit when, in Lessor’s reasonable opinion, it is no longer required. No interest shall be payable on any security deposit held by the Lessor.

23. Third Party Payments

The Lessee will duly obtain and punctually pay all rent, rates, taxes, including property taxes, regulatory approvals, permits, charges, licenses, tariffs, tolls and impositions of every nature and kind whatsoever incurred and which may be payable in respect to the transportation, possession or use of the equipment or in respect of the lands on which the equipment shall from time to time be situated and will protect the equipment against distress, execution or seizure and indemnify the Lessor against all losses, cost, charges, demands or expenses incurred by the Lessee by reason of or in respect of any distress, execution, seizure or failure of the Lessee to make payments as herein required. The Lessor shall not in any way be obliged to ascertain, obtain and/or advise the Lessee of any requirements of any jurisdiction in which the Equipment is to be transported in, used by or in possession of the Lessee. In the event that the Lessor is required to seek redress for the courts for any amount claimed under this paragraph the Lessee agrees to pay the costs of the Lessor on a full indemnity basis.

24. Entire Agreement

Save and except as expressly set out in this rental agreement there are no representations, warranties, collateral warranties or conditions given or made by the Lessor with respect to the equipment including without limiting the generality of the foregoing, the condition of the equipment, its merchantability, its fitness for a particular purpose or its compliance with federal, provincial or local building codes, by-laws or regulations. This rental agreement constitutes the entire agreement between the parties, superseding and replacing all prior documents and representations with respect to the subject matter herein. If any provision of this rental agreement is deemed unenforceable for any reason, then that provision shall be severed from this rental agreement and all other terms and conditions herein shall remain in effect and be binding on the parties. This rental agreement may only be amended in writing buy a document signed by both parties. The headings in these terms and conditions are for convenience only and do not constitute terms of this Agreement.

25. Notices

Any notice to either party shall be in writing and may be mailed by prepaid registered post to the other party. Any notice for the Lessor must be sent to:

20204 110 Ave NW,
Edmonton, AB T5S 1X8
Attn: Brad Abel

Any notice for the Lessee shall be sent to their head office in Alberta or the head office in the Province in which the equipment is rented. Alternatively, any address which accompanies payment of the rent or any other address designated by the Lessee. Any notice shall be deemed to be received by the addressee on the third business day next following that on which it was mailed.

26. Racking

The Lessee must seek written authorization from the Lessor for any “Racking” of the leased equipment. Any time period granted for “Racking” by the Lessor shall be limited to no more than NINETY (90) days. During any period of agreed “Racking” the Lessee shall not have to pay the full rental amount however must ensure that the rented equipment is insured for full replacement value and the Lessor had unrestricted access to the rented equipment.

27. Non-waiver

No failure on the Lessor’s part to exercise any power reserved for it herein, or to insist on strict compliance by the Lessee will constitute a wavier by the Lessor of its ability to demand strict compliance. Waiver by the Lessor of any particular default shall not impair its ability to demand strict compliance on any subsequent default of a similar or identical nature.

Purchase Orders

Definitions

1.1 Definitions. Unless the context requires otherwise, the following capitalized terms mean:

“Affiliate” shall have the same meaning given to that term in the Canada Business Corporations Act, or any similar, replacement or supplemental Law in effect from time to time, which meaning shall, mutatis mutandis, apply to partnerships, limited liability partnerships and limited partnerships.
“Claim” or “Claims” means, as the case may be, any one or more of: loss, damage, cost, expense, disbursement, penalty, fine, claim, demand, action, proceeding, lien (whether builders’, mechanic’s, construction or other type of lien), legal hypothec, suit, liability, judgment, award, decree, determination, adjudication, unpaid tax of any kind (including withholding tax), cost of investigation and any type of fee (including legal fees, on a solicitor-and-own-client basis), together with any interest in relation thereto at the applicable rate.
“Goods” means all supplies, goods, materials, equipment, components and Services required to be supplied by the Seller in accordance with the Purchase Order.
“Indemnitees” means Ketek Infinity, its Affiliates and their respective Personnel.
“Invoicing Requirements” means Ketek Infinity’s invoicing and accounts payable standards
and as specified in the Purchase Order and as may be provided by Ketek Infinity from time to time.
“Law” or “Laws” means collectively all valid applicable common law, federal, provincial, state and municipal and other local laws, orders, rules, regulations and decisions of regulatory bodies, including, occupational health and safety, fire, employment insurance, workers’ compensation, Hazardous Substance, transportation of dangerous goods and handling, environmental protection legislation, building codes, anti-bribery law or international convention, as may apply now or in the future, including but not limited to the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (U.S.), the Bribery Act (U.K.) and the OECD Convention on Combating Bribery of Foreign Public Officials, and any other governmental requirements, work practices and procedures prescribed by law and related to the Seller, the Site, the Goods or the Services.
“Personnel” means a party’s directors, officers, employees, contract personnel, representatives, advisors and agents.
“Purchase Order” means the purchase order issued by Ketek Infinity and all other attachments identified in the purchase order.
“Records” means the records of the Seller relating to the Purchase Order or the Goods, and which include paper and electronic documents and/or copies in their native form, as the case may be, of:(i) original invoices and records of account for all Goods supplied, and any other items of cost forwhich Ketek Infinity is obliged to reimburse the Seller, and information relating to Seller’s compliance with the Invoicing Requirements;(ii) records relating to any termination or suspension costs;(iii) information relating to Seller’s compliance with the Law and the Supplier Code of Conduct, and the Seller’s use of Confidential Information; and
“Seller” means the party named in the Purchase Order as the supplier of the Goods to Ketek Infinity.
“Services” means all labour, supervision and such other work and materials to be supplied or performed in connection with the Goods by the Seller at the Site
in accordance with the Purchase Order.
“Site” means the ship-to site(s) identified in the
Purchase Order.
“Ketek Infinity” means the Ketek Infinity entity identified in the Purchase Order.
“Terms and Conditions of Purchase” means this document entitled “Terms and Conditions Goods and Services Purchase Order” of the Purchase Order.

