General Conditions of Service

“The Company” is the legal entity with whom the Client is providing instructions.

AGREEMENT

1.  Initiation of Services:  To initiate services, please complete and return this Agreement.  All parties agree that any services performed by BUREAU VERITAS prior to the CLIENT executing this Agreement shall be governed by this Agreement.  No subsequent amendment to this Agreement shall be binding on either BUREAU VERITAS or CLIENT unless reduced to writing and signed by an authorized Representative of BUREAU VERITAS and CLIENT.  Any pre-printed forms including, but not limited to: purchase orders, shipping instructions, or sales acknowledgment forms of either party containing terms or conditions at variance with or in addition to those set forth herein shall not in any event be deemed to modify or vary the terms of this Services Agreement.  In the event of a conflict between the terms and conditions set out in this Agreement and the Proposal, the terms of the Proposal shall govern.

All amounts in the proposal, invoice and other documents shall be in the currency identified in the Proposal, if no currency is listed then all amounts shall be in United States Dollars. 

2.  Scope of Services:   BUREAU VERITAS shall provide its services at the time, place, and in the manner specified in the Proposal.

3.  Time of Performance:  The Services of BUREAU VERITAS are to commence upon execution of this Agreement and shall continue until all authorized work is completed.  BUREAU VERITAS shall use commercially reasonable best efforts in performing Services under the terms and conditions of this Agreement, and any Companion Documents.  “Companion Documents” shall mean any documents accompanying BUREAU VERITAS’s Proposal, including but not limited to the Scope of Work, Fee Schedules or any other Exhibits specific to the project.  BUREAU VERITAS shall not be responsible for failure to perform its Services if i) there is a failure or delay by CLIENT or its contractors in providing BUREAU VERITAS with the necessary access to properties, documentation, information, or materials; ii) CLIENT or its contractors fail to approve or disapprove BUREAU VERITAS’s work; or iii) if CLIENT causes delays in any way whatsoever.  In any of these events, BUREAU VERITAS’s time for completion of its service shall be extended accordingly.

4.  Site Conditions:  It is understood and agreed that (i) BUREAU VERITAS is not, and has no responsibility as an owner, handler, generator, operator, treater, storer, arranger, transporter or disposer of hazardous or toxic substances found or identified at the Site; and (ii) CLIENT shall undertake to arrange for the handling, removal, treatment, storage, transportation, and disposal of hazardous substances or constituents found or identified at the Site. CLIENT understands and acknowledges that (i) CLIENT may be requesting BUREAU VERITAS to undertake services or work for the benefit of CLIENT involving the presence or potential presence of hazardous substances; and (ii) BUREAU VERITAS may be exposed to claims arising out of, or involving actual, alleged, or threatened discharge, disposal or release or escape of hazardous or potentially hazardous pollutants, including, but not limited to, solid, liquid, gaseous or thermal irritants or contaminants including smoke, water, vapor, soot, fumes, acids, alkalies, chemicals, wastes, and waste materials, and CLIENT understands and agrees that BUREAU VERITAS shall only be responsible for losses which directly result from BUREAU VERITAS’s negligence. CLIENT will grant to, or obtain for, BUREAU VERITAS unimpeded access to the Project site for all equipment and personnel necessary for the performance of the Services. As required to effectuate such access, CLIENT will notify all owners, lessees, contractors, subcontractors, and other possessors of the Project site that BUREAU VERITAS must be allowed free access to the site. 

5.  Compensation:  Compensation to be paid to BUREAU VERITAS shall be in accordance with the Schedule of Fees set forth in the Proposal.  BUREAU VERITAS’s employees shall not be retained as expert witnesses except by separate written agreement.

