Goods and Services Supplier General Terms and Conditions
  1. Precedence and Paramountcy
    • These terms and conditions shall form part of any request for quotation, quotation, purchase order, or agreement to which these terms and conditions are attached or which incorporate these terms and conditions by reference (and such document along with these terms and conditions including without limitation the schedules attached hereto as applicable shall hereinafter be referred to as the “Agreement”). This Agreement constitutes the entire agreement between Foremost and Contractor with respect to its subject matter.  This Agreement supersedes all prior communications, negotiations, representations, understandings and agreements (whether oral or written) which are made prior to the date of this Agreement.  For greater certainty: (i) any invoice, acknowledgement, written quotes or other communication issued by Contractor in connection with this Agreement shall be construed only to be for record and accounting purposes and/or to fulfill the requirements requested; (ii) any terms and conditions stated in such communication shall not be applicable to this Agreement and shall not be considered to be Contractor’s exceptions to the provisions of this Agreement; and (iii) trade custom and/or trade usage is superseded by this Agreement and shall not be applicable in the interpretation of this Agreement.  No other terms and conditions, pre-printed, posted, published, or otherwise, shall apply.
    • Unless otherwise expressly agreed upon in writing between the parties, if there is a conflict or inconsistency between the provisions of the main body of this Agreement and any schedule or other document referenced therein, including without limitation any purchase order prepared hereunder, the provisions of this Agreement shall prevail to the extent of the conflict or inconsistency, except where a specific provision in a schedule or purchase order expressly references the provision of the main body of this Agreement over which it is intended to take priority.
    • The Parties represent and warrant that they are commercially sophisticated, have had due opportunity to obtain legal advice in respect of this Agreement, and that the rules of contra preferendum shall not apply in the construction, interpretation or adjudication of this Agreement. Except as required by law or expressly stated herein, neither Party shall owe any fiduciary or good faith obligation to the other in the negotiation or performance of this Agreement and each Party shall be free to enforce its rights hereunder, strictly construed.
    • This Agreement and any Revised Purchase Order or other directives pursuant to it shall be deemed to be accepted by Contractor either by acceptance in writing, whether by signature or any other form of written confirmation, or performance of the subject Work.
    • Notwithstanding any forecast, price lists, or other indicative documentation, Foremost shall have no obligations whatsoever in respect of any Work, unless and until a duly issued purchase order is issued in respect of such Work.
  2. Definitions
    • Applicable Laws” means all orders, regulations, ordinances, standards, codes, guidelines, and other rules, of all lawful authorities and applicable regulatory bodies applicable to the Work, Foremost, Contractor or Contractor’s Subcontractors.
    • Confidential Information” means, whether marked as “confidential” or not, all information, correspondence and data, including without limitation general business information, supply chain information, corporate strategies, strategic issues, business plans, proprietary planning tools, intellectual property, trade secrets, client lists, financial data including without limitation assets and liabilities, commercial arrangements, management and labour relations, operations, facilities, technical data, marketing, sales, operating, performance, quotes, pricing, cost, know-how, and process information whether of an intellectual, technical, scientific, commercial or industrial nature, computer programming techniques, and all record bearing media containing or disclosing such information and techniques, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans, methods, or other property, acquired, developed, disclosed, supplied, conceived, or prepared by Contractor or Foremost, or both, directly or indirectly, in connection with this Agreement, orally, in writing, in drawings, by site visits, by electronic means or in any other manner.
    • Contractor” means supplier, vendor, or contractor(s) being Foremost’s counterparty or counterparties, as applicable, in the transaction governed by this Agreement.
    • Foremost Materials” means all materials, equipment, tools, drawings, specifications, data and documents supplied by Foremost to Contractor necessary for the completion of the Work.
    • GST” means goods and services tax.
    • Parties” means Foremost and Contractor, and “Party” means either of them.
    • Person” means an individual, a partnership, a corporation, a limited liability company, a trust, an unincorporated organization, a union, a government or any department or agency thereof and the heirs, executors, administrators or other legal representatives of an individual.
    • Products” means all products, substances, property, equipment, parts, goods, commodities and materials that are sold by Contractor to Foremost pursuant to the transaction governed by this Agreement.
    • Services” means all labour, supervision, management, administration, procurement, packaging, handling, transportation, professional (including without limitation engineering, legal, and accounting), procurement, credit and finance, insurance, services (including without limitation all supplies, tools, equipment and materials incidental thereto and not expressly identified in this Agreement) to be supplied or performed pursuant to the transaction governed by this Agreement.
    • Subcontractor” means any subcontractor, manufacturer, supplier, technical advisor, or other service provider that directly or indirectly supplies products or services to Contractor that are incorporated into the Work.
    • Warranty Period” means:
      1. for Products, twelve (12) months from the date the subject order is entered into Foremost’s inventory system; and
      2. for Services, twelve (12) months from the date of completion and acceptance of the Services by Foremost.
    • Work” means the Products or Services or both supplied pursuant to the transaction governed by this Agreement as more particularly described in the subject purchase order.
  3. Work

Contractor shall perform the Work in accordance with the scheduling, terms and conditions, designs and specifications (as applicable) set out in this Agreement.

