Legal : Divestco Terms

Job Performance Terms

Document Version 1.1  Effective June 1, 2008

The provisions set out below are the “Job Performance Terms” which apply to any Job which is stated to be subject to Divestco’s “Job Performance Terms”.

DIVESTCO INC. ("Divestco") and the Person authorizing the Job (“Customer”) agree that the terms and conditions set out below (“Job Performance Terms”), the Job Request  and the Job Confirmation (both as defined in the Job Performance Terms) collectively are the entire agreement between Divestco and Customer for the Job.

1. INTERPRETATION

1.1 Definitions

In these Job Performance Terms:

(a) “Business Day” means a weekday which is not a statutory holiday in the Province of Alberta.

(b) “Contractor” means each Person with whom Divestco contracts for the provision of any part or all of the Job.

(c) “Customer Data” means documents and data (whether in digital or physical form) created by or for Customer, and required by Divestco for the performance of the Job.

(d) “Fees” means the amounts payable pursuant to article 3.

(e) “Job” means a specific job, job or project, as described in the Job Request.

(f) “Job Agreement” means the agreement, in respect of the Job, comprised of the Job Request, Job Confirmation and these Job Performance Terms.

(g) “Job Confirmation” means a notice which Divestco delivers (orally, in electronic written form or in paper written form) to a Customer, acknowledging and agreeing to perform the Job described in the Job Request.

(h) “Job Request” means an instruction (which may be delivered orally, in electronic written form or in paper written form) by the Customer to Divestco to perform the Job.

(i) "Person" means any individual, body corporate, partnership, joint venture, trust, trustee, executor, administrator, legal representative, government, government agency or any other form of organization capable of entering into legal relations.

1.2 Headings and References

The headings to articles, sections and subsections to these Job Performance Terms are for ease of reference only, but are deemed to not form part of the Agreement and must not be used to interpret any part of these Job Performance Terms.

(a) the terms “Article”, “Section” and “Subsection” followed by a number or letter or both, means or refers to a specific Article, Section or Subsection of these Job Performance Terms.

(b) a reference to “these Job Performance Terms” is a reference to this entire document and all collateral agreements referred to herein and not only one particular Article or Section, a reference to an “Article” is a reference to the contents of only that Article of these Job Performance Terms, a reference to “Section” is a reference to the contents of only that Section and a reference to “Subsection” is a reference to the contents of only that Subsection.

(c) a reference to “will” or “shall” means that the party must perform the matter so described; a reference to “may” means that the party has the option, but not the obligation, to perform the matter so described.

(d) where the context so requires, a reference to one gender means the other or neuter gender, and a reference to a single number means the plural, and vice versa.

(e) the words “including”, “included” or “include” shall not be construed to limit or restrict the generality of the matter that proceeds it.

(f) every reference to a schedule shall be a reference to a schedule attached to the Job Request,  unless otherwise specifically stated in these Job Performance Terms.

(g) if any day on which an action is required to be taken under these Job Performance Terms is not a Business Day, such action shall be required to be taken on the next day which is a Business Day.

(h) time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the date on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.

(i) any reference to a statute includes and is deemed to be a reference to such statute and to the regulations made pursuant thereto, and all amendments made thereto and in force, from time to time, and to any statute or regulation that may be passed which has the effect of supplementing or superseding the statutes referred to or the regulations made pursuant thereto.

1.3 Governing Law

The laws of the Province of Alberta, in the Dominion of Canada, govern these Job Performance Terms.  The parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Alberta, which courts have sole and exclusive jurisdiction over all disputes or matters arising from these Job Performance Terms; provided, however, that Divestco may bring proceedings in such other jurisdictions as it considers appropriate to enforce the rights granted to it in these Job Performance Terms.

1.4 Severable Provisions

Should any part of these Job Performance Terms for any reason be declared invalid, such declaration shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if these Job Performance Terms had been agreed to with the invalid portion eliminated.

1.5 Entire Agreement

The Job Agreement is the entire agreement between the parties for the provision of the Job and related matters addressed in these Job Performance Terms.  The Job Agreement replaces all discussions and previous agreements between Divestcoand Customer regarding the Job.

1.6 Supremacy of these Job Performance Terms

If the Job Request is a purchase order from Customer, then despite anything to the contrary in that purchase order, these Job Performance Terms shall solely apply to such Job.

1.7 Changes to Job Performance Terms

Divestco from time to time may amend these Job Performance Terms, and the Job Performance Terms as amended shall govern all Job Agreements created on or after the effective date of each such amendment.