6.  Method of Payment:  BUREAU VERITAS shall submit monthly billings to CLIENT describing the work performed during the preceding month.  CLIENT shall pay BUREAU VERITAS no later than thirty (30) days after receipt of the monthly invoice by CLIENT’s staff.  An invoice for required payment pursuant to the Proposal for any mobilization and/or initiation costs will be issued immediately upon acceptance of the Proposal.  If the invoice is not paid within such period, CLIENT shall be liable to BUREAU VERITAS for a late charge accruing from the date of such invoice to the date of payment at the lower of eighteen (18) percent per annum or the maximum rate allowed by law.  Further, if the invoice is not paid within such period, BUREAU VERITAS may, at any time, and without waiving any other rights or claims against CLIENT and without thereby incurring any liability to CLIENT, elect to terminate performance of Services immediately following written notice from BUREAU VERITAS to CLIENT.  Notwithstanding any such termination of Services, CLIENT shall pay BUREAU VERITAS for all services rendered by BUREAU VERITAS up to the date of termination of Services plus all interest, termination costs and expenses incurred by BUREAU VERITAS.  CLIENT shall reimburse BUREAU VERITAS for all costs and expenses of collection, including reasonable attorney’s fees. 

7.  Ownership of Documents:  All plans, studies, documents and other writings prepared by BUREAU VERITAS, its officers, employees and agents and subcontractors for the CLIENT in the course of providing the services contemplated by this Agreement shall upon final payment pursuant to Section 6 above become the property of CLIENT. The CLIENT acknowledges that all intellectual property rights related to the performance of the Agreement, including but not limited to the names, service marks, trademarks, inventions, logos and copyrights of BUREAU VERITAS and its affiliates, (collectively, the “Rights”) are and shall remain the sole property of BUREAU VERITAS or its affiliates and shall not be used by the CLIENT, except solely to the extent that the CLIENT obtains the prior written approval of BUREAU VERITAS and then only in the manner prescribed by BUREAU VERITAS.  If BUREAU VERITAS terminates the Agreement in accordance with the provisions herein, any such license granted by BUREAU VERITAS to the CLIENT shall automatically terminate. 

8.  Use of Data or Services:  BUREAU VERITAS shall not be responsible for any loss, liability, damage, expense or cost arising from any use of BUREAU VERITAS’s analyses, reports, certifications, advice or reliance upon BUREAU VERITAS’s services, which is contrary to, or inconsistent with, or beyond the provisions and purposes set forth therein or included in these Terms and Conditions, or in the Companion Documents.  CLIENT understands and agrees that BUREAU VERITAS’s analyses, reports, certifications and services shall be used solely by the CLIENT, and only CLIENT is allowed to rely on such work product.  If a third party relies on the services, analyses, reports or certifications without BUREAU VERITAS’s written permission, then CLIENT agrees to defend and indemnify BUREAU VERITAS from any claims or actions that are brought as a result of such reliance.

9.  Independent Contractor:  It is understood that BUREAU VERITAS, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the CLIENT.  BUREAU VERITAS shall obtain no rights to retirement benefits or other benefits which accrue to CLIENT’s employees, and BUREAU VERITAS hereby expressly waives any claim it may have to any such rights.

10.  Standard of Care:  BUREAU VERITAS REPRESENTS THAT THE SERVICES, FINDINGS, RECOMMENDATIONS AND/OR ADVICE PROVIDED TO CLIENT WILL BE PREPARED, PERFORMED, AND RENDERED IN ACCORDANCE WITH PROCEDURES, PROTOCOLS AND PRACTICES ORDINARILY EXERCISED BY PROFESSIONALS IN BUREAU VERITAS’S PROFESSION FOR USE IN SIMILAR ASSIGNMENTS AND PREPARED UNDER SIMILAR CONDITIONS AT THE SAME TIME AND LOCALITY.  CLIENT ACKNOWLEDGES AND AGREES THAT BUREAU VERITAS HAS MADE NO OTHER IMPLIED OR EXPRESSED REPRESENTATION, WARRANTY OR CONDITION WITH RESPECT TO THE SERVICES, FINDINGS, RECOMMENDATIONS OR ADVICE TO BE PROVIDED BY BUREAU VERITAS PURSUANT TO THIS AGREEMENT.