  1. Confidential Information
    • Contractor agrees that unless it has received the prior written consent of Foremost, it shall hold all Confidential Information in strict confidence, shall not disclose any Confidential Information to any third party, shall not use any Confidential Information for any purpose other than the performance of the Work and shall take all necessary and appropriate steps to safeguard the Confidential Information from disclosure.
    • The obligation of confidentiality set out in this Section 4 shall not apply to any Confidential Information which is, or becomes, publicly available through no fault of Contractor or any third party under any obligation of confidentiality to Foremost (but only after it is published or becomes part of public domain); has been independently acquired or developed by Contractor without violating any of Contractor’s obligations under this Agreement or any other agreement Contractor may have with any Person; or Contractor can prove was received by Contractor from a third party who did not acquire it directly or indirectly from Foremost under an existing obligation of confidence.
    • All Confidential Information received by Contractor shall be and remain the property of Foremost. Upon the expiry or termination of this Agreement, Contractor shall unless otherwise directed by Foremost, destroy all Confidential Information and delete from all retrieval systems and databases.  The obligation to permanently delete and destroy all Confidential Information shall also extend to any document prepared by Contractor which substantially embodies or contains extracts from the Confidential Information.  Upon request by Foremost, an officer of Contractor shall certify in writing the deletion or destruction of documents contemplated in this Section 4.
  2. Intellectual Property, Work Product, and Foremost Materials
    • Contractor hereby grants Foremost all requisite rights to use, operate, and dispose of the Products to the extent such Products incorporates the intellectual property of Contractor. To the extent any intellectual property is developed during the course of the Work, such intellectual property shall be the exclusive property of Foremost.
    • Contractor shall not use or display Foremost’s name, trademarks, logos or any other of Foremost’s proprietary marks or designations for any purpose or in any medium, or publish or make any announcement in connection with the Work without first obtaining Foremost’s written consent.
    • Contractor will indemnify and hold harmless Foremost against all claims, losses, damages, costs (including without limitation reasonable legal fees), expenses and liabilities suffered or incurred by Foremost as a result of any claim that any Work provided in performance of this Agreement infringes the intellectual property rights of any third party.
    • Foremost does not warrant that its request of Contractor does not infringe third party intellectual property rights.
    • Foremost Materials and all rights in Foremost Materials shall remain the exclusive property of Foremost. Contractor shall keep Foremost Materials in safe custody at its own risk, maintain them in good condition, not dispose or use the same other than in accordance with Foremost’s written instructions or approval and shall return them to Foremost as soon as they are no longer necessary for the manufacture or performance of the Work and at the latest, prior to the Work having been completed in accordance with the purchase order, as applicable.
  3. Representations, Warranties, and Covenants
    • Contractor represents, warrants and covenants to Foremost that:
      1. it is duly organized and validly existing under the laws of its jurisdiction and is authorized to carry on business in all jurisdictions in which the Work is being performed;
      2. it has all the requisite corporate power and authority to execute the Agreement and perform the Work in accordance with this Agreement;
      3. the Work shall comply with all Applicable Laws, comply with the terms of this Agreement, be performed by the proper number of experienced, skilled, registered and licensed personnel, qualified by education and/or experience to perform the Services, conform to the standard of care, skill and diligence exercised by other similar professionals performing the same or similar services, and be in accordance with the best current technological practices, means, methods, procedures and techniques for projects similar to the Work;
      4. it has obtained and shall maintain in good standing during the term of this Agreement at its own cost and expense any and all permits, licenses, and certificates required pursuant to all Applicable Laws or which are expressly required pursuant to this Agreement;
      5. the execution of this Agreement and the performance of the Work contemplated by this Agreement will not violate, nor be in conflict with, any of the constating or governing documents of Contractor or any judgment, decree, order, Applicable Laws or any agreement, instrument, permit or authority to which Contractor is a party or by which Contractor is bound or subject;
      6. it is registered to collect GST if required by Applicable Laws;
      7. it shall at all times comply with environmental, and health and safety related Applicable Laws, and shall, as requested by Foremost from time to time, adhere to Foremost’s standards and to those of Foremost’s customers. Contractor warrants that all the Work provided to Foremost is in compliance with all Applicable Laws.  Contractor shall provide reasonably required assurances in this regard upon request; and
      8. the prices quoted for the Work includes, without limitation, all goods, services, materials, labour, equipment, tools, permits and licenses reasonably required to deliver the Work in accordance with the specifications as described in the subject purchase order, or where no specifications are stipulated, in a customary fashion.
  1. Independence of Contractor
    • Contractor shall manage, control and direct the Work as an independent contractor and shall perform all obligations and duties under this Agreement at its own cost, risk and responsibility, in due compliance with schedules and with provisions of this Agreement; however, Foremost may provide general direction to Contractor with respect to performance of the Work and Contractor agrees to adhere to such directions and to ensure that Contractor representatives adhere to such directions.
    • Contractor shall not represent Foremost or act for or on behalf of Foremost or in Foremost’s name. No personnel of Contractor shall be, or be deemed in any way to be personnel of Foremost.
    • Contractor shall not, at any time, without the prior consent of Foremost, make any public announcements or issue any press release with respect to this Agreement. Contractor shall not use Foremost’s name or logo, in any advertizing or promotional material, written or otherwise, unless authorized in writing by Foremost.
  2. Subcontractors

