FEE FOR SERVICE CONTRACT
THIS AGREEMENT dated as of the ________ day of __________________, 20____.
BETWEEN:
[INSERT NAME OF CONTRACTOR], a body corporate duly incorporated
under the laws of [INSERT JURISDICTION], doing business as “[business
name]”,
(hereinafter the “Contractor”)
AND:
UNIVERSITY OF PRINCE EDWARD ISLAND, a body politic and
corporate established pursuant to the University Act, R.S.P.E.I. 1974, Cap. U4, having its head office in Charlottetown, Province of Prince Edward Island,
(hereinafter the “University”)
(And being hereinafter referred to jointly as “the Parties”)
WHEREAS the University requires certain services described as {insert short description or
title}.
AND WHEREAS the Contractor has undertaken to provide such services subject to the
following terms and conditions.
NOW THEREFORE this Agreement witnessed that:
1.0
DESCRIPTION OF SERVICES
1.1
The Contractor hereby agrees to provide the services and to perform the duties as
described in Appendix “A” to this Agreement (hereinafter the “Services”) which
Schedule is hereto attached and is an integral part of this Agreement.
1.2
The Contractor undertakes to ensure that the Services performed by the Contractor
(which term, for the purpose of this Agreement, includes its employees, servants and
agents) in accordance with a high standard of care, diligence and skill.
1.3
All Services performed by the Contractor under this Agreement shall be performed to the
satisfaction of the University acting reasonably. If the University determines that any of
the Services performed by the Contractor are unsatisfactory, the Contractor shall remedy
the unsatisfactory work upon receipt of notice specifying the nature of the work
performance determined to be unsatisfactory. Upon receipt of such notice from the
University, the Contractor shall promptly correct the unsatisfactory work to the
University’s satisfaction.
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2.0
TERM
2.1
The Contractor agrees to provide the Services from {dd/mm/yyyy to dd/mm/yyyy} unless
this Agreement is terminated earlier in accordance with the terms and conditions
contained herein.
3.0
LEGAL STATUS OF CONTRACTOR
3.1
The Contractor warrants that it is a corporation wholly owned, directly and indirectly by
persons resident in Canada. Further, the Contractor warrants and represents that it is duly
registered and qualified to do business wherever necessary to carry out the terms of this
Agreement.
3.2
The Contractor certifies that the Services are being provided by it as an independent
contractor and not as an employee, agent or representative of the University and, as such,
statutory employment deductions do not apply. The Contractor certifies that he/she/it is
not currently an employee of the University, and that nothing contained in this
Agreement authorizes or designates the Contractor to act in any capacity on behalf of the
University without a prior specific request and the consent of the University. Acceptance
of this Agreement does not constitute employment by the University or employment
under the Employment Insurance Act (PEI).
3.3
The Contractor shall provide the Services at times mutually agreed to by the University
and the Contractor. The Contractor shall retain control over the means and methods by
which it provides the Services. The Contractor shall provide any and all tools and
equipment needed to perform the Services. The Contractor acknowledges that it may
perform similar services for any other person at the same time the Contractor is rendering
the Services to the University, provided the Contractor complies with all of its obligations
under this Agreement. The Contractor, the Contractor’s employees and any other
individuals associated with the Contractor shall not be subject to direction, control or
supervision of the University as to the manner in which the Services are performed. The
Contractor shall be exclusively responsible for recruiting, screening, interviewing, hiring,
training, supervising, directing, disciplining and terminating all of the Contractor’s
employees, servants and agents.
3.4
The Contractor shall be solely responsible for all legally required employer and employee
contributions and deductions for the Contractor and any staff including Worker’s
Compensation, Canada Pension Plan, Employment Insurance and federal and provincial
income taxes and medical coverage. The Contractor shall provide proof of registration,
indicating “clear standing” status with the applicable Worker’s Compensation agency.