11.  Indemnity:  Subject to the Limitation of Liability included in this Agreement, BUREAU VERITAS shall indemnify and hold harmless CLIENT from and against losses, liabilities, and reasonable costs and expenses (for property damage and bodily injury, including reasonable attorney’s fees), to the extent directly and proximately arising from BUREAU VERITAS’s negligent performance of services or material breach under this Agreement.  BUREAU VERITAS shall not be obligated to defend the CLIENT until there is an actual finding of negligence or if the parties agree otherwise.  CLIENT shall defend, indemnify and hold harmless BUREAU VERITAS, its employees, directors, officers, and agents, from and against claims, losses, liabilities, and reasonable costs and expenses (including reasonable attorney’s fees) that are:  i) related to, or caused by the negligence or willful misconduct of CLIENT, its employees, or agents; ii) related to this Agreement or the work to be performed by BUREAU VERITAS for which BUREAU VERITAS is not expressly responsible; or iii) the expressed responsibility of the CLIENT under this Agreement.

12.  Limitation of Liability:  To the fullest extent permitted by law and notwithstanding anything else in this Agreement to the contrary, the total aggregate liability of BUREAU VERITAS, its affiliates, employees, officers, directors and agents (Collectively referred to in this paragraph as “BUREAU VERITAS”) for all claims for negligent professional acts, errors or omissions arising out of this Agreement is limited to $50,000 or the amount of the total fees hereunder, whichever is greater. 

13.  Insurance:  BUREAU VERITAS, at BUREAU VERITAS’s own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies with insurers:

            a.         Workers’ Compensation Coverage: BUREAU VERITAS shall maintain Workers’ Compensation and Employer’s Liability Insurance for its employees in accordance with the laws of the state or the province where the Services are being performed.  Any notice of cancellation or non-renewal of all Workers’ Compensation policies will be sent to the CLIENT in accordance with the policy provisions.

            b.         General Liability Coverage: BUREAU VERITAS shall maintain Commercial General Liability insurance in an amount not less than one million dollars United States Dollars ($1,000,000 USD) per occurrence and two million United States Dollars ($2,000,000 USD) in the aggregate for bodily injury, personal injury and property damage. 

            c.         Automobile Liability Coverage: BUREAU VERITAS shall maintain Automobile Liability insurance covering bodily injury and property damage for activities of BUREAU VERITAS employee arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount not less than one million United States dollars ($1,000,000 USD) combined single limit for each occurrence.

            d.         Professional Liability Coverage: BUREAU VERITAS shall maintain Professional Errors and Omissions Liability for protection against claims alleging negligent acts, errors or omissions which may arise from BUREAU VERITAS’s services under this Agreement.  The amount of this insurance shall not be less than one million United States dollars ($1,000,000 USD) on a claims-made annual aggregate basis.

BUREAU VERITAS shall name CLIENT as additional insured and other parties that it deems appropriate to be additionally insured under BUREAU VERITAS’s Commercial General Liability policy and Automobile Liability policy.  The CLIENT, on its own behalf and on the behalf of any others that are named as additionally insured at CLIENT’s request, agrees that providing such insurance or the additional insured endorsement shall in no way be construed as an assumption by BUREAU VERITAS of any liability for the negligence or willful misconduct or any wrongful behavior on the part of CLIENT or others that are named additionally insured.

14.  Consequential and Punitive Damages:  Neither BUREAU VERITAS nor CLIENT shall be liable under any circumstances for loss of profits, loss of product, consequential damages of any kind, indirect damages of any kind or special damages of any kind to the other party, or to any third party.  No punitive or exemplary damages of any kind shall be recoverable against either party under any circumstances.

15.  Cause of Action:  Any cause of action brought under this Agreement shall be brought within one (1) year of the work or services performed under this Agreement.

16.  Compliance with Laws:  BUREAU VERITAS shall use the standard of care in its profession to comply with all applicable federal, state, provincial and local laws, codes, ordinance and regulations in effect as of the date services are provided under this Agreement.