Contractor shall not subcontract the whole or any part of this Agreement without Foremost’s prior written consent, which may be withheld in Foremost’s sole discretion. No subcontract shall relieve Contractor of any of its duties, obligations or liabilities under this Agreement and Contractor shall be liable for the acts, defaults and omissions of its Subcontractors as fully as if they were the acts, defaults or omissions of Contractor, whether or not such acts, defaults or omissions were known to or authorized by Contractor.  Where Foremost has authorized the use of Subcontractors, Contractor shall provide Foremost with the names and other details reasonably requested by Foremost relating to any such Subcontractors. Foremost shall have the right to deal directly with any Subcontractor, in furtherance of the Work.

  1. Adherence to Prime Contract if Applicable

Where applicable, Contractor shall, and shall ensure that its Subcontractors shall, comply with the requirements of any agreement Foremost may have with its customer relating to or incorporating the Work, provided that Foremost has given notice of such requirements in advance of their application.  Contractor shall and shall cause its Subcontractors to provide reasonable assurances in this regard.

  1. Hazardous Materials

Contractor shall ensure all hazardous materials are handled in accordance with all Applicable Laws.  Contractor shall notify Foremost in advance and in writing if any Products furnished are subject to laws or regulations relating to hazardous or toxic substances and the supply, use or storage of same, or when disposed of, to regulations governing hazardous wastes, or to any other environmental or safety and health regulation.  Contractor shall furnish: all appropriate shipping certification; labeling in compliance with the Workplace Hazardous Materials Information System; Material Safety Data Sheets in compliance with the Workplace Hazardous Materials Information System; and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use by Foremost’s non-technical personnel and sufficiently specific to identify all action which the user must take concerning the material.  Contractor hereby certifies and warrants that  the Products are properly classified, described, packaged, marked and labeled and are in proper condition for transportation according to any applicable environmental and transport regulations.

  1. Delivery, Title and Risk of Loss
    • Unless otherwise agreed in writing, delivery of the Products shall be DAP as per Incoterms® 2010.
    • Unless otherwise agreed in writing title to any Products will pass to Foremost upon the first occurring of:
      1. incorporation of Products into the Work;
      2. any payment by Foremost to Contractor of invoiced amounts pertaining to such Products; and
      3. delivery of Products.
    • Unless otherwise agreed in writing, Contractor shall be responsible for any loss or damage occurring to the Products until risk of loss passes to Foremost. Risk of loss shall pass from Contractor to Foremost DAP as per Incoterms® 2010.
  2. Compliance With Applicable Laws and Regulations Relating to Export and Import
    • Contractor must, on demand, be able to provide documented proof of the origin of Products (origin being as defined in Article 401 of the North American Free Trade Agreement) that are being sold to Foremost. If said proof is requested and Contractor is unable to provide documented evidence supporting the origin of Products, Foremost reserves the right to hold Contractor liable for incurred duties as result of unsubstantiated origin of Products.
    • Contractor represents, warrants and certifies that the sale of the Products and any and all related transactions will not constitute a breach of any law, sanction, rule, regulation, prohibition or restriction imposed by Canada, pursuant to the United Nations Act (Canada), the Special Economic Measures Act (Canada), the Export and Import Permits Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), the Extractive Sector Transparency Measures Act, (Canada), or imposed by the United States Office of Foreign Assets Control, the United States Bureau of Industry and Security, the United States Department of Commerce, the United States Securities and Exchange Commission, or the United States Environmental Protection Agency, or any similar or equivalent law or agency of Canada, the United States or any international ally of Canada or the United States having jurisdiction or effecting Canadian policy with respect to the export of the Products or any lists, directives, rules or regulations issued pursuant thereto.
    • Upon Foremost’s request, Contractor shall disclose to Foremost any Products Contractor provides to Foremost that contain tin, tantalum, tungsten, gold, or other material that may be designated as a conflict mineral (“Conflict Minerals”) by the United States government pursuant to Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulations. Contractor shall have a supply chain policy for Conflicts Minerals and shall undertake:
      1. a reasonable inquiry into the country of origin of the Conflict Minerals incorporated into the Products it provides Foremost;
      2. due diligence of its supply chain, as necessary, to determine:
        1. if the Conflicts Minerals incorporated into the Products it provides are sourced from the Democratic Republic of the Congo or adjoining countries; and if so
        2. whether such Conflict Minerals directly or indirectly support conflict in these countries; and
      3. risk assessment and mitigation actions as may be necessary to implement the reasonable country of origin inquiry and due diligence procedures.