4.0
FEES AND PAYMENT
4.1
The University agrees to make payment to the Contractor for performing the Services
under this Agreement and for reimbursement of expenditures in accordance with
Appendix “B”, which Schedule is attached hereto and is an integral part of this
Agreement.
[EDIT THIS CLAUSE AS APPLICABLE]
4.2
The Contractor shall submit monthly invoices to the University, detailing the Services
performed to date. The University will pay the Contractor’s invoices within thirty days
of receiving them, provided the Services have been performed to the satisfaction of the
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University acting reasonably, and provided the University does not dispute the
Contractor’s invoice.
5.0
CONFIDENTIALITY AGREEMENT
5.1
The parties shall sign the Confidentiality Agreement hereto annexed as Appendix “C”
upon the execution of this Agreement, which Schedule is an integral part of this
Agreement.
6.0
OWNERSHIP
6.1
Copyright on all information produced by the Contractor in the course of performing the
Services contemplated by this Agreement, or as a result of this Agreement generally,
shall be owned solely by the University.
6.2
All materials including, but not limited to, documents, raw data, research, processes,
technology, programs and inventions conceived or produced in the performance of this
Agreement shall belong to the University.
7.0
AMENDMENTS
7.1
Changes in the scope of the work or Services or other terms and conditions of this
Agreement shall be implemented only upon written authorization from the University and
formal, written amendment to this Agreement. Fees for any such changes, where
appropriate, shall be as mutually agreed upon by the Parties.
8.0
INDEMNIFICATION AND INSURANCE
8.1
The Contractor shall exonerate, indemnify and hold harmless the University and its
successors, officers, directors, agents, affiliates and employees from and against any and
all liability, loss, cost, expense, damages, claims, fines, penalties, assessments or
demands on account of injuries (including death) or other losses or damages to the
Contractor or the Contractor’s employees, servants or agents or any other individuals
associated with the Contractor arising out of or resulting in any manner from or occurring
in connection with the performance of the Services including but not limited to any
claims for overtime pay, vacation pay, public holiday pay, notice of termination of
employment (or termination pay in lieu of such notice), severance pay, wrongful
dismissal, constructive dismissal, unjust dismissal, mental distress, wages, benefits,
bonus, incentive compensation, disability, health, life, or other insurance premium
payments or benefits, pension, interest, or any claims under any applicable laws relating
to employment standards, labour relations, human rights, pay, equity, employment equity,
occupational health and safety and workers’ compensation.
8.2
The Contractor further acknowledges that the Contractor, the Contractor’s employees,
servants and agents and any other individuals associated with the Contractor have no
entitlement and shall not have any claim against the University for any compensation or
benefits of the type provided by the University to the University’s employees, including,
without limitation, overtime pay, vacation pay, public holiday pay, notice of termination
(or termination pay in lieu thereof), severance pay, retirement benefits, employment
insurance, Canada Pension Plan, workers’ compensation, disability, health or life
insurance premium payments or benefits, wages, bonus or incentive compensation.
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8.3
The University shall not withhold federal, provincial or other taxes and premiums from
any amounts payable to the Contractor. The Contractor shall be solely responsible for
paying, and agrees to pay, such taxes in accordance with applicable laws and regulations.
The Contractor hereby exonerates, indemnifies and holds the University and its
successors, officers, directors, agents and employees harmless from the Contractor’s
failure to comply with any of the obligations required under this Agreement including
any liability, loss, cost, expense, damages, claims, fines, penalties, assessments or other
actions asserted against the University relating to the non-payment or late payment of
such taxes or its failure to comply with federal, provincial and municipal laws. Such
indemnification shall include without limitation any liability, loss, cost, expense,
damages, claims, fines, penalties or assessments and the University’s expenses (including
reasonable legal fees) associated with its defence of any such actions.