17.  Resolution of Disputes:  All claims, disputes, controversies or matters in question arising out of, or relating to, this Agreement or any breach thereof, including but not limited to disputes arising out of alleged design defects, breaches of contract, errors, omissions, or acts of professional negligence, except those disputes which arise out of or are related to collection matters or fees alone under this Agreement,  (collectively “Disputes”) shall be submitted to mediation before and as a condition precedent to pursuing any other remedy.  Upon written request by either party to this Agreement for mediation of any dispute, CLIENT and BUREAU VERITAS shall select a neutral mediator by mutual agreement.  Such selection shall be made within ten (10) calendar days of the date of receipt by the other party of the written request for mediation.  In the event of failure to reach such agreement or in any instance when the selected mediator is unable or unwilling to serve and a replacement mediator cannot be agreed upon by CLIENT and BUREAU VERITAS within ten (10) calendar days, a mediator shall be chosen as specified in the Mediation Rules of the International Centre for Dispute Resolution then in effect, or any other appropriate rules upon which the parties may agree.

Should either party to this Agreement commence any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorney’s fees.

18.  Governing Law:  This Agreement shall be governed by and construed in accordance with the laws of as defined in the Proposal, if no law is provided then this Agreement will be governed by the laws of the State of New York, United States of America. 

19.  Releases:  All lien releases will be limited to payment issues; no additional terms and conditions may be added to a release of lien. 

20.  Waiver of Jury Trial:  Each party waives its right to a jury trial in any court action arising between the parties, whether under this Agreement or otherwise related to the work being performed under this Agreement.

21.  Third Party Beneficiary:  It is expressly understood and agreed that the enforcement of this Agreement shall be reserved to the CLIENT and BUREAU VERITAS.  Nothing contained in the Agreement shall give or allow any claim or right of action whatsoever by any third person.  It is the express intent of the CLIENT and BUREAU VERITAS that any such person or entity, other then CLIENT or BUREAU VERITAS, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary.

22.  Written Notification:  Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent prepaid, first class mail.  Any such notice, demand, etc., shall be addressed to the other party at the address set forth in the Proposal.  Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.

23.  Confidential Information:  Neither party shall disclose information identified as confidential to anyone except those individuals who need such information to perform the Services; nor should either party use such confidential information, except in connection with the Work, the performance of the Services or as authorized by the other party in writing.  Regardless of the term of this Agreement, each party shall be bound by this obligation until such time as the confidential information shall become part of the public domain (unless it is a result of a breach of that party’s obligation under this section).  Confidential information shall not include information which is either:  (i) known to the public; (ii) was known to the receiving party prior to its disclosure; or (iii) received in good faith from a third party.   If either party is required to produce information by valid subpoena or Court order, parties agree to, to the extent permitted by law or applicable order, first provide prompt notice to other party in order to allow the party to seek a protective order or other appropriate remedy.  This shall not prevent either party from disclosing information to the extent reasonably necessary to substantiate a claim or defense in any adjudicatory proceeding.  CLIENT agrees that BUREAU VERITAS shall be permitted to use CLIENT’s name and logos in BUREAU VERITAS’s marketing materials unless advised or prohibited against it by the CLIENT in writing. The technical and pricing information contained in any proposal or other documents submitted to CLIENT by BUREAU VERITAS is to be considered confidential and proprietary and shall not be released or disclosed to a third party without BUREAU VERITAS’s written consent.

24.  Assignment:  Neither party may assign this Agreement or any right or obligation hereunder without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be necessary in the event of an assignment to a successor entity resulting from a merger, amalgamation, acquisition or consolidation by either party or an assignment to an Affiliate of either party if such successor or Affiliate assumes all obligations under this Agreement.  Any attempted assignment, which requires consent hereunder, shall be void and shall constitute a material breach of this Agreement if such consent is not obtained.