Contractor agrees to provide to Foremost all supporting information and documentation substantially in the format requested by Foremost, including, but not limited to, supply chain data necessary or desirable for Foremost to comply with the regulations set out in this Section 12(c).  Contractor shall include the substance of this Section 12(c) in all subcontracts awarded by Contractor for work under this Agreement.

  1. Audit, Inspection and Acceptance
    • Contractor shall maintain complete and accurate records of, and supporting documentation for, all amounts invoiced to, and payments made by, Foremost under this Agreement. Contractor shall retain such records for a period of the longer of seven (7) years after the date of the applicable invoice or as required by Applicable Law pertaining to such record (the “Audit Period”).  Foremost and any authorized authority applicable to Foremost or its affiliates shall have access to, and the right to make and retain copies of, all such records, upon reasonable prior notice to Contractor during the Audit Period.
    • Foremost shall have the right at any time during the term of this Agreement, during business hours and upon reasonable notice, to inspect Contractor’s manufacturing facility or worksite to the extent same is being used in the performance of the Work for purposes of confirming compliance with Applicable Laws and environmental or health and safety policies of Foremost or of Foremost’s customers to whom the Work is being supplied.
    • Foremost will not be obligated to accept any Work and may reject any Work (or portion thereof) that is not in accordance with the requirements of this Agreement, provided Foremost will not unreasonably withhold or delay acceptance. Any acceptance by Foremost of Work or any portion of the Work (i) shall be in writing, and (ii) shall be without prejudice to Foremost’s rights to enforce Contractor’s warranties hereunder.  Payment shall not constitute acceptance.  Where Foremost accepts the Work based on certain conditions or assurances, Foremost may revoke acceptance in the event the conditions or assurances are not met or realized in a timely manner.
  2. Payment and Financial Matters
    • Schedule “A” – Invoicing Guidelines (if applicable) is attached to and form part of this Agreement.
    • Contractor shall submit invoices and supporting documentation in respect of each invoice to Foremost. Foremost shall verify and approve all invoices prior to payment of same.  If approved, and provided Contractor is not in default, Foremost shall pay Contractor as set out in this Agreement.  Should Foremost not approve the full amount claimed in any invoice, it shall provide Contractor with written notice indicating the amount withheld and the reason for withholding payment.  The Parties shall, in good faith, negotiate and discuss any disputed amount.  Payment for all undisputed invoices shall be made forty-five (45) days following the date the invoice is received by Foremost in accordance herewith,.  Except as otherwise specified herein, such amounts shall be the only compensation to which Contractor is entitled in connection with the Work.
    • The time for payment of invoices or for accepting any discounts, including prompt payment, bulk purchase or volume of purchase discounts, customarily granted by Contractor shall run from the date valid invoices are received by Foremost.
    • Contractor shall not be entitled to receive payment on any invoice received by Foremost more than one hundred eighty (180) days after completion of the Work. Nevertheless Foremost may, at its sole discretion, make payment against any such invoice.
    • If Contractor fails to deliver the Products, or any part thereof, to the location and by the date specified in this Agreement, Foremost may, in addition to any other remedies available to it hereunder, at law or in equity, deduct from the amount otherwise payable to Contractor liquidated damages equal to one-tenth of one per cent (0.1%) per day of the amount payable under this Agreement for the Products for each day of the delay in delivery, up to a maximum of ten per cent (10%) of the total amount payable. The liquidated damages applicable to delays in delivery for partial days shall be determined on a pro rata basis on the basis of twenty-four (24) hours to the nearest hour.  The Parties agree that the amount of liquidated damages which may be deducted by Foremost are reasonable and constitute a genuine pre-estimate of the damages that Foremost will likely suffer in the event Contractor fails to deliver the Products as and when required by this Agreement, and shall not be construed as a penalty. This clause shall not limit Foremost’s right to refuse acceptance (without cancellation or penalty obligations) of Work.
    • Foremost shall have a right to set-off any payment owing to Contractor under this Agreement against amounts owing by Contractor to Foremost or to an affiliate of Foremost, whether under this Agreement or any other agreement between the Parties.
    • Contractor shall be responsible for all goods and services, value added, or other similar taxes, as well as any income tax or franchise tax pursuant to Applicable Laws and all such taxes are included in the price quoted to Foremost. Foremost shall be entitled to pay withholding taxes where required by Applicable Laws.
    • Unless otherwise agreed to in the subject purchase order, all prices shall include, without limitation, all applicable customs duty and taxes, freight, insurance, and packaging in respect of the import, export and delivery, as applicable, of Products to Foremost’s facilities (as per Incoterms® 2010).
    • Unless otherwise agreed to in the subject purchase order, all amounts in this Agreement are expressed and shall be payable in Canadian dollars.