8.4
The Contractor shall be solely responsible for all physical injuries (including death) to
persons (including but not limited to employees of the University) and damage to
property (including but not limited to property of the University, third parties, the
Contractor, its employees, servants, agents or any other individuals associated with
Contractor) resulting from any act or omission of the Contractor, the Contractor’s
employees or of individuals for whom the Contractor is responsible in law, and the
Contractor shall indemnify and hold the University harmless from loss and liability in
respect of any and all claims on account of such injuries or damage. Such
indemnification shall include indemnification for acts of the Contractor’s employees and
of any individuals for whom the Contractor is responsible in law that constitute crimes,
such as theft, and intentional misbehaviour, while at any University facilities. The
Contractor shall be solely responsible for workers’ compensation claims filed by the
Contractor’s employees, servants or agents and any individuals associated with the
Contractor.
8.5
The Contractor shall maintain a minimum of $ { },000,000 in commercial general
liability insurance, naming the University as an additional insured, and auto liability
insurance with minimum limits of $ { },000,000, and providing 30 days’ notice of
cancellation. The Contractor shall provide proof of such policies of insurance upon
request of the University.
8.6
The indemnities and obligations of the Contractor specified in this Indemnification and
Insurance Section shall continue to bind and apply to the Contractor following the
completion of the Services and shall survive the termination of this Agreement.
9.0
PROFESSIONAL LICENSES
9.1
The Contractor agrees that it, he or she is in good standing within any professional
organization to which it, he or she must be a member in order to perform the Services
contemplated by this Agreement.
10.0
TERMINATION
10.1
This Agreement may be terminated as follows:
(a)
By the University where:
(i)
in the reasonable opinion of the University, the Services provided by the
Contractor are unsatisfactory, inadequate, or are improperly provided;
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(ii)
in the reasonable opinion of the University, the Contractor has failed to
comply with any substantive term or condition of this Agreement;
(iii)
the Contractor is dissolved or becomes bankrupt or insolvent;
(iv)
the Services are provided in connection with a project for which the
University has been awarded funding from an external source or for
which the University receives payment for the provision of services to a
third party, and that project or contract has been terminated or funding
or payment reduced;
Optional Clause:
(b)
Following a written notice by either party at least 30 calendar days prior to the
proposed cancelation, delivered in accordance with the Notices Section, below.
10.2
Upon termination of this Agreement, the Contractor shall cease to provide any further
Services. The University shall be under no obligation to the Contractor other than to pay,
upon receipt of an invoice and satisfactory supporting documentation, such compensation
as, in the reasonable opinion of the University, the Contractor may be entitled to receive
under this Agreement for work completed to the satisfaction of the University up to the
date of termination.
11.0
GOVERNING LAW
11.1
This Agreement shall be governed by and construed in accordance with the laws of the
Province of Prince Edward Island and the Parties hereby irrevocably attorn to the
jurisdiction of the courts of Prince Edward Island.
12.0
NOTICES
12.1
Any notice, request or other communication hereunder to either of the Parties hereto in
connection with this Agreement shall be in writing and be well and sufficiently given if
sent by prepaid registered mail or delivered to the other Party at its address as follows:
To the Party of the First Part:
[Insert Contractor Corporation’s Name]
Attention: [Insert Corporation Contact]
[Insert Contractor’s Address]
To the Party of the Second Part:
University of Prince Edward Island
Attention: [Insert Contractor’s Contact]
550 University Avenue
Charlottetown PE
C1A 4P3
With a Copy to:
Vice-President, Administration & Finance
University of Prince Edward Island
550 University Avenue
Charlottetown PE
C1A 4P3
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12.2
Any notice to either Party may be given by prepaid registered mail addressed to such
Party at its address as above stated and any notice so given shall be deemed to have been
duly given on the second business day after which the envelope containing the notice was
deposited, prepaid and registered in a post office. In the event of an interruption of mail
service, all notices shall be delivered by personal delivery on the other Party.