2. PERFORMANCE OF JOB

2.1 Nature of the Job

If Divestco issues a Job Confirmation, then it shall perform and complete the Job described in the Job Request.

2.2 Time of Performance

Divestco shall make reasonable commercial efforts to complete performance of the Job in a timely fashion, but is not liable to the Customer for any failure to perform or complete the performance of any the Job by Customer’s desired or required completion date.

2.3 Manner of Performance

Divestco may perform the Job either using its internal resources, or by means of  one or more Contractors engaged for that purpose, or a combination of both the foregoing.

2.4 Nature of Relationship

(a) The relationship between Customer and Divestco is that of:

(i) principal and agent, respectively, with respect to any and all contracts, agreements or undertakings into which Divestco enters with any Contractor in respect of the performance of any part of the Job, and

(ii) independent contractors, with respect to all other aspects of these Job Performance Terms.

(b) Customer hereby expressly authorizes and directs Divestco to enter into such contracts, agreements, and undertakings as Divestco considers appropriate or necessary for the performance of the Job.

(c) Divestco shall be the “Prime Contractor” for the purposes of all applicable workplace safety legislation which requires that a Prime Contractor be designated.

(d) Except as expressly provided for in a Job Request or these Job Performance Terms, Divestco, its agents and employees, under no circumstances are agents or representatives of Customer and, except as Customer may specifically authorize in writing on its behalf by an authorized signing officer, Divestco has no right to enter into any contract or commitment in the name or on behalf of Customer or to bind Customer in any respect whatsoever.

(e) Customer, its agents and employees, under no circumstances are agents or representatives of Divestco and, except as Divestco may specifically authorize in writing on its behalf by an authorized signing officer, Customer has no right to enter into any contract or commitment in the name or on behalf of Divestco or to bind Divestco in any respect whatsoever.

(f) Nothing in these Job Performance Terms is deemed in any way or for any purpose to constitute the parties hereto partners in the conduct of any business or otherwise.

2.5 Manner of Performance

(a) While Customer may instruct Divestco as to the objectives or the results desired, Divestco has control of the manner in which it performs the Job.

(b) Divestco shall:

(i) perform the Job in a competent and professional manner and in accordance with good management, technical and industry practices, and

(ii) perform the Job honestly, skilfully and faithfully, always with a view to the best interests of Customer.

2.6 Facilities

Except to the extent the Job Agreement states otherwise, Divestco shall supply all equipment (including, but not limited to, vehicles, tools, computers, telephones, and office supplies) necessary for the performance of the Job, at Divestco’ own expense.

2.7 Customer Cooperation

(a) Customer shall make information in Customer’s possession or control available to Divestco as Divestco reasonably requires in order to perform the Job. 

(b) Customer shall provide such letters of authority or consent necessary to permit Divestco to effectively perform the Job.

(c) Where the Job includes and requires any reading, manipulation, processing, interpretation or other activity in respect of Customer Data, then the Customer shall deliver that Customer Data to Divestco, and Divestco’s obligation to perform the Job is suspended until such Customer Data has been delivered to Divestco.

2.8 Media and Data

(a) Customer shall make such backup copies of data on any media it delivers to Divestco, such that if Customer delivers any media to Divestco, and such media are damages or destroyed while in Divestco's possession or control, then Customer will be able to reproduce the data on the damaged or destroyed media.  Divestco has no liability for loss of Customer's data resulting from damage to or destruction of Customer's media while in Divestco's possession or control

(b) If the Job includes the creation and delivery by Divestco to Customer of any physical media containing any data (including but not limited to Customer Data), or the delivery by electronic means of any such data (including but not limited to ftp transfers, data files attached to electronic mail messages, and data accessible for downloading from an Internet website), then upon completion of each such delivery the Customer shall inspect the data so delivered to verify that it is complete, correct and accessible for Customer's use.  If the Customer gives written notice to Divestco within 30 days after a delivery that the data in that delivery is not complete, correct or accessible by Customer, then Divestco shall promptly re-deliver the data once such data has been made complete, corrected or made accessible.  If the Customer does not give such written notice to Divestco within 30 days after a delivery, then Divestco has no obligation thereafter to correct, complete, make accessible or re-deliver the data in question.

3. FEES AND PAYMENT

3.1 Fees

Customer shall pay Divestco a fee for the Job as set out in the Job Agreement.

3.2 Invoicing

(a) Divestco shall invoice Customer for the Fee relating to the Job upon completion of the Job, but if the Job is reasonably expected to take more than 30 days to complete, Divestco may also invoice Customer monthly for that portion of the fee in proportion to the part of the Job performed to the date of said invoice and not compensated for.