    • Without limitation to any lien rights Foremost may have at law, including pursuant to any act, regulation or rule, Foremost shall have the right to satisfy itself of Contractor’s creditworthiness, and Contractor shall diligently cooperate with all reasonable requests for information in support of due diligence in that regard. Contractor agrees to provide the security specified in the schedules hereto (if any).   If such due diligence is yet to be undertaken, or ongoing at the time Foremost and Contractor execute this Agreement, or at any time Foremost has reason to believe that Contractor’s creditworthiness has changed, Foremost reserves the right to require security for the performance of Contractor’s obligations hereunder, in such manner and form as Foremost determines in its sole discretion. Without limiting the foregoing, Foremost is hereby granted a security interest securing Contractor’s performance of its obligations under this Agreement in respect of any goods, inventory and equipment Contractor purchases for incorporation into the Products or is otherwise required for the performance of the Work. Where Contractor has received payment, directly or indirectly attributable to the Work, the security interest provided in this Agreement shall be considered a Purchase Money Security Interest to the fullest extent permitted by law.  To the extent payments received by the Contractor are not allocated to the Work, such funds shall be held in trust by the Contractor until such time as allocated.  All payments shall be allocated first to goods and materials, then to labour.
    • Foremost shall be entitled to holdback such amounts as are prescribed pursuant to the applicable builders’, mechanics’ or construction lien legislation, or any equivalent for the applicable period, if any.
    • Payment by Foremost shall not constitute acceptance of the Work or acknowledgement of any milestone if applicable, and shall be without prejudice to Foremost’s rights to dispute any invoice or the sufficiency of any Work, and shall not effect merger of or otherwise void Contractor’s warranties in respect of the Work.
    • Contractor shall have no lien, shall not encumber liens or attach and expressly waives any claim of lien or encumbrance or other right in rem in respect of any Products or any project site, equipment, production or facility into which the Work is incorporated or supplied. Contractor shall not permit any lien attachment or encumbrance or other right in rem to be filed or claimed by any of its Subcontractors, shall defend and save Foremost harmless from any lien attachment or encumbrance so claimed by any of its Subcontractors including without limitation all costs of removing or defending against such claim.
  3. Termination
    • Foremost shall have the right to terminate this Agreement immediately without further liability against Foremost hereunder and without prejudice to any other right or remedy Foremost may have, if Contractor at any time during the term of this Agreement:
      1. commits an act of bankruptcy or is adjudged bankrupt or makes a general assignment or arrangement for the benefit of, or protection from, creditors, or if a receiver is appointed over all or a material portion of the business and assets of Contractor, or if Contractor is insolvent;
      2. breaches any representation, warranty or covenant given by Contractor in this Agreement and fails to remedy same within seven (7) days after receipt of written notice from Foremost;
      3. defaults in the performance of the Work or any obligation under this Agreement and fails to remedy same within seven (7) days after receipt of written notice from Foremost;
      4. assigns this Agreement or subcontracts any of the Work without prior consent of Foremost as provided in this Agreement;
      5. commits any fraudulent, dishonest or misleading act, or commits any act or omission that would, in the sole discretion of Foremost, make it illegal or unsuitable for Contractor to continue to perform its obligations hereunder; or
      6. commits any act or omission, or adopts any policy which, in Foremost’s reasonable opinion, has the potential to damage Foremost’s reputation or goodwill.
    • Without prejudice to any other rights or remedies it may have hereunder, at law or in equity, Foremost may terminate this Agreement (including any purchase order governed by or constituting this Agreement) without cause upon giving Contractor written notice, together with written notification of the Work Contractor is required to complete during such notice period, if any. In such event, Foremost shall pay Contractor all unpaid amounts due to Contractor based on the percentage of the Work completed prior to termination and any additional amount due to Contractor in respect to the Work Foremost requires to be completed as specified in the notice of termination (if any).  Contractor shall not be entitled to any further payment or compensation arising from or connected with the early termination of this Agreement.
    • Upon receipt of a notice of termination, Contractor will, as instructed by Foremost:
      1. discontinue the supply of Work or such part thereof as may be specified in the notice;
      2. deliver to Foremost all tangible Products completed in whole and in part prior to the effective date of termination;
      3. allow Foremost or its nominee full rights of access to remove and/or take over the Work completed in whole and/or in part prior to the effective date of termination; and
      4. to the extent desired by Foremost assign and transfer to Foremost or its nominee all or the relevant part of the rights, titles, obligations and subcontracts which Contractor may have acquired or entered into and to otherwise promptly terminate all outstanding subcontracts and relevant third party agreements in relation to the Work.
    • Contractor may not terminate this Agreement except where a Contractor invoice remains past due after forty-five (45) days provided that Contractor has first given Foremost seven (7) days written notice of such termination, and Foremost has not disputed such invoice in good faith, and Foremost fails to pay such invoice within such notice.
    • Upon termination of this Agreement in accordance with this Section 15, Contractor agrees that any deposit or milestone payment provided by Foremost to Contractor shall be returned to Foremost for any Work that has not been delivered or performed (as applicable) by Contractor on a percent completion basis.
  4. Changes