13.0
ENTIRE AGREEMENT
13.1
This Agreement supersedes and replaces any prior agreements (oral or written) between
the University and the Contractor with respect to the Services, and expressly discharges
the University from any and all obligations and any existing or potential liabilities or
claims arising out of any prior agreements for services. This Agreement (and the
documents incorporated by reference in this Agreement) contains the entire agreement
between the Parties. Neither the Parties, nor their agents, shall be bound by any terms,
conditions, statements, warranties or representations not herein contained. No
modification, extension or alteration of this Agreement shall be legally binding on either
Party unless executed in the same manner and form as this Agreement. The Contractor
shall not subcontract any portion of this Agreement, or the Services required hereunder,
without the prior written consent of the University.
14.0
COMPLIANCE
14.1
Each party will comply with all applicable laws, rules, and regulations in fulfilling its
obligations under this Agreement
14.2
The Contractor will be required to comply with all applicable University policies.
15.0
NO WAIVER
15.1
Neither the failure nor delay by either Party to exercise any right, remedy, power or
privilege under this Agreement shall operate or be construed as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power or privilege, nor shall
any waiver with respect to any occurrence be construed as a waiver with respect to any
other occurrence. No waiver of any right, remedy, power or privilege under this
Agreement will be effective unless in writing signed by the waiving Party.
16.0
SEVERABILITY
16.1
If any provision of this Agreement is held by a court of competent jurisdiction to be
invalid, void or enforceable, the remaining provisions shall, nevertheless continue in full
force and effect without being impaired or invalidated in any way.
17.0
HEADINGS
17.1
The headings preceding the paragraphs of this Agreement are for convenience only and
do not in any way limit or amplify the terms and provisions hereof.
18.0
LANGUAGE
18.1
References to the Parties herein shall be read with such changes in gender and number as
may be appropriate, depending on whether the respective Party is a male or female person
6
or persons or a firm or corporation, and if a Party to this Agreement is more than one
person or entity, the covenants of that Party shall be deemed joint and several.
18.2
Words importing the singular number only shall include the plural and words importing
firms and corporation shall include persons. Unless the context otherwise requires, the
word "Contractor", whenever used herein, shall be construed to include their respective
successors and permitted assigns, and if the Contractor is not a corporation shall include
heirs, executors and administrators.
19.0
ASSIGNMENT
19.1
Neither this Agreement, nor any of the rights or obligations hereunder, shall be assigned
in whole or in part by the Contractor without first receiving the prior written consent of
the University.
20.0
SURVIVAL
20.1
This Agreement shall enure to the benefit of and be binding upon the successors and
assigns of the University and upon the successors and permitted assigns of the
Contractor.
IN WITNESS WHEREOF the parties hereto have affixed their signatures as of the day and year
first written above.
[INSERT CONTRACTOR’S NAME]
Per:
(Authorized Signatory for Contractor)
Witness
Title:
UNIVERSITY OF PRINCE EDWARD ISLAND
Per:
(Authorized Signatory)
Witness
Title:
[NOTE: UPEI requires TWO signatures if contract is valued at $100,000 or more – DELETE
this section if not required]
Per:
(Authorized Signatory)
Witness
Title:
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APPENDIX A
SERVICES AND DUTIES:
1. {Insert full description of duties and service to be provided}
2. The Contractor shall be responsible for the completion of the work and deliverables as
described above and shall report to the following University official(s): {insert name(s)}
3. The primary person(s) responsible for delivery of the Services on behalf of the Contractor
under this Agreement is/are as follows: {insert name(s)}
4. Satisfactory completion under this Agreement is defined as: {insert or delete clause as
applicable}
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APPENDIX B
FEES AND PAYMENT
Fees and Payment Schedule:
1. The Contractor shall provide the Services for a total fee of {insert $} plus applicable
taxes {per diem, per hour, total fee, etc}, to be paid upon receipt of invoice and according
to the following schedule:
a. {Insert dates and payment amounts, or monthly, or bi-weekly or upon final
delivery, or upon satisfactory completion, etc}
Expense Reimbursement:
2. {insert or delete clause as applicable} Reasonable expenses shall be reimbursed upon
presentation of invoice {insert ‘to a maximum of’, or travel costs and other costs as
follows :}
Withholding Tax:
3. {IF NON-RESIDENT - insert} Non-resident suppliers will be subject to Canadian Nonresident tax withholding of fifteen percent (15%) for the portion of services provided in
Canada unless a waiver of withholding tax is provided. For this contract {insert # of
hours/days/weeks) of services will be performed in Canada out of a total of ____ (insert
hours/days/weeks). If this information is not available at time of contract signing, it must
be clearly identified on the invoice.