(b) Each invoice is due and payable in full immediately upon its issuance by Divestco and Customer shall pay to Divestco the full amount of each such invoice.

3.3 Job Suspension

If any invoice issued by Divestco pursuant to these Job Performance Terms remains unpaid (whether in part or in full) beyond the 30th day after its issuance, Divestco at its sole discretion may suspend the performance of the Job as it considers appropriate from time to time, until such invoice is fully paid. 

3.4 Interest

If Customer fails to make any payment pursuant to these Job Performance Terms when due, then Customer shall pay Divestco interest monthly, calculated from the due date for the payment in question at the rate of 1.5% per month (18% per year) on all amounts which are outstanding for more than 30 days after payment is due, until the date of actual payment, whether before or after judgment.  Customer shall pay all costs and expenses of Divestco incurred in collecting payment of any overdue amount or interest from Customer, including all actual legal fees and expenses paid or payable by Divestco. 

3.5 Currency and Payment Obligations

(a) Unless stated otherwise in a the Job Agreement, all references to “$” or “dollars” in these Job Performance Terms are references to the legal tender of Canada and all payments required to be made pursuant to these Job Performance Terms must be paid in the currency which is the legal tender of Canada.

(b) Any payment contemplated by these Job Performance Terms will be made by cash, certified cheque, bank draft or any other method that provides immediately available funds. All payments due on a particular day must be received and available not later than 4:00 p.m. (Calgary local time) on the due date and any payment made after that time will be deemed to have been made and received on the next Business Day.

3.6 Taxes

(a) Divestco shall charge and Customer shall pay all applicable taxes, including federal goods and services tax, applicable to the payments to be made by Customer pursuant to these Job Performance Terms.

(b) Divestco represents to Customer that Divestco is registered under Part IX of the Excise Tax Act (Canada).

3.7 No withholding

Customer shall not, on grounds of the alleged non-performance by Divestco of its obligations pursuant to any agreement, including any Job Agreement, withhold payment of any amounts due to Divestco pursuant to these Job Performance Terms.

4. WARRANTIES AND REPRESENTATIONS

4.1 By Divestco

Divestco warrants and represents to Customer that it:

(a) has good and sufficient right and authority to enter into this Job Agreement on the terms and conditions herein set forth and to perform its obligations described in this Job Agreement.

(b) the execution, delivery and performance of this Job Agreement does not and will not violate or conflict with any provision of Divestco’ incorporation and constitutional documents, nor any agreement, instrument, law or regulation to which Divestco is a party or by which Divestco is bound.

(c) no other approval or authorization of this Job Agreement or the acts or transactions set out in this Job Agreement  is required by law or otherwise in order to make these Job Performance Terms binding upon Divestco.

(d) this Job Agreement, and all other documents required by this Job Agreement to be executed and delivered by Divestco to Customer are, or when delivered will be, valid, legal and enforceable documents of Divestco.

4.2 By Customer

Customer warrants and represents to Divestco that:

(a) it has the power and capacity to enter into this Job Agreement and has taken all the necessary steps to authorize the execution thereof;

(b) the execution, delivery and performance of this Job Agreement does not and will not violate or conflict with any provision of Customer’s incorporation and constitutional documents, nor any agreement, instrument, law or regulation to which Customer is a party or by which Customer is bound;

(c) no other approval or authorization of this Job Agreement or the acts or transactions set out in this Job Agreement is required by law or otherwise in order to make this Job Agreement binding upon Customer; and

(d) this Job Agreement, and all other documents required by this Job Agreement to be executed and delivered by Customer to Divestco are, or when delivered will be, valid, legal and enforceable documents of Customer.

5. TERM AND TERMINATION

5.1 Term

The term of this Job Agreement commences on the date Divestco issues the Job Confirmation and continues indefinitely thereafter until terminated in a manner provided for in these Job Performance Terms.

5.2 the Job Agreement Termination by Customer

Customer may terminate the obligation of Divestco to continue and complete the Job described in the Job Agreement, at any time upon written notice to Divestco.  Upon receipt of such notice of termination, Divestco shall as soon as practicable cease performing the Job described in such the Job Agreement.  The Customer shall reimburse Divestco for Divestco’s reasonable costs and expenses arising from the premature termination of the Job, including:

(a) all costs and expenses incurred by Divestco to the effective date of termination for the Job performed,

(b) all non-refundable costs and expenses incurred or due by Divestco in respect of unperformed aspects of the Job,

(c) demobilization costs incurred or due by Divestco which would not have been incurred had the Job not been prematurely terminated, and

(d) loss of profit in respect of  the balance of the Job in question

all as calculated by Divestco, acting reasonably.

