Tiltran Services Inc.

Standard Terms and Conditions of Sale and Service

The following terms and conditions will apply to any sale of goods or services by Tiltran Services Inc. (“Tiltran”), and acceptance of these terms and conditions is an express condition of such sale. Buyer will be deemed to have full knowledge of, and to have accepted, these terms and conditions if any goods or services are requested, ordered, or delivered to and accepted, by Buyer from Tiltran.

1. SPECIFIC SERVICE-RELATED MATTERS

With respect to orders for maintenance services accepted by Tiltran, Buyer must provide at least three working weeks notice, prior to the scheduled date of inspection, to coordinate isolations and inspections.

All waste oil, etc. arising out of services provided by Tiltran at Buyer’s location will remain on site, and Buyer will have the sole responsibility to properly dispose of them at its sole cost. Buyer will ensure that a representative is on-site for the duration of any power outage in order to ensure that Tiltran has full access to all switches and disconnects required for the proper performance of services by it. Tiltran will make any necessary arrangements for utility isolation. Unless otherwise stated, any and all charges from the local utility or municipal or other public authority will be the sole responsibility of Buyer.

If Buyer utilizes the services of a metering service provider (MSP) or is involved as a “market participant” (as defined by the Independent Electricity System Operator (IESO)), Buyer is solely responsible to co-ordinate and obtain any required MSP and/or IESO inspection, at its sole cost. If Tiltran is required to correct any ESA deficiencies identified as a result of such inspection, the cost thereof will be in addition to Tiltran’s quoted pricing.

Buyer will be responsible for any additional costs incurred by Tiltran where Tiltran’s crew is unable to complete a project in a timely manner due to unanticipated delays beyond Tiltran’s control, such as delays caused by (i) Buyer, (ii) the utility’s failure to disconnect or re-connect service in a timely manner, or (iii) the weather. Tiltran will use all reasonable efforts to minimize such costs.

Note that it is Tiltran’s policy to be on hand for re-energization.

Site access must be free from building materials, debris and other obstruction. The construction project site must be finished to grade within a clearance of +/- 6 inches (15 cm).

2. WARRANTIES

New Products – All new products supplied by Tiltran pursuant to this contract are accompanied by manufacturers’ warranties.

Tiltran makes no guarantees, representations or warranties, whether express or implied, with respect to any new products supplied by Tiltran, and Tiltran specifically disclaims any implied warranties, whether of merchantability, suitability, fitness for a particular purpose or otherwise, with respect to such new products. Buyer acknowledges that its warranty with respect to new products supplied by Tiltran is limited to the warranty available from the original manufacturers.

Used or Refurbished Products – Tiltran warrants that all used or refurbished products supplied by Tiltran pursuant to this contract will conform to all specifications and drawings agreed to in writing, and will be free from defects in material and workmanship, for a period of one year from the date of shipment or delivery by it.

Tiltran will not be responsible for any labour costs relating to the removal of any defective product or the installation of any replacement product. Tiltran’s sole liability and Buyer’s exclusive remedy under this warranty will be limited to (i) the repair or replacement of any product found to be defective in Tiltran’s reasonable judgment, or (ii) at Tiltran’s sole discretion, the refund of the purchase price of such product. Buyer will be solely responsible to deliver any such defective product to Tiltran’s repair facility and for the return of the repaired product to Buyer’s location.

Services – Tiltran warrants that all services provided by Tiltran in designing, installing, supervising, servicing, repairing and/or overhauling the equipment or those parts of the equipment specified in this contract (i) will be completed in a good and workmanlike manner, consistent with normal and accepted practices in the industry, (ii) will conform to all specifications and drawings agreed to in writing, and (iii) will be completed in compliance with all applicable legislation, including the Electrical Safety Code. Tiltran will correct promptly at its own expense any breaches of this warranty which appear during a period of one year from the date of completion of the work done or services provided. This warranty is strictly limited to the scope of the work specified in this contract and
the defining of this scope of work will be the sole responsibility of Buyer. Tiltran will not be liable for any failure to be specific nor for any inaccuracy in delineating the scope of work.

General – All other guarantees, representations and warranties, whether express or implied, are hereby excluded, including but not limited to any implied warranty of merchantability, suitability or fitness for a particular purpose.