HST Information:
4. To receive payment, a valid business invoice must be issued to the University containing
a HST registration number or information indicating that the business is not required to
be registered for HST purposes.
5. Any HST charged will be calculated at the PEI HST rate.
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APPENDIX C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT dated the ___ day of _______________, 20___.
BETWEEN:
UNIVERSITY OF PRINCE EDWARD ISLAND, a body politic and
corporate established pursuant to the University Act, R.S.P.E.I. 1974, Cap. U4, having its head office in Charlottetown, Province of Prince Edward Island,
(the “University”)
AND:
[INSERT NAME OF CONTRACTOR], a body corporate duly incorporated
under the laws of [INSERT JURISDICTION], doing business as “[business
name]”,
(“Third Party”)
WHEREAS the University operates a university in Charlottetown, Prince Edward Island;
AND WHEREAS the Third Party wishes to enter into a relationship with the University to
provide certain goods and/or services to the University (the “Relationship”) and, during the
course of the Relationship, certain confidential information relating to the University may be
disclosed, communicated, or otherwise provided to the Third Party by the University;
NOW THEREFORE this Confidentiality Agreement witnesses that, for good and valuable
consideration (the receipt and sufficiency of which the Third Party hereby acknowledges by its
signature), the Third Party covenants to, and agrees with, the University as follows:
Section 1: Non-Disclosure of Confidential Information
A)
The Third Party and, as the case may be, the directors, officers, employees,
subcontractors, agents or advisors of the Third Party, including its accountants, lawyers,
lenders, consultants and financial advisors of the Third Party (collectively, the
“Representatives”), shall:
(i)
keep confidential all information relating to the University that is disclosed,
communicated, or otherwise provided to the Third Party by the University,
regardless of whether such information is in oral, visual, electronic, written or
other form and regardless of whether such information is identified as
“confidential”, and including any and all documents, reports, correspondence,
data, studies, or other information prepared by, on behalf of, or for the benefit of
the Third Party that contains, reflects, summarizes, analyzes, discusses, reviews
or otherwise includes any of the forgoing information (collectively, the
“Confidential Information”);
(ii)
use the Confidential Information solely to perform its obligations under the
Relationship and not directly or indirectly for any other purpose;
10
(B)
(C)
(D)
(iii)
not disclose the Confidential Information except as permitted by this
Confidentiality Agreement; and
(iv)
not, except with prior written approval from the University, reproduce, copy or
otherwise duplicate any of the Confidential Information disclosed,
communicated, or otherwise provided to the Third Party by the University.
For the purpose of this Confidentiality Agreement, the Confidential Information does not
include any information that:
(i)
is or becomes generally available to the public (other than as a result of
disclosure directly or indirectly by the Third Party);
(ii)
is or becomes available to the Third Party on a non-confidential basis from a
source other than the University, provided such source does not owe a duty of
confidentiality to the University or to any other person; or
(iii)
is or was independently acquired or developed by the Third Party without the use
of any information disclosed, communicated, or otherwise provided by the
University.
The disclosure restrictions contained in this Confidentiality Agreement do not apply to
any information that is required to be disclosed either by law, or by a professional body
or association in the context of a disciplinary matter. However, prior to making any such
disclosure, the Third Party must, unless prohibited by law:
(i)
immediately advise the University of the requirement;
(ii)
fully cooperate with the University to limit the extent of the disclosure; and
(iii)
provide the University with a reasonable opportunity to obtain a protective order
or other remedy in order to preserve the confidentiality of the information
required to be disclosed.