Foremost may at any time and from time to time change the scope of the Work by issuing a change order or a revised purchase order, as the case may be (a “Revised Purchase Order”).  Contractor shall have ten (10) business days to notify Foremost of any resulting equitable variation to price or scheduling (a “Variation”) and failing which notification, the Revised Purchase Order shall be deemed to have been accepted in full and without further Variation. No Variation shall be valid or binding, and no related Work shall be undertaken unless expressly approved by Foremost in writing provided that where Contractor and Foremost are negotiating a Variation, Foremost may authorize Contractor to proceed with the Work as modified by the Revised Purchase Order, or any other related Work, pending agreement as to such Variation.

  1. Suspensions and Delays
    • Foremost may at any time, by written notice to Contractor, suspend further performance of all or any portion of this Agreement by Contractor. Section 15(b) shall apply, mutatis mutandis, for any suspension or delay exceeding more than one hundred eighty (180) consecutive days or two hundred forty (240) days in aggregate.  Upon receiving such notice of suspension, Contractor shall promptly suspend further performance of this Agreement to the extent specified, and during the period of such suspension shall properly care for and protect all goods, materials, supplies and equipment Contractor has on hand for performance of this Agreement.  Contractor shall use its best efforts to utilize material, labour and equipment in such a manner as to mitigate costs associated with suspension.  Foremost may at any time withdraw the suspension as to all or part of the suspended performance by written notice to Contractor specifying the effective date and the scope of withdrawal and Contractor shall, on the specified date of withdrawal, resume diligent supply of the Work for which the suspension is withdrawn.  No suspension or delay shall constitute a Variation or Revised Purchase Order or change to the scope of Work unless specified by Foremost.
    • Contractor may not suspend or delay Work except in accordance herewith except where a Contractor invoice remains past due after forty-five (45) days provided that Contractor has given Foremost seven (7) days written notice and Foremost has not disputed in good faith its obligation to pay such invoice, and Foremost fails to pay such invoice within such notice period.
  2. Work Warranty
    • Contractor warrants that all Products shall be supplied free of liens and free of any other defect in title.
    • For the Warranty Period, Contractor warrants to Foremost that the Work shall be constructed and performed in accordance with, and shall conform in all material respects with the requirements, design and specification (if any), of this Agreement and all Applicable Laws, shall be free of any defect, fault or deficiency (latent or otherwise), including without limitation in materials, engineering and construction or workmanship and shall be fit for purpose.
    • Contractor shall immediately advise Foremost in writing of any defects or deficiencies in the Work that it discovers.
    • Upon receipt of Foremost’s written notice of defects or deficiencies in any of the Work during the Warranty Period, Contractor at its sole expense, cost and risk shall, at Foremost’s direction, acting reasonably, rework, repair and replace the affected Work so as to correct or remedy such defects and deficiencies. Such rework shall be performed at a time and within the period requested by Foremost, acting reasonably, having regard to the urgency of the circumstances and in such a manner so as to cause a minimum of interruption in the use of the Work and a minimum of disruption to Foremost’s business and operations.
    • If Contractor fails to diligently and satisfactorily carry out any rework, repairs or replacements required by this Section 18, Foremost shall have the right to have such rework performed by Foremost or a third party. Such recourse shall in no way relieve Contractor from its warranty obligations under this Agreement, and the costs of such rework shall be charged to Contractor, but rework performed by others shall not be subject to Contractor’s warranty obligations.
    • Contractor warrants all rework, including without limitation repairs or replacements, if any, performed under its warranty obligations as of the date of Foremost’s acceptance of such rework and for a period of the same duration as that of the Warranty Period. Such Warranty Period for rework shall take effect as of Foremost’s acceptance of such rework, including without limitation testing of all rework, and the Warranty Period generally shall be extended by any period or periods during which operations or use of the Work or any portion of the Work is ceased to allow such required repairs, replacements or rework to be performed.
    • Contractor hereby expressly extends the warranties provided for herein to Foremost’s end customers to whom the Work is provided through Foremost, each of which shall be considered a third party beneficiary hereunder, provided that this clause shall in no way extend the Warranty Period.
    • Contractor warrants that the Work will not infringe any intellectual property rights and hereby indemnifies Foremost against any third party claims of intellectual property infringement in respect of the Work and the costs of defending any such claims.
  3. Limitation of Liability