This warranty does not cover damage or failure caused by misuse, abuse, neglect, vandalism, excessive wear and tear, improper or abnormal usage, handling or operation, unauthorized repair, lack of or improper maintenance, lightning strikes, floods or other natural occurrences, power surges or operation outside of the nameplate rating.

Any work performed on a product which is not specifically authorized or performed by Tiltran will be considered a breach of this warranty and will render this warranty void.

This warranty will be void if Buyer fails to provide written notice of any breach of warranty claim to Tiltran within 30 days of Buyer becoming aware of it.

Products have been sold based upon Buyer’s independent determination that they are appropriate for Buyer’s intended application and use. Tiltran will not have any liability for any advice or recommendations given by it or for any failure to give any advice or recommendations. Any advice or recommendations given by Tiltran shall not constitute any warranty.

3. QUOTATIONS

Except as otherwise expressly stipulated in writing, Tiltran’s quotation will be void unless accepted by Buyer within 30 days from the date of quotation. Any additional work required that is beyond the scope of Tiltran’s quotation will be charged as additional work after notification to Buyer.

All quotations are based on plans, specifications and information provided by Buyer. Any alteration in such plans, specifications or information may result in a revision to the quoted price.

Contracts for construction projects shall to the extent practicable conform to Canadian Construction Association standard form contract documents.

4. PRICES

All prices are subject to change without notice. Quoted prices are fixed for a period of 30 days from the date of quotation. Prices are subject to correction for error at any time. Unless otherwise indicated, prices are based on the performance of services during normal business hours and Tiltran reserves the right to make additional charges to the extent that Buyer requires services to be performed outside of normal business hours. Unless otherwise indicated, Tiltran reserves the right to make additional charges to the extent that its work is adversely affected by contaminated soil, frost, winter or other harsh conditions or other abnormal or unexpected conditions.

Tiltran reserves the right to adjust quoted prices to reflect increased material costs based on changes to settlement prices on the London Metal Exchange (LME) between the date of quotation and the delivery of goods required to fill the order by Tiltran.

5. TAXES

Except as otherwise expressly stipulated in writing, prices for goods or services do not include any applicable goods and services tax (GST), HST, provincial sales tax or any other sales, use, valueadded or other taxes, whether present or future. Buyer will be responsible for all such taxes, in addition to the sale price specified herein.

6. FREIGHT AND INSURANCE CHARGES

Except as otherwise expressly stipulated in writing, prices for goods are F.O.B. Tiltran’s location and include packaging costs, but do not include freight or insurance charges. Buyer will be responsible for all such freight and insurance charges, in addition to the sale price specified herein.

7. DELIVERY

Customary methods of transportation/shipment, as selected by Tiltran, will be used to ship goods, provided that special methods of transportation/shipment may be used at Buyer’s additional expense if reasonable notice of Buyer’s request is given by Buyer to Tiltran prior to shipment. Tiltran is not responsible for loss or damage resulting from transportation or shipment.

Delivery schedules are approximate and are based on prevailing market conditions applicable at the time of order and on prompt receipt by Tiltran of any specifications and other information required. Tiltran may extend delivery schedules without liability where required or, at its option, cancel Buyer’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.

8. HEALTH AND SAFETY

When Tiltran’s personnel are required to attend at Buyer’s location, Buyer will prior thereto furnish a copy of such location’s health and safety policy. In addition, Buyer will provide a safe and healthy place for such personnel to work and will take all necessary precautions to ensure their safety at all times, including instructing
them in Buyer’s safety practices and ensuring a safe and effective lockout tag procedure is in effect with respect to all electrical and mechanical equipment. Except as otherwise specified by Tiltran, Buyer will be responsible for the operation of all cranes, rigging and other equipment and tools and will provide free access to all utilities that Tiltran may require to carry out its services. Buyer will immediately take all such precautions as may be required to eliminate to the extent required by applicable law any hazardous or toxic substances, wastes and other contaminants present so that the provision of services by Tiltran may proceed. If the presence of any of the foregoing causes an increase in the cost of carrying out this contract, an equitable adjustment will be made to the contract price to reflect such increased cost. Buyer will indemnify Tiltran and its directors, officers, employees, agents, representatives and subcontractors with respect to any claims, damages, losses and/or expenses arising out of Buyer’s failure to properly notify and protect Tiltran and its on-site personnel from and against any hazards existing at the site.