Precedence

2.1 Precedence.The Terms and Conditions of Purchase shall govern if inconsistent with the terms and conditions on the face of the Purchase Order.

Scope of Supply

3.1 Goods. The Seller shall supply the Goods in accordance with the Purchase Order.

3.2 Time. The Seller acknowledges that timely supply of the Goods is a matter of paramount importance to Ketek Infinity.

Changes

4.1 Ketek Infinity Change. Ketek Infinity may, at any time, make changes
to the Goods including, without limitation, additions, deletions, rescheduling and acceleration or deceleration to all or any part of the Goods.

Independent Contractor

5.1 Independent Contractor. The Seller is an independent contractor and not the agent of Ketek Infinity.

Representations

6.1 Seller’s Performance Representations and Warranties. The Seller represents and warrants that the Goods:

shall be free from all latent and other defects or deficiencies;
shall be of merchantable quality;
shall be fit for the purpose for which the Goods have been manufactured, fabricated or supplied; and
are now, and shall continue to be, free and clear of all liens, encumbrances, any adverse Claims, demands or other interests.

Warranty

7.1 Remediation of Defective or Deficient Goods. The Seller shall, at its own risk and expense, including all costs to access the Goods, but subject to the limit specified in Paragraph 11.1 Limitation of Liability for the Seller, remedy without delay any defect or deficiency in the Goods discovered within 24 months after delivery of the Goods or
12 months after the Goods are put into service under normal operating conditions, whichever occurs first.

7.2 Indemnification by Seller to Ketek Infinity for Remediation. Should the Seller fail to promptly remedy the defects or deficiencies in accordance with Paragraph 7.1 Remediation of Defective or Deficient Goods, Ketek Infinity may proceed with any activities necessary to remedy the defects or deficiencies and the Seller shall indemnify and hold harmless Ketek Infinity from any Claim suffered, sustained, paid or incurred by Ketek Infinity.

Return of Goods

8.1 Return of Goods. In the event any Goods are delivered in error, rejected as not being in accordance with the Purchase Order, or overages in excess of trade practice, then Ketek Infinity shall have the right to return such Goods at the Seller’s expense and risk. Ketek Infinity will not pay restocking fees.

Insurance

9.1 Insurance Coverage. Without limiting any of the obligations or liabilities under the Purchase Order, the Seller shall obtain at its own expense and cost, a policy of Commercial General Liability Insurance suitable to Ketek Infinity in an amount of not less than $5 million per occurrence covering Products and Completed Operations Liability. This policy will respond to property damage to Ketek Infinity’s existing facilities.

Liability and Indemnification

10.1 Liability of Seller. The Seller agrees that it shall be liable to and indemnify and hold harmless the Indemnitees for all Claims whatsoever which the Indemnitees may suffer, sustain, pay or incur as a result of and to the extent of: (i) the negligence; and (ii) breach of contract; of the Seller, arising out of or incidental to the performance or non- performance of the Seller’s obligations or the provision of the Goods under the Purchase Order.