The Third Party may disclose Confidential Information to the Representatives of the
Third Party, but only to the extent that such Representatives need to know the
Confidential Information, have been informed of the confidential nature of the
Confidential Information, and agree in writing with the University to be bound by, and
act in accordance with, the provisions of this Confidentiality Agreement.
(E)
The Third Party is responsible for any breach by the Representatives, or any persons
associated with any of the Representatives, of the provisions of this Confidentiality
Agreement.
(F)
The Third Party will immediately notify the University of any decision by the Third Party
not to continue the Relationship. If such notice is given, or at any time upon the written
request of the University, the Third Party shall, and shall cause the Representatives to,
immediately destroy or return to the University (as directed by the University) all of the
Confidential Information, without retaining any electronic or paper copies, and the
Contractor shall certify to the University in writing that the deliveries or destruction
required by this section have been completed and the provisions of this Confidentiality
Agreement have been complied with.
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(G)
This Confidentiality Agreement shall survive the termination of the Relationship and
shall remain binding upon the Third Party.
Section 2: No Representations or Warranties
The Third Party acknowledges and agrees: (a) that the University makes no representation or
warranty, expressed or implied, as to the accuracy or completeness of the Confidential
Information; (b) that, in no event, shall the University be liable to the Third Party, the
Representatives, or to any other person for any losses, liabilities, damages, claims, demands or
expenses resulting from, connected with, or arising out of the use of the Confidential Information;
and (c) that the use of the Confidential Information does not confer upon the Third Party any
interest in the Confidential Information.
Section 3: Remedies
In the event of a breach of this Confidentiality Agreement, the Third Party must, immediately,
following discovery of the breach, give notice to the University of the nature of the breach. The
Third Party acknowledges and agrees that any breach of this Confidentiality Agreement will give
rise to irreparable injury and harm to the University, which cannot be rectified by, or be
compensable in, damages. The University may, in addition to any other remedy, enforce the
performance of this Confidentiality Agreement by way of injunction or specific performance
upon application to a court of competent jurisdiction without proof of actual damages (and
without the requirement of posting a bond or other security).
Section 4: Other Covenants and Agreements
The Third Party acknowledges and agrees that the Confidential Information is and remains the
property of the University and that no waiver of any privilege is implied by the disclosure of the
Confidential Information to any person pursuant to the terms of this Confidentiality Agreement.
Section 5: Miscellaneous
(A)
This Confidentiality Agreement is binding on the parties and their respective successors
and permitted assigns.
(B)
Neither this Confidentiality Agreement nor any of the rights or obligations under this
Confidentiality Agreement is assignable or transferable by the Third Party without the
prior written consent of the University.
(C)
If any provision of this Confidentiality Agreement is determined to be illegal, invalid or
otherwise unenforceable by any court of competent jurisdiction from which no appeal
exists, or is taken, that provision shall be severed from this Confidentiality Agreement
and the remaining provisions shall remain in full force and effect.
(D)
This Confidentiality Agreement is governed by, and shall be interpreted and enforced in
accordance with, the laws of the Province of Prince Edward Island and the federal laws of
Canada applicable in the Province of Prince Edward Island. The Third Party further
acknowledges and agrees that any question or dispute arising from this Confidentiality
Agreement shall be resolved or determined exclusively by the Supreme Court of Prince
Edward Island.
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(E)
This Confidentiality Agreement may be executed in any number of counterparts
(including by electronic mail and facsimile) and all counterparts taken together constitute
one and the same agreement.
IN WITNESS WHEREOF the parties have duly executed this Confidentiality Agreement on the
date set out above.
[INSERT CONTRACTOR’S NAME]
Per:
(Authorized Signatory for Contractor)
Witness
Title:
UNIVERSITY OF PRINCE EDWARD ISLAND
Per:
(Authorized Signatory)
Witness
Title:
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