These Terms and Conditions dated XXXXXDateXXXXX form part of any attached Subcontracting Agreement between Contract Community Inc. otherwise known as CCI., a corporation incorporated pursuant to the laws of Canada, (“CCI.”) and XXXXXXX (“Subcontractor”), located at (address) XXXXXfull addressXXXXXX and effective, XXXX Date XXXXX.
WHEREASCCI is in the business of Information Technology consulting and has established an excellent reputation for the timely and professional delivery of such Information Technology services (“Services”) to diverse clients (“Clients”), with whom CCI enters into contracts for such services from time to time (“Contracts for Services”);
AND WHEREAS the Subcontractor has certain skills and expertise in providing Information Technology consulting services;
AND WHEREASCCI and the Subcontractor have entered into one or more Subcontracting Agreements (the “Subcontract”) pursuant to which the Subcontractor will provide Services to a CCI client;
AND WHEREAS the parties hereby wish to establish certain Terms and Conditions that shall apply to the Subcontract, the adherence thereto by the Subcontractor being a condition of the Subcontract for the sole benefit of CCI;
NOW THEREFORE in consideration of the execution of the Subcontract by CCI and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the following terms and conditions:
1) Subcontractor’s Work
It is understood and agreed that:
a) CCI., having secured a Contract for Services, has chosen, in its sole and absolute discretion, particular requirements and/or tasks that have been offered to the Subcontractor;
b) Subcontractor has freely accepted the proposed requirements and/or tasks as described in the Subcontract and the Statement of Work in Appendix “A” and has agreed to deliver the deliverables described in both the Subcontract and the Statement of Work and agrees to comply with the Subcontract and the Contract for Services.
2) Subcontractor’s Obligations
The parties agree that:
c) The Subcontractor has identified to CCI that it has personnel with suitable skills and expertise to achieve the requirements and/or perform the tasks required in this Subcontracting Agreement (“Subcontractor Personnel”). The Subcontractor Personnel may not be substituted with any other individual(s) without the prior written consent of CCI.
d) The Subcontractor will exercise all required skill, care and due diligence in the performance of its obligations under the Subcontracting Agreement and will perform all the Work honestly and in good faith, in a professional manner, in accordance with recognized professional and industry standards, and complying with all applicable federal, provincial (or state), and municipal laws. Without limiting the generality of the foregoing and subject to the performance of any obligations of CCI in connection with the Subcontracting Agreement, the Subcontractor will bear total responsibility for the completion of all Work and Deliverables to the satisfaction of the Client. The Subcontractor shall have full discretion as to the manner of providing the Deliverables and the nature of the services required and shall render such services with the highest professional standards within the parameters of the Contracts for Services.
e) The Subcontractor acknowledges and agrees that it shall be responsible for delivering and supplying all materials, tools, supplies, personnel and equipment necessary in order to fulfill its obligations under this Subcontracting Agreement. The Subcontractor further acknowledges that CCI shall not supply any such items, nor shall CCI provide any office space to the Subcontractor.
f) The Subcontractor shall at all times maintain an office for conducting its business that is separate and apart from facilities of CCI and the Client.
g) The Subcontractor agrees that it shall be solely responsible for all expenses it incurs, including but not limited to travel costs and project-related expenses, whether related directly or indirectly to the performance of services pursuant to this Subcontract.
h) The Subcontractor may, during the term of this Subcontract, be engaged by other companies, provided that its engagement does not conflict with its duties hereunder or with the interests of CCI.
3) Fees. Taxes. Invoices. Payments
i) Fees. CCI shall pay Subcontractor the fees set out in the Subcontracting Agreement (the “Fees”). Fees shall be charged on a per-project basis, unless the Client has required otherwise in its Contract with CCI. It is understood and agreed that Fees paid to the Subcontractor are based on a portion of the total fees paid by the Client for the Contract in question and in no event will CCI be liable to pay any fees in excess of the amount agreed to in the Subcontracting Agreement. The Fees are exclusive of any sales, goods and services, excise, value added or similar taxes of any kind.