Limitation of Liability

11.1 Limitation of Liability for the Seller. Subject to Paragraph 11.2 Gross Negligence and Willful Misconduct and the Seller’s obligations to indemnify pursuant to Article 12 Third Party Claims, Article 18 Confidentiality, Article 19 Intellectual Property and Article 21 Taxes, which shall not be limited in any way, the Seller’s liability under this Purchase Order shall be limited to the greater of:
(a) all amounts of applicable coverage under policies of insurance required to be maintained under the Purchase Order; or
(b) the Purchase Order price.

11.2 Gross Negligence and Willful Misconduct. The limitation of the Seller’s liability, specified in Paragraph 11.1 Limitation of Liability for the Seller shall not apply in respect of liability of the Seller arising from, or connected to, its gross negligence or willful misconduct. Where the Purchase Order is governed by the Laws of Quebec, “gross negligence and wilful misconduct” shall have the same meaning as “intentional or gross fault”.

Third Party Claims

12.1 Third Party Claims. The Seller agrees that it shall be liable to and indemnify and hold harmless the Indemnitees from all Claims whatsoever by third party which may be brought or made against the Indemnitees or which the Indemnitees may sustain, pay or incur as a result of and to the extent of the acts, faults, errors, omissions or negligence of the Seller arising out of or incidental to the performance or non-performance of the Seller’s obligations or the provision of the Goods under the Purchase Order or the conduct of the Seller.

Consequential and Punitive Damages

13.1 Consequential and Punitive Damages Exclusion. Neither party shall be liable to the other for consequential damages, punitive damages or damages for losses of profits, revenue, business, reputation or financing and lost opportunity.

13.2 Direct Lost Profits. Notwithstanding Paragraph 13.1 Consequential and Punitive Damages Exclusion, the Seller shall be liable to the Indemnitees for damages for losses of profits, revenue, business, reputation or financing and lost opportunity if and to the extent that such losses are a direct result of: (i) the negligence; or (ii) breach of contract; of the Seller; arising out of or incidental to the performance or non-performance of the Purchase Order or the supply of the Goods by the Seller.
13.3 Exception to Consequential and Punitive Damages Exclusion. Paragraph 13.1 Consequential and Punitive Damages Exclusion shall not apply to the Seller’s obligation to indemnify the Indemnitees pursuant to Paragraph 12.1 Third Party Claims, Paragraph 18.2 Confidentiality Indemnification and Paragraph 19.1 Intellectual Property Indemnification.

Title Transfer

14.1 Title Transfer. Title to the Goods or part thereof shall be vested in Ketek Infinity when the first of the following events occurs:
(a) the Goods, or a portion thereof, are first identifiable as being appropriated to the Purchase Order;
(b) Ketek Infinity pays for the Goods, or part thereof; or

14.2 Refusal of the Goods. Any transfer of title to the Goods shall be without prejudice to Ketek Infinity’s right to refuse the Goods in case of non-conformity with the requirements of the Purchase Order.

14.3 Risk of Loss. Notwithstanding Paragraph 14.1 Title Transfer, care, custody, control and risk of loss of the Goods, and liability arising from the storage and transportation of the Goods, remains with the Seller until Ketek Infinity takes physical possession an d accepts delivery of the Goods.

Payment

15.1 Payment. Subject to the terms and conditions herein, payment shall be made in accordance with the Purchase Order.

15.2 Withholding. Notwithstanding any other provision, an amount otherwise due to the Seller may be withheld, without payment of interest, if, in the opinion of Ketek Infinity , it is necessary to protect Ketek Infinity from loss on account of the Seller:

failing to provide the Goods in accordance with the terms of this Purchase Order;
being in default of any condition of the Purchase Order, including without limitation, quality assurance;
not promptly remedying defective or deficient Goods; or
failing to promptly and satisfactorily pay any Claim for labour performed or materials or equipment furnished;
and if and when the cause of the withholding of any amount is removed and satisfactory evidence of such removal is furnished to Ketek Infinity , Ketek Infinity shall promptly pay the amount withheld to the Seller pertaining to such cause.

Set-Off

16.1 Set-Off. Ketek Infinity may deduct and set-off any amounts owed by the Seller to Ketek Infinity under the Purchase Order, howsoever arising, from any amount due or owing by Ketek Infinity under any contract Ketek Infinity has or may have with the Seller.

Suspension or Termination

17.1 Suspension or Termination by Ketek Infinity. Ketek Infinity may, at any time, without cause, suspend or terminate the Purchase Order for any reason on 15 days’ written notice; provided, however, that Ketek Infinity may, upon giving 24 hours’ notice, immediately terminate the Purchase Order for cause.

Confidentiality

18.1 Confidential Information. Any and all confidential information of Ketek Infinity or the Seller received by the other party to the Purchase Order shall be received in the strictest confidence.