Contractor shall indemnify, defend and hold harmless Foremost, its directors, officers, employees, third party contractors, and agents from and against all losses, expenses, demands, claims, actions, damages, liabilities, costs, penalties, fines, awards including without limitation legal expenses (on a solicitor-and-his-own-client basis), and also including without limitation environmental damage, arising from any default of Contractor under this Agreement, or any negligent act or omission by Contractor related to this Agreement.

  1. Insurance
    • Contractor shall, without limiting its obligations or liabilities as stated elsewhere in this Agreement, have in place and continuously maintain at its own expense and cost, the following insurance coverage:
      1. Workers’ Compensation (if applicable) or the equivalent coverage in accordance with the statutory requirements of the Province, Territory or jurisdiction in which the Work is performed;
      2. Commercial General Liability insurance covering bodily injury (including without limitation death) and property damage in an amount not less than five million dollars ($5,000,000) inclusive per occurrence and shall name Foremost and its subsidiaries as additional insureds with respect to liability, and as a loss payee with respect to property damage, arising out of the operations of Contractor in performing this Agreement and shall provide that the insurer shall waive any right of subrogation against Foremost;
      3. Automobile Liability insurance (if applicable) in an amount not less than two million dollars ($2,000,000) inclusive per occurrence;
      4. Professional Liability insurance (if applicable) covering errors, omissions and negligent acts in the performance of, or failure to perform, the Work, for the limits advised by Foremost;
      5. Cargo insurance (if applicable) covering the replacement value of the Products in transit by land, water, or air; and
      6. where applicable, property insurance with limits sufficient to cover the full replacement cost value of all property of Contractor while on the premises of Foremost, which shall include, without limitation, a waiver of subrogation against Foremost.
    • Prior to the performance of the Work and upon request by Foremost during the performance of the Work, Contractor shall provide to Foremost a certificate of insurance in respect of the required insurance coverage (or a certified copy of the entire policy or policies, if so requested), and a clearance certificate or similar instrument of the relevant Worker’s Compensation authority or authorities.
    • Without limitation of its obligations and its responsibilities Contractor shall maintain and shall ensure its Subcontractors maintain, for the duration of this Agreement all insurances required by law in connection with this Agreement.
    • To the maximum extent permitted by Applicable Law, all insurances required under this Section 20 will be endorsed to provide that underwriters waive any rights of recourse, including in particular subrogation rights against Foremost in relation to this Agreement to the extent of the liabilities and obligations of Contractor under Section 19 of this Agreement.
    • The provisions of this Section 20 will in no way limit the liability of Contractor under this Agreement.
  2. Limitations Periods

The two (2) year period for seeking remedial order under section 3.1(a) of the Limitations Act, R.S.A. 2000 c. L-12, as amended, for any Claim (as defined in the Act) arising out of this Agreement is extended to:

  • for claims disclosed by audit, two (2) years after the time this Agreement permitted that audit to be performed; and
  • for all other Claims, four (4) years.
  1. Assignment

Foremost shall have the right to freely assign, charge, transfer or declare any trust over this Agreement or any part thereof or any right, benefit or interest arising thereunder.  Foremost shall provide notice to Contractor at such time as Foremost deems appropriate.  Contractor shall not assign this Agreement, nor transfer any part of it, nor any benefit, interest, right or obligation therein nor payment due hereunder without the prior written approval of Foremost, which approval may not be unreasonably withheld by Foremost. Except as expressly stated herein the Parties intend that no provision of this Agreement shall confer any benefit, nor be enforceable by any person who is not expressly a Party to this Agreement.