j) Taxes and Compulsory Contributions. The Subcontractor shall be responsible to pay to the appropriate government agencies all taxes which may become payable in respect of the payments made under the Subcontracting Agreement including without limitation compulsory contributions in connection with government pension plans, CPP, employment insurance, workers’ compensation, health taxes, customs, duties, excise, and value added assessments.
k) Invoices. CCI is responsible for invoicing the Client directly for all Work performed by the Subcontractor. The Subcontractor will invoice CCI for all Work performed by the Subcontractor, as follows:
i) For fixed price Subcontracts, unless otherwise stated in the Subcontracting Agreement, the subcontractor will submit invoices to CCI within three working days of the satisfactory completion of each Deliverable and will submit a final invoice within three working days of the completion of the Work.
ii) For per diem Subcontracting Agreements, the Subcontractor will submit invoices to CCI with full supporting documentation, as appropriate (including a record of all time worked pursuant to the Subcontract), within five working days of the end of each month until the completion of the Subcontract in order to allow sufficient time for processing. SHOULD THE TIMESHEET AND INVOICE NOT BE RECEIVED WITHIN 3 DAYS OF THE END OF THE MONTH, THE INVOICE WILL BE PAID THE FOLLOWING PAY PERIOD. CCI will review the invoices and, if approved, will invoice the Client within an additional three working days.
l) Payments. Payments will be made by CCI to the Subcontractor within three (3) days of receipt of the Client's corresponding payment
m) GST. The Subcontractor must have a Goods and Services Tax (GST) registration number. The Subcontractor will provide CCI with its GST number and include it on each invoice submitted to CCI.
n) Due to the nature of this subcontractor agreement, the subcontract is not entitled to charge an overtime premium for any work performed on this contract. All work performed will be at the agreed upon per diem rate listed on the first page of this agreement.
The term of this Subcontract shall commence upon [insert date] and shall end on [insert date], with CCI’s full satisfaction and the approval of the Deliverables and Work provided under this Subcontract unless this Subcontract is terminated earlier as provided in section 12 of this Subcontract.
5) Employees of Subcontractor
o) The Subcontractor shall be responsible for selecting and providing the Subcontractor Personnel, and for ensuring that their performance is in accordance with the terms of the Subcontracting Agreement and the Contract for Services.
p) The Subcontractor further agrees to pay its own employees, servants, customers or agents, if any, and to pay all required employer health tax levy amounts, Canada Pension Plan deductions, income tax deductions, Employment Insurance deductions, vacation pay, public holiday pay, health tax and workplace safety and insurance deductions at its own expense.
q) The Subcontractor hereby agrees that in the event CCI requests the services of a specific person(s), the Subcontractor will make the person(s) available to perform the obligations of the Subcontractor under this Agreement and the Subcontract in question.
6) Independent Contractor
The parties acknowledge and agree that they have entered into this Subcontract not as employee nor as employer, nor in partnership, but merely as independent parties carrying on separate business enterprises.
r) Subcontractor will perform the Work as an independent contractor, and nothing contained in the Subcontracting Agreement will be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties or between CCI and the Subcontractor’s employees.
s) Subcontractor and its employees shall not take any action or permit any action to be taken on its behalf which purports to be done in the name of, or on behalf of, CCI or its affiliates and Subcontractor shall have no power or authority to bind CCI or to assume or create any obligation or responsibility express or implied on CCI behalf or in its name, nor shall Subcontractor or its employees represent to any one that it has such power or authority.
t) Neither Subcontractor nor any of its employees shall, in any sense, be considered employees or agents of CCI, nor shall the Subcontractor or any of its employees, be eligible or entitled to any benefits, requisites or privileges given or extended to CCI employees. No oral representations by employees or agents of CCI shall have the effect of overriding this term and condition.