18.2 Confidentiality Indemnification. Without limitation and in addition to any other rights or remedies Ketek Infinity may have, the Seller acknowledges that it shall be liable to and shall indemnify and hold harmless the Indemnitees from all inter- party and third party Claims brought against or suffered, sustained, paid or incurred by the Indemnitees arising out of or resulting from a breach of Article 18 Confidentiality by the Seller.

18.3 Further Relief. It is understood that a breach of any of the promises or provisions contained in this Article may cause the other party to suffer a loss for which it could not be adequately compensated by monetary damages. In addition to claiming damages or an indemnity, the affected party shall be entitled as a matter of right to seek an injunction and enforce the terms and provisions of this Article. The parties agree that the affected party will suffer irreparable harm as a result of a breach of any of the promises or provisions contained in this Article, and the other party consents to any preliminary or ex parte applications for such relief to any court of competent jurisdiction, including, without limitation, equitable relief including injunctive relief and specific performance. The foregoing rights shall be cumulative and shall be in addition to any other remedies which may be available to the affected party.

18.4 Term. The obligations under this Article 18 Confidentiality shall continue for a period of 5 years following the date the Purchase Order becomes a binding agreement in accordance with Paragraph 25.8 Binding Agreement.

Intellectual Property

19.1 Intellectual Property Indemnification. The Seller shall be liable to and shall indemnify and hold harmless Ketek Infinity from and against any and all Claims arising out of or resulting from the actual or alleged infringement of any rights under patents, trade secrets, copyright or other intellectual property rights or any litigation based thereon in respect of Goods supplied by the Seller.

Compliance with Laws and Supplier Code of Conduct

20.1 Compliance with Law. The Seller shall comply with all applicable Law in the performance of its obligations under the Purchase Order.

20.2 Compliance with Supplier Code of Conduct. The Seller shall and shall ensure that its subcontractors and their respective Personnel comply with the Supplier Code of Conduct at the cost and expense of the Seller. In the case of any difference between the requirements of Supplier Code of Conduct and the Law, the stricter or higher standard shall apply.

Taxes

21.1 Tax Responsibility. With the exception of goods and services tax/harmonized sales tax (as defined in the Excise Tax Act (Canada)) payable on amounts due to the Seller, payment of which shall remain the responsibility of Ketek Infinity, the Seller shall pay all taxes in relation to the Goods supplied under the Purchase Order in compliance with all applicable Law.

21.2 Tax Indemnity. The Seller shall indemnify and save harmless Ketek Infinity from any and all Claims which may be made or assessed against Ketek Infinity in respect of the Seller’s obligations described in Article 21 Taxes.

Audit

22.1 Audit. At any time during normal business hours until 2 years following delivery of the Goods, Ketek Infinity or its nominees shall have the right to inspect and audit the Records.

UN Convention on the Sale of Goods

23.1 Exclude the Application. The parties hereto expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

Governing Law

24.1 Governing Law and Jurisdiction. The Purchase Order shall be governed by and construed in accordance with the Laws of the province where the Site is located. The parties agree to accept and submit to the exclusive jurisdiction of the courts of that province.

General Matters

25.1 Assignment. Neither party may assign the Purchase Order without the prior written consent of the other party, which consent shall not be unreasonably withheld.

25.2 Subcontracting. Seller shall not subcontract any portion of the Purchase Order without the prior written consent of Ketek Infinity, which consent shall not be unreasonably withheld.

25.3 Entire Agreement. The Purchase Order constitutes the entire agreement between the parties and shall supersede and replace any and all prior agreements between the parties with respect to the subject matter hereof, and may be amended only by written instrument signed by the parties.

25.4 Amendments. No amendment to the Purchase Order
be binding on Ketek Infinity and the Seller, unless made in writing and signed by the authorized representatives of both parties.

25.5 No Waiver. Ketek Infinity’s failure to insist on performance of any term, condition or instruction or failure to exercise any right or privilege, or its waiver of any breach or default shall not thereafter waive any such term, condition, instruction, right or privilege.

25.6 Binding Agreement. The Purchase Order shall become a binding agreement upon the Seller signing and returning an executed copy of the Purchase Order or upon the Seller otherwise acknowledging acceptance of the Purchase Order or commencing performance of the Purchase Order, whichever occurs first.

25.7 Exclusions. Any reference to the Seller’s documents (quotation, bid, or proposal) does not imply acceptance of any terms, conditions, or instruction contained in such document. Any Seller’s terms and conditions stated in any communication shall not apply to the Purchase Order and shall not be applicable in the interpretation of the Purchase Order.

Contractor Pre-Qualification