5.3 Agreement Termination by Divestco

Divestco may terminate its obligation to continue and complete the Job described in the Job Agreement immediately on written notice to Customer upon:

(a) The appointment of a receiver or trustee over any part of the assets of Customer;

(b) the final judgment by a court of competent jurisdiction of Customer as a bankrupt; or the commencement of any proceedings, whether voluntary or involuntary, to liquidate, dissolve or wind up Customer.

(c) Divestco being prevented, by any governmental action from carrying on business with Customer for any reason.

(d) Customer being in default of any of the terms and conditions of these Job Performance Terms, such default having continued for 10 days following written notice from Divestco.

5.4 Agreement Termination By Customer

Customer may terminate the obligation of Divestco to continue and complete the Job described in the Job Agreement immediately on written notice to Divestco upon:

(a) The appointment of a receiver or trustee over any part of the assets of Divestco;

(b) the final judgment by a court of competent jurisdiction of Divestco as a bankrupt; or the commencement of any proceedings, whether voluntary or involuntary, to liquidate, dissolve or wind up Divestco.

(c) Customer being prevented, by any governmental action from carrying on business with Divestco for any reason.

(d) Divestco being in default of any of the terms and conditions of these Job Performance Terms, such default having continued for 30 days following written notice from Customer.

5.5 Payment Obligation survives termination

Despite the termination of a Job Agreement, the obligation of the Customer to pay Divestco the Fees and expenses in respect of the Job (or such portion of it as has been performed) or pay pursuant to section 5.2, shall survive the termination of the Job Agreement until full payment is received by Divestco.

6. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

6.1 Intellectual Property Rights

If the Job is, or includes, the creation of any form of intellectual property (including but not limited to works capable of protection by copyright, trade-mark or patent laws), then:

(a) unless the Job Agreement respecting the Job expressly and specifically states that intellectual property ownership resides with the Customer, then:

(i) all rights in such intellectual property shall reside solely with Divestco,

(ii) Divestco grants to Customer an irrevocable, worldwide, royalty-free, non-transferable, non-exclusive license to use such intellectual property for Customer’s own business purposes but not for distribution or sale to other Persons, and

(iii) Divestco grants Customer the right to reproduce all reports, summaries and other documents compiled and prepared by Divestco, for Customer’s own use but not for distribution or sale to any other Persons.

(b) the Job Agreement respecting the Job expressly and specifically states that intellectual property ownership resides with the Customer, then all rights in the intellectual property so identified and described in the Job Agreement in question shall reside solely with Customer and Divestco shall do all things reasonably requested by Customer, at Customer’s expense, to transfer ownership and registration of such intellectual property to Customer.

6.2 Confidential Information

In this Article, “confidential information” means all information which Divestco acquires, directly or indirectly, in the performance of the Job relating to the business and affairs of Customer or any of its customers including, without limitation, all corporate, legal and technical information, geophysical and geological information, field information, appraisals, studies and field notes.

6.3 Maintenance of Confidentiality

Divestco shall:

(a) hold, and shall cause its employees to hold, all confidential information in strict confidence,

(b) not, without Customer’s prior written approval, which approval may be arbitrarily withheld, use the confidential information other than for the performance of the Job,

(c) not disclose the confidential information to anyone other than:

(i) any representative, employee or contractor of Customer, and

(ii) employees, representatives and contractors of Divestco,

and then only to the extent that such confidential information is directly required to be disclosed in order to properly perform the Job, and

(d) not disclose the confidential information to any third party either during or after the term of these Job Performance Terms,

except with the written permission of Customer.

6.4 Exclusion

The obligation set out in the immediately preceding section does not apply to any confidential information which:

(a) is known to the public through no act of Divestco at the time of the acquisitions thereof by Divestco;

(b) After the acquisition thereof by Divestco becomes known to the public through no act of Divestco;

(c) Divestco can establish was lawfully disclosed to it by a third party not under an obligation of confidentiality with respect to that information;

(d) Divestco creates independently of these Job Performance Terms, or

(e) Divestco is required by law to disclose.

6.5 Privacy

In Divestco’s performance of its obligations pursuant to these Job Performance Terms, Divestco shall comply with all applicable provisions of the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (Alberta) or substantially similar legislation of any other province or territory of Canada.