9. FORCE MAJEURE

Tiltran will not be responsible or liable for any loss or damage directly or indirectly incurred by Buyer resulting from any cause(s) beyond the reasonable control of Tiltran, including, without limitation, acts of God, war, terrorism, insurrection, riot, the order or injunction of any civil or military authority, fire, flood, wind, ice storm or other harsh weather, natural disasters, acts of the elements, delays in transportation, unavailability of equipment, materials or power, accidents, sabotage, lock-outs, strikes or labour disputes, faulty equipment or the failure of Tiltran’s suppliers to meet their delivery promises. The acceptance of delivery of goods by Buyer will constitute a waiver of all claims for loss or damage due to any delay whatsoever.

10. TITLE

Except as otherwise expressly stipulated in writing, title to the goods supplied by Tiltran will not pass to Buyer upon delivery to Buyer but will remain with Tiltran until all payments for the goods and for any services provided to Buyer have been paid in full. Such goods will be and will remain personal or moveable property, notwithstanding any attachment to real property. If default is made in any of the payments herein, Buyer agrees that Tiltran may retain all payments which have been made on account of the purchase price as liquidated damages, and Tiltran will be free to enter the premises where the goods may be located and remove them as Tiltran’s property, without prejudice to Tiltran’s right to recover any further expenses or damages Tiltran may suffer by reason of such non-payment. This retention of title constitutes a security interest in the goods securing
payment of all debts due to Tiltran by Buyer and may be enforced by any remedy available at law to secured parties in similar circumstances. Tiltran is authorized to register such notices or other documentation as may be necessary to fully evidence, effect or perfect such security interest.

11. LIMITATION OF LIABILITY

Notwithstanding any other provision of this contract or any applicable law, neither Tiltran nor any of its directors, officers, employees, agents, representatives and subcontractors nor any of their respective heirs, executors, administrators, legal personal representatives, successors and assigns, will be liable to Buyer for any indirect, special, consequential, incidental or punitive damages, losses, expenses or claims (including, without limitation, damages for or in relation to loss of use of equipment or facilities, lateness in delivery, loss of revenue or profits, downtime costs, the cost of capital or of substitute facilities, equipment or services or the cost of replacement power) directly or indirectly arising from or relating to or a consequence of any breach of this contract (fundamental or otherwise) or of any warranty, provision or indemnity contained herein or from any act or omission of any such persons which may give rise to legal liability (whether in negligence or other tort, strict liability, contract or under any other theory of legal liability). In no event will the aggregate liability of Tiltran in respect of this contract or otherwise exceed the aggregate price of the faulty or defective goods or services provided hereunder. In any event, all liability of Tiltran and such persons will terminate upon the expiry of the applicable warranty period provided by Tiltran.

The provisions of this Section 11 and of all other sections of this contract providing for limitation of or protection against liability of Tiltran and/or any of its directors, officers, employees, agents, representatives and subcontractors and/or any of their respective heirs, executors, administrators, legal personal representatives, successors and assigns, will survive any termination, cancellation or expiration of this contract.

Tiltran will not be liable to Buyer for any damage caused by Tiltran to Buyer’s property to the extent that such damage is covered by Buyer’s insurance.

In no event will the total liability of Tiltran exceed the total amount paid for goods provided and for services performed under this contract. Buyer acknowledges that this limitation is reasonable and that the contract price has been negotiated with this limitation in mind.

12. RETURNED GOODS

No goods may be returned to Tiltran without Tiltran’s prior written consent, and Tiltran reserves the right to decline any such return of goods. Goods will be considered for return only if they are in their original condition and are being returned by the original Buyer.

Any return of goods consented to by Tiltran will be made only for credit and will be subject to a handling/restocking charge. Goods shipped in error are not subject to this policy.