25. Samples:  All waste material, including samples which are not hazardous based on the analysis performed, resulting from or associated with the Work which requires disposal, shall be disposed of by BUREAU VERITAS, its employees, agents and subcontractors in accordance with all applicable laws, orders, rules and regulations in effect within where the Work is performed and at unit prices defined in BUREAU VERITAS price schedule.  In the event that waste and contaminated material, including samples, is determined to be hazardous (based on the analysis performed by BUREAU VERITAS), BUREAU VERITAS shall return this material to either CLIENT at CLIENT’s expense, or if CLIENT requests BUREAU VERITAS to dispose of the hazardous material, it shall be at the actual cost plus BUREAU VERITAS’s handling and administration fee or the disposal cost as set out in the standard terms schedule, as the case may be.

BUREAU VERITAS will retain samples for a minimum of 30 days from completion of analysis for no additional cost or as defined in the Proposal.  Longer storage periods are available upon request, but additional charges may apply.  BUREAU VERITAS reserves the right to return unused portions of samples to the CLIENT, at the CLIENT’s expense.

BUREAU VERITAS reserves the right to analyze customer samples without consent as part of QA/QC procedures.

BUREAU VERITAS assumes no responsibility for samples or sampling supplies that are lost or delayed as a result of independent third party couriers.

If required, Chain of Custody and/or Submittal forms (“COC”) will be provided and must accompany samples to document the transfer of samples from the field to the laboratory.  Complete instructions as to analysis and reporting requirements are to be included.  A signed COC provides authorization from the CLIENT to BUREAU VERITAS to proceed with the testing under this Agreement.  Failure to sign the COC may result in delays of turnaround time or processing samples, or refusal to accept samples.

26.  Force Majeure.  A delay in, or failure of, performance of either party hereto shall not constitute a default hereunder or give rise to any claim for damage if and to the extent such delay or failure is caused by (an) occurrence(s) beyond the reasonable control of the party affected, including, but not limited to, act(s) of God, or the public enemy, expropriation or confiscation of facilities or compliance with any order or request of governmental authority or person(s) purporting to act therefor affecting (to a degree not presently existing) the supply, availability, or use of engineering personnel or equipment, act(s) of war, public disorder(s), insurrection(s), rebellion(s), or sabotage, flood(s), riot(s), strike(s), or any cause(s), whether or not of the class or kind of those specifically named above, not within the reasonable control of the party affected, and which, by the exercise of reasonable diligence, said party is unable to prevent.  A party who is prevented from performing for any reason shall immediately notify the other party in writing of the cause of such non-performance and the anticipated extent of the delay. 

27.  Written Notification.  Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent prepaid, first class mail.  Any such notice, demand, etc., shall be addressed to the other party at the address set forth herein below.  Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.

                        If to CLIENT:                             _______________________

                                                                        _______________________

                                                                        _______________________

                        If to BUREAU VERITAS:            <BUREAU VERITAS  NAME IN THE PROPOSAL>

                                                                        Attention:_______________________                                                                                                      9050 Shaughnessy St, Vancouver, BC V6P 6E5

                        With cc to:                                 Bureau Veritas

                                                                        Attention: Legal Department

                                                                        1601 Sawgrass Corporate Parkway, Suite 400

                                                                        Fort Lauderdale, FL  33323

28.  Waiver:  No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder.

29.  Termination:

            a. Termination for Convenience.  Either party may terminate the Services under this Agreement other than by reason of default, at any time, by sending written notice pursuant to the terms of the Proposal or if the Proposal is silent with four (4) months advance notice of the termination date.  Upon such termination, CLIENT shall pay BUREAU VERITAS for the Services performed to and including the date of termination and other costs and expenses pursuant to the Proposal. In addition, CLIENT shall pay BUREAU VERITAS for any materials, supplies or equipment which are in transit or under commitment; all other fees and expenses BUREAU VERITAS incurs because of the termination; and a termination charge which, in the absence of agreement to the contrary, shall be ten percent (10%) of the amount which would be required to compensate BUREAU VERITAS for completing the Services.

             b. Termination for Cause.  BUREAU VERITAS may suspend or terminate the Services under this Agreement for cause upon thirty (30) days written notice to CLIENT in the event CLIENT fails to substantially perform CLIENT’s obligations under this Agreement.  Such failure by CLIENT shall include, but is not limited to, the failure to make payments to BUREAU VERITAS in accordance with the requirements of this Agreement.  CLIENT may suspend or terminate the Services under this Agreement for cause upon thirty (30) days written notice to BUREAU VERITAS in the event BUREAU VERITAS fails to substantially perform BUREAU VERITAS’s obligations under this Agreement.  Such failure shall include, but is not limited to, BUREAU VERITAS’s failure to perform the Services under this Agreement in accordance with the standard of care set forth in this Agreement.  Upon receipt of written notice, the receiving party shall have thirty (30) days to cure the failure.  In the event either party terminates this Agreement for cause and it is later determined or agreed that the non-terminating party had not failed to substantially perform its obligations under the Agreement, the termination shall be treated as a termination for convenience.

            c. Termination by BUREAU VERITAS.  If BUREAU VERITAS terminates without cause, BUREAU VERITAS will provide CLIENT with a four (4) month transition period from the notice of termination to allow CLIENT sufficient time to secure a new Service Provider. During this transition period, BUREAU VERITAS and CLIENT’s responsibilities under this Agreement will remain in full force and effect.   At the end of the four (4) month transition period BUREAU VERITAS will cease all activities.  In the event CLIENT shall request BUREAU VERITAS to continue to provide any Services beyond the expiration of the transition period, including any extensions, then BUREAU VERITAS and CLIENT may negotiate in good faith terms of any such extension, including the pricing of Services. 

30.  Business Ethics and Compliance

The Parties with reference to the negotiation, preparation, execution and performance of this Agreement, whether directly or indirectly, as well as any other related agreements warrant and represent:

  1. To undertake to abide by, and to take reasonable steps to ensure that personnel abide by, the principles contained in (i) Bureau Veritas Code of Ethics  and Bureau Veritas Business Partner Code of Conduct; and (ii) Applicable Laws relating to combating bribery and corruption, including, but not limited to, Japan’s Unfair Competition Prevention Act, the Foreign Corrupt Practices Act of the United States of America, and the United Kingdom Bribery Act of 2010 (the “Anti-Bribery Laws and Obligations”);
  2. They will not give, offer or promise to give, receive or agree to accept any payment, gift, or other benefit or advantage which violates the Anti-Bribery Laws and Obligations;
  3. They have given and implemented instructions to its personnel aimed at preventing any conduct in breach of the Anti-Bribery Laws and Obligations, and undertakes to continue effectively implementing such instructions for the entire duration of this Agreement;
  4. They have in place an effective and appropriate program for anti-corruption compliance aimed at preventing any conduct in breach of the Anti-Bribery Laws and Obligations, and undertakes to continue implementing such compliance program for the entire duration of this Agreement;

31.  Interpretation of Agreement:  This Agreement shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party.

32.  Amendments:  This Agreement may be modified or amended only by a written document executed by both BUREAU VERITAS and CLIENT.

33.  Entire Agreement:  This Agreement (together with the Proposal and the Companion Documents) constitutes the complete and exclusive statement of Agreement between the CLIENT and BUREAU VERITAS.  All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.  The CLIENT and BUREAU VERITAS agree that this Agreement supersedes and makes void any and all Facility Access Agreement that may be signed by BUREAU VERITAS’s employees in respect of any performance pursuant to the performance of Services.  All facility access shall be governed solely by this Agreement without regard to any language contained in the Facility Access Agreement, whether such Facility Access Agreement is signed or unsigned and whether the Facility Access Agreement is signed subsequent to this Agreement..

34. Severability of Agreement:  If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the laws of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be effected and shall remain in full force and effect.

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