7. LIABILITY AND INDEMNITY

7.1 Liability of Divestco

If Divestco breaches a Job Agreement, then the sole remedy of Customer against Divestco is, at Divestco’s option:

(a) to remedy the breach in question within a reasonable time, or

(b) compensate the Customer for the damage actually suffered by the Customer as a direct result of the breach, subject in all cases to the limitations set out in section 7.3 below.

7.2 Indemnity By Customer

(a) Customer shall indemnify and hold harmless Divestco and all corporate and other legal entities affiliated with Divestco, and all their respective officers, directors, employees and agents, and all contractors engaged by Divestco for the performance of the Job (collectively, the “Divestco Group”) from all costs, claims, damages or liability of any type whatsoever, including but not limited to claims for direct damages, indirect damages, consequential loss, aggravated, exemplary or punitive damages, and all legal costs of any type whatsoever associated with or arising from the performance of the Job.

(b) The foregoing indemnity shall not apply where the claims, demands, causes of action, liabilities, damages, judgments, awards, losses, costs and expenses in expenses were caused or contributed to by the breach of these Job Performance Terms, negligence, fault or wrongful act of Divestco or those for whom Divestco is at law responsible.

7.3 Limitation of Liability

(a) Divestco’s liability to the Customer for any claims, costs, losses, damages of any kind or any other cause, including but not limited to liability for any breach of a Job Agreement by Divestco, and regardless of the form of action, shall not exceed the amount of the Fees paid in respect of the particular the Job in respect of which the breach in question applies.

(b) Divestco is never liable for special, indirect, incidental or consequential damages which the Customer may incur or experience on account of entering into or relying upon a Job Agreement or by the receipt of the Job or use of the output of the Job.

(c) Divestco is never liable to Customer for any aggravated or punitive damages in any circumstances.

(d) Customer acknowledges that the pricing of the Fees in the Job Agreement reflects the allocation of risk between Divestco and Customer set out above, and the limitation of liability specified in these Job Performance Terms. 

8. ASSIGNMENT

8.1 By Divestco

Any Job Agreement may be assigned by Divestco. 

8.2 By Customer

Except as expressly permitted by these Job Performance Terms, Customer may not assign any Job Agreement without the prior written consent of Divestco, which consent Divestco may grant or withhold in its sole and arbitrary discretion.

8.3 Assignment to Affiliates

Despite the provisions of section 8.2, Customer may assign any Job Agreement without consent to an affiliate (as such term is defined in the  Business Corporations Act (Alberta)), such assignment to be effective only for so long as such affiliate remains an affiliate of Customer.

8.4 Prohibited Business Combinations

For the purposes of these Job Performance Terms, any merger or amalgamation of the Customer or the Person which controls the Customer as of the date of these Job Performance Terms, or any other corporate action which results in control of the Customer changing from that existing on the date of these Job Performance Terms is deemed an assignment to which section 8.2 applies.   For the purpose of this section, “control” has the meaning given it in the  Business Corporations Act (Alberta).

9. General Provisions

9.1 Notices

(a) Any notice required or permitted under these Job Performance Terms can be delivered by any means, but has no effect until a legible copy of the notice is received at (or where sent by fax or e-mail, printed or displayed in its entirety) the addressee’s notice address,  The parties’ addresses for notice are:

(i) Divestco: 400, 520 - 3rd Avenue SW, Calgary, AB   T2P 0R3

(ii) Customer: the address set out in the Job Confirmation

(b) A notice given by e-mail is deemed written notice if given as provided for in the immediately preceding subsection.

(c) A party can change its notice address to another Canadian address by giving notice in the manner permitted by these Job Performance Terms.

9.2 Enurement

The benefits of these Job Performance Terms enure to the benefit of and are binding upon the parties and their respective successors and permitted assigns.

9.3 Survival

Despite the termination of a Job Agreement, Articles 3,5, 6 and 7 and such other provisions as by their nature or effect are intended to survive termination shall survive termination of that job Agreement and remain enforceable by and against the parties to these Job Performance Terms until the end of all applicable statutory limitation periods:

9.4 Force Majeure

Neither Customer nor Divestco shall be liable to the other for loss, damage, or delay in the work caused by war, riot, labour dispute, strike, the act or order of any competent civil or military authority or by fire, flood, or by any cause which is unavoidable and beyond its reasonable control, or by any act of God and any such cause will extend the performance of the delayed obligation to the extent of the delay so incurred.  If a party to a Job Agreement is delayed for any of the reasons set out above, then such parties shall make reasonable efforts to overcome the event of force majeure in question and render performance in a timely manner. Lack of finances is deemed not a cause beyond a party's reasonable control.


END OF JOB PERFORMANCE TERMS