13. TERMS OF PAYMENT

Except as otherwise expressly stipulated in writing, all invoices are payable within 30 days of invoice date, on approved credit, and no cash discount will be available to Buyer. Where Tiltran has agreed to a hold-back without specific written release terms, Buyer must release or cause the release of the hold-back to Tiltran within 45 days of the substantial completion by Tiltran of its work (regardless of the status of completion of the project under the Head Contract). Unless otherwise specifically agreed to in writing, in the case of contracts for construction projects, Buyer shall make monthly progress payments against invoices to be issued by Tiltran commencing on or after the 30th day after commencement of its work based on the percentage completion of Tiltran’s work.A service charge/interest of 2% per month (24% per annum) will be applied to all overdue accounts. Waiver of any service charge for one or more months will not be, not be deemed to be, a waiver of any future service charges. The application of any such service charge will not be construed as obligating Tiltran to grant any extension of time for payment. Buyer agrees to indemnify and hold harmless Tiltran for all costs and expenses incurred by it for collection of unpaid accounts, including all legal fees on a solicitor and his own client basis.

If Buyer postpones the scheduled date of delivery of goods ordered (or otherwise fails to accept delivery on such date), Tiltran shall be entitled to invoice Buyer for such goods as if delivery had been made on the scheduled delivery date, in which case Buyer shall be obligated to pay such invoice in accordance with the terms of this contract. Buyer shall also be responsible for any additional costs (including any additional costs for trucking, loading and/or storage) incurred by Tiltran as a result of such delay.

Tiltran reserves the right to request a guarantee of Buyer’s payment obligations under this contract, in form and substance and from a guarantor acceptable to Tiltran (acting reasonably), if Tiltran in good faith believes that the prospect of payment by Buyer hereunder is impaired.

14. CHANGE OR CANCELLATION

Orders for goods and/or services for construction projects accepted by Tiltran are not subject to change or cancellation by Buyer, except with Tiltran’s written consent.

Buyer must provide a minimum of five working days prior notice in order to re-schedule planned deliveries of goods and/or services for construction projects or to cancel or re-schedule planned deliveries of maintenance services.

If (i) Tiltran consents to a change or cancellation of an accepted order for goods and/or services for a construction project, or (ii) a planned delivery of goods and/or services is re-scheduled with at least five working days prior notice, a minimum $300 change/cancellation/re-scheduling fee will apply to cover administrative expenses. If a planned delivery of goods and/or services is re-scheduled with less than five working days prior notice, a minimum $750 re-scheduling fee will apply to cover administrative expenses.

Tiltran may immediately terminate this contract without liability to Buyer in the event of Buyer’s bankruptcy or insolvency or if a receiver or trustee or similar official is appointed in respect of Buyer or in respect of all or any significant portion of its business or assets or if Buyer repudiates or breaches any of the terms of this contract or if Buyer is unable to provide a guarantee required by Section 13 promptly upon request.

In addition, Tiltran reserves the right on any such change, cancellation, re-scheduling or termination to charge Buyer with Tiltran’s reasonable resulting costs based upon expenses already incurred and commitments made by Tiltran, including, without limitation, reasonable costs from any labour done, any materials purchased, Tiltran’s usual overhead and reasonable profit and cancellation/restocking charges from Tiltran’s suppliers.

15. OTHER TERMS AND CONDITIONS

These terms and conditions will supersede and take priority over any and all previous verbal or written arrangements in connection with this contract. In the event of any conflict or inconsistency between these terms and conditions and the terms and conditions contained in Buyer’s purchase order, request for proposal or any other form issued by Buyer, whether or not any such form has been acknowledged or accepted by Tiltran, these terms and conditions will prevail. Any additional terms and conditions of Buyer will be deemed objected to by Tiltran and will not be binding unless Tiltran accepts the same in writing signed by an authorized representative of Tiltran.

16. GENERAL

This contract will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. This contract may only be modified by a contract amendment issued by Tiltran and executed by both parties. If any term of this contract is invalid or unenforceable under any statute, regulation or other rule of law, such term will be deemed deleted, but only to the extent necessary to comply with such statute, regulation or rule, and the remaining provisions of this contract will remain in full force and effect. The failure of one party at any time to require performance by the other party of any provision of this contract will in no way affect the right to require such performance at any time thereafter, nor will the waiver of one party of a breach of any provision of this contract by the other party constitute a waiver of any succeeding breach of the same or any other provision. All rights and remedies of Tiltran are cumulative and not alternative. This contract will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties hereby attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario.