GENERAL TERMS AND CONDITION
In this Agreement, the following terms shall have the meanings set out below unless the context requires otherwise:
1.1 "Agreement" means the proposal, document, or other agreement to which these general terms and conditions are attached including all exhibits and schedules and the expressions "hereof", "herein", "hereto", "hereunder", "hereby" and similar expressions refer to this Agreement and not to any section, exhibit or schedule or other portion of this Agreement.
1.2 "Customer" means the person or persons party to this Agreement other than Petroservice If more than one person is identified as the Customer than "Customer" shall mean all the persons identified, jointly and severally.
1.3 "Petroservice" means Petro Service Limited, a corporation under the laws of the Province of New Brunswick.
1.4 "Work" means the supply of labour and materials identified herein as being carried out by Petroservice for the Customer in the manner described or set out herein.
2. WORK; INVOICING AND PAYMENT
2.1 Petro Service Limited shall submit progress billing to the Customer up to twice a month for payment within thirty (30) days. The progress billing will be for materials and equipment supplied to the Customer to date and/or for services rendered to date, including authorized change orders.
2.2 All Work provided by Petroservice shall be rendered in accordance with and subject to the terms of this Agreement.
2.3 Petroservice shall order all materials and shall take out all subcontracts required to carry out the Work unless otherwise indicated herein. Petroservice will comply with the holdback requirements of any mechanics' lien, construction lien or similar lien legislation.
2.4 The Customer agrees to pay Petroservice the amount set out herein. Fees for Work provided hereunder shall be payable when invoiced and shall be deemed overdue if they remain unpaid for thirty (30) days. Customer may request back-up documentation relating to a particular invoice of Petroservice within fifteen (15) days of receipt of such invoice by Customer. However, such request shall not extend the date on which the invoiced amounts are due and payable. Interest on any late payments shall accrue at the rate of two per cent (2%) per month or the highest rate permitted by applicable law, whichever is less, from the date such amount is due until finally paid. Customer shall reimburse Petroservice for all reasonable costs incurred (including reasonable attorneys' fees) in collecting past due amounts.
2.5 The Customer shall pay or reimburse Petroservice for all sales, use, excise, personal property, value-added, or other federal, provincial, or local taxes, duties, or any similar assessments based on the Work provided under this Agreement; however, the Customer shall have no responsibility for Petroservice federal and provincial income or franchise taxes.
2.6 Where the Customer directs, instructs or consents to Petroservice carrying out any work or supply or installation of any products in addition to the Work described herein and Petroservice agrees to carry out such other work, supply or installation, the Customer agrees to pay Petroservice such costs as may be incurred by Petroservice (including its applicable markup or commission) for carrying out such other work, supply or installation, as the case may be, in accordance with Petroservice's standard product list and fee schedule in effect at the time. Petroservice's daily rate is based on an eight-hour workday. Customer shall reimburse Petroservice for documented travel and out-of-pocket expenses incurred in performing such other work, supply, or installation.
3.1 During the term of this Agreement, Petroservice shall maintain commercially reasonable insurance coverage corresponding to the scope of the work offered hereunder including, but not limited to: (i) workers' compensation, disability, employment insurance; and (ii) Comprehensive General Liability Insurance.
3.2 The Customer shall obtain "all risks" property insurance to cover the work and materials in the joint names of the Customer and Petroservice against loss or damage to its full insurable value with loss payable to the Customer and Petroservice as their respective interests may appear.
4. TERM TERMINATION
4.1 If either party materially breaches any term or condition of this Agreement, and such breach continues for a period of thirty (30) days after notice from the other party (except for a breach regarding failure to pay amounts due, in which case the period to cure shall be five (5) days), the other party may terminate this Agreement immediately upon notice.
4.2 In the event of termination of this Agreement, any amounts owed to or incurred by Petroservice under this Agreement for Work completed or commenced before such termination will be immediately due and payable.
4.3 Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Customer's obligation to pay all fees that accrued prior to such termination.
5. WARRANTIES; REMEDIES; LIMITATION OF LIABILITY
5.1 In performing the Work described in this Agreement, Petroservice is acting in its capacity as a supplier and installer of materials and products only. Under no circumstances shall Petroservice be construed to be providing professional or engineering advice or services to the Customer. Petroservice warrants and represents that any Work shall be provided by qualified professionals according to the standard performed by Petroservice for other clients in similar industries. Petroservice will warrant the workmanship for the Work provided by it for a period of thirty (30) days following completion of such Work.
5.2 In the event of a breach of the above warranty, written notice thereof shall be given to Petroservice promptly, but not later than ten (10) days from the date on which such Work were performed. Such notice shall describe the breach in detail, and Petroservice will re-perform any such Work that was defective. For all products manufactured by parties other than Petroservice, the original manufacturer, not Petroservice, shall provide any warranty and technical support in respect of such product. The warranties and technical support may vary from product to product. This Section 5.2 shall constitute Customer's sole and exclusive remedy for breach of the above express warranty.