  1. Rights and Remedies Cumulative

The rights and remedies under this Agreement are cumulative and in addition to any and all other rights or remedies provided at law, at equity or otherwise available under this Agreement.

  1. Severability

If any term, condition or provision of this agreement is determined to be illegal, void or unenforceable, that provision will be severed from this Agreement to the extent required and this Agreement shall thereafter be construed, and if required, the Parties shall negotiate in good faith to amend the contract, so as to put the Parties in the same position economically as they would have been if such severed clause was in force.

  1. Gratuities

Contractor shall not offer or give any officer, director, employee, agent or other representative of Foremost or any Foremost’s Affiliate any gratuity (in the form of entertainment, gifts or otherwise), with a view toward securing this Agreement or securing favourable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of this Agreement.  Foremost shall be entitled, by written notice to Contractor, to terminate the right of Contractor to proceed or continue under this Agreement for any failure by Contractor to abide by the provisions of this Section 25.

  1. Force Majeure

Neither Party shall be considered to be in default in the performance of its obligations to the extent it proves such performance has been prevented by an event of Force Majeure, and any such obligations shall be suspended for as long as an event of Force Majeure is in effect.  “Force Majeure”  means an occurrence beyond the reasonable control of the Party claiming suspension of an obligation hereunder, which has not been caused by such Party’s negligence and which such Party was unable to prevent or provide against by the exercise of reasonable diligence and includes, without limiting the generality of the foregoing, an act of God, war, revolution, insurrection, blockage, riot, strike, a lockout or other industrial disturbance, fire, lightning, unusually severe weather, storms, floods, disruption of public traffic or data communications, explosion, accident, shortage of labour or materials, arrests and restraints, and civil disturbances.  Notwithstanding the foregoing, either party may terminate this Agreement without further liability or remedy where an event of Force Majeure extends for more than 90 days provided that upon such termination by Contractor, Foremost shall be entitled to all Work performed up to the date of the event of Force Majeure.

  1. Time

Time shall be of the essence.

  1. Governing Law

This Agreement shall be governed by and interpreted pursuant to the laws of the Province of Alberta and the federal laws of Canada as applicable therein, without regard to its rules on conflict of laws.  The Parties hereby agree that any dispute, action or proceeding hereunder shall be brought in the courts of the Province of Alberta and the Parties consent and submit to the jurisdiction of the courts of the Province of Alberta.  For greater certainty, the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

  1. Amendments

This Agreement may not be amended except by a written agreement duly executed by an authorized representative of Foremost.  No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the Party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived.

  1. Interpretation

This Agreement shall be construed and interpreted in the English language only.  The parties confirm that it is their express wish and intention that this Agreement, as well as any other documents relating to this Agreement, including notices, appendices, orders, confirmations, quotations, schedules and authorizations (“Agreement Documents”), have been and shall be drawn up in the English language only.  To the extent that any Agreement Documents are translated into or otherwise proposed in any other language, the English language version shall prevail to the extent of any of any conflict, discrepancy, inconsistency, ambiguity or difference of any kind between the English language version and any such translated version.  Any such translated version shall not be considered evidence of any intention or interpretation whatsoever.

  1. Notices

Notice under this Agreement shall be considered effectively served if served in writing, communicated between the representatives of each Party that are responsible for the subject purchase order, and in the case of any contested issue, with copy to if by email, (403) 295-5810 if by fax, and to 1225, 64th Ave. N.E., Calgary AB, T2E 8P9, if by regular mail, in each case attn: legal services.  Electronic communications shall be deemed received at the end of the business day on which they were sent.  Regular mail communications will be deemed received only upon actual receipt by Foremost.





  1. Invoicing
    • Unless otherwise agreed, payment shall be made to Contractor as set out in the main body of the Agreement.
    • To the extent Contractor is a fixed fee, payment shall be made to Contractor as set out in the main body of the Agreement.
    • Foremost shall not be obligated to remit any amounts in respect of taxes to Contractor unless Contractor is registered with the applicable taxation authorities and provides its registration number on all invoices.
    • Invoices must, in addition to any other information requested by Foremost, at a minimum, include the following information:
      1. Purchase order number issued by Foremost;
      2. Delivery term as per Incoterms® 2010;
      3. Description of Work performed during the applicable payment period and, where applicable, the names of individuals performing the Work;
      4. Description of Tariff codes, ECCN numbers and Harmonized Commodity Description and Coding System codes for the Products provided as required by Foremost;
      5. Fees for Work and total amount of invoice with GST itemized;
      6. Complete and accurate receipts, and time records, where required, to verify compliance with the terms of this Agreement; and
      7. GST registration number.


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