5.3 Except as provided in this Section 5, all Work hereunder are provided "as is" without any warranty whatsoever. Customer recognizes that the "as is" clause of this Agreement is an important part of the basis of this Agreement, without which Petroservice would not have agreed to enter into this Agreement. Petroservice expressly disclaims all other warranties, terms, or conditions, express, implied, or statutory, regarding the Work, including any warranties of merchantability, title, fitness for a particular purpose and infringement. No representation or other affirmation of fact, regarding the Work shall be deemed a warranty for any purpose or give rise to any liability of Petroservice whatsoever. Customer acknowledges that it has relied on no warranties other than the express warranty in this Agreement.
5.4 Customer waives all liability of Petroservice, ITS AFFILIATES, ASSOCIATES, EMPLOYEES, CONTRACTORS, AGENTS, OR OTHERS FOR WHOM IN LAW IT IS RESPONSIBLE from negligence, whether contributory, sole or joint. Petroservice shall not be liable to Customer for any incidental, indirect, exemplary, special, punitive, or consequential damages, under any circumstances, including, but not limited to lost profits, revenue or savings, LOSS OF USE, DOWN-TIME, OR COST OF A SUBSTITUTE PRODUCT even if Petroservice had been advised of, knew, or should have known, of the possibility thereof. Under no circumstances shall Petroservice's aggregate cumulative liability hereunder, whether in contract, tort, negligence, misrepresentation, strict liability or otherwise, exceed the total amount actually paid to Petroservice pursuant to this Agreement for the six (6) month period preceding OR FOR ANY PRODUCT PROVIDED HEREUNDER, OR PART THEREOF, WHICH GIVES RISE TO THE CLAIM, THE AMOUNT OF A REPLACEMENT OF THE PRODUCT OR AT THE OPTION OF PETRO SERVICE LIMITED THE AMOUNT OF THE REPAIR OF SUCH PRODUCT. Customer acknowledges that the fees paid by it reflect the allocation of risk set forth in this Agreement and that Petroservice would not enter into this Agreement without these limitations on its liability.
6. GENERAL TERMS
6.1 [Conflicts] If any terms in a work order, invoice, direction, or instruction relating to the Work conflicts with the terms of this Agreement, the terms of this Agreement shall supersede such other the terms. In the event of any conflict between these general terms and conditions and any other provision of this Agreement, the provision of these general terms and conditions shall govern to the extent of such conflict unless otherwise expressly set out herein.
6.2 [Assignment] Customer may not assign this Agreement without the prior written consent of Petroservice, which consent will not be unreasonably withheld. This Agreement will bind and inure to the benefit of any permitted successors or assigns.
6.3 [Controversies] Before either party commences any action against the other party, it shall give written notice to the other party of its intention to file a claim, and the senior management of the parties then shall meet in good faith to resolve the dispute.
6.4 [Force Majeure] Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation: acts of God or nature; labour disputes; sovereign acts of any federal, provincial,or foreign government; or shortage of materials.
6.5 [Governing Law] This Agreement shall be governed by and construed in accordance with the laws of the province in which the Work is carried out and the laws of Canada applicable therein.
6.6 [Relationship] Petroservice shall be and act as an independent contractor hereunder and no employee of either party shall be deemed to be an employee of the other for any purpose whatsoever. Neither party may bind the other in any way. Nothing in this Agreement will be construed to make either party the agent or legal representative of the other or to make the parties partners or joint venturers.
6.7 [Waiver] The waiver of one breach or default shall not constitute the waiver of any subsequent breach or default and shall not act to amend or negate the rights of any party.
6.8 [Notices] Notices will be delivered to a party's address first set out above, or to another address that a party properly notified the other that notices should be sent.
6.9 [Interpretation] Words importing the singular include the plural and vice versa; words importing gender include all genders. This Agreement, including the exhibits, schedules, and attachments hereto, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. The headings contained herein are included solely for convenience of reference, are not intended to be full or accurate descriptions of the contents thereof and shall not be considered part of this Agreement. Time shall be of the essence of this Agreement. If any covenant or provision of this Agreement is prohibited in whole or in part in any jurisdiction, such covenant or provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition without invalidating the remaining covenants and provisions hereof and shall, as to such jurisdiction, be deemed to be severed from this Agreement to the extent of such prohibition. Except as specifically set forth or referred to herein, nothing herein, express, or implied, is intended or shall be construed to confer upon or to give any person, other than the parties and their respective successors and assigns, any rights, or remedies under or by reason of this Agreement. This Agreement may not be amended or modified in any respect, except by written instrument executed by the parties hereto.