7) Liability and Indemnification
The Subcontractor shall be liable for, and agrees and covenants to indemnify and save harmless CCI (and its directors, officers, employees and agents), during the term of the Subcontracting Agreement and for a period of one year thereafter, against all manner of claims, demands, debts, actions, causes of action, damages, loss, costs, legal fees on a solicitor and client basis, liability or expenses, however arising from or related to or connected with the Subcontracting Agreement, including:
u) the Subcontractor’s obligations under the Subcontracting Agreement and the performance or non-performance thereof;
v) any injury to persons (including injury resulting in death);
w) loss of or damage to property, including property of CCI or any Client;
x) payment or non-payment of the taxes and contributions referred to in Section 3(b); or
y) any payment of license fees and all other payments analogous to royalties for, and also claims for damages based on, the use or infringement of any patent, registered industrial design, trade-mark, copyrighted work, trade secret, or other intellectual property right, and any costs or expenses (collectively, “Royalties”) incurred as a result of the exercise by any person of any moral rights, that results from or is alleged to result from the carrying out of the Work or from the use or disposal by CCI of anything furnished by the Subcontractor hereunder or under any related Subcontracting Agreement.
8) Limitation of Liability and Insurance
In no event shall CCI be liable to the Subcontractor for special, indirect, incidental or consequential damages, including loss of profits or revenue, howsoever caused, even if such damages are foreseeable or CCI has been advised of the possibility of such damages.
During the term of this Subcontract, the Subcontractor shall carry and maintain adequate insurance covering its employees including comprehensive general liability insurance and, if applicable, workplace safety and insurance coverage. The general liability insurance will stipulate that it will operate as primary insurance and that no other insurance obtained by CCI will be called upon to contribute to cover a loss. Comprehensive general liability insurance coverage maintained by or during the term of this Subcontract shall not act as a limitation of the Subcontractor’s liability hereunder.
9) Acts and Omissions
The Subcontractor shall be solely responsible for the Subcontractor’s acts and omissions and the acts and omissions of the Subcontractor’s employees and agents in performing the Work and the Deliverables.
a) CCI, Subcontractor and Client may disclose to one another under the Subcontracting Agreement, confidential information belonging to the parties hereto or to the Client (each individually a “Disclosing Party”). CCI and Subcontractor undertake and agree to maintain the confidential information of the Disclosing Party in confidence (during the term of the Agreement or at any time thereafter), including, without limitation, all information, documents, systems, patents, trademarks, trade names, copyrights, industrial design, or other industrial property of each party.
b) The Subcontractor shall disclose the confidential information referred to in this Section 10 only to those of its employees, officers, agents and consultants who need to know the information for the purposes of fulfilling the obligations of the Subcontractor under the Subcontract.
c) Subcontractor acknowledges and agrees that monetary damages may not be adequate in the event of a default of this Section 10 by Subcontractor or its employees, agents, consultants or officers and that CCI shall be entitled to injunctive or other affirmative relief and to terminate the Agreement immediately upon written notice to Subcontractor, in addition to any other remedies available to CCI at law and in equity.
11) Intellectual Property
a) In this section 11, “Material” means anything that is created or developed by Subcontractor as part of the Work under the Subcontract and in which intellectual property rights may subsist, including without limitation software (including source code and object code) and all program materials, flowcharts, notes, outlines, work papers and the like created or developed in connection therewith.
b) CCI shall own exclusively all the Material produced or to be produced by the performance of the Work, and all intellectual property and other rights therein, including without limitation all copyrights, rights to create derivative works, patents, trademarks, trade secrets, mask works and any other intellectual property rights pertaining to the Materials(“Intellectual Property Rights”). Subcontractor hereby acknowledges and agrees that: CCI may assign or transfer the Material and Intellectual Property Rights therein to a Client as is required under a Contract.
c) Subcontractor hereby agrees to execute, and to have its Employees, agents, consultants and officers execute, without charge to CCI, any documents deemed necessary by CCI to evidence and secure CCI exclusive ownership of the Materials and the Intellectual Property Rights in any and all countries, and to permit CCI to assign the Material to a Client as it requires under any Contract. Subcontractor shall ensure that it has, and hereby warrants that it has, the unrestricted and complete right, title and interest in contributions to the Materials and the Intellectual Property Rights therein made by its Employees, consultants and officers.
d) Subcontractor agrees to permanently waive its moral rights under the Copyright Act (Canada) in respect of the Material, and, if applicable, agrees to ensure that its Employees, consultants and officers also permanently waive their moral rights under the Copyright Act in respect of the Material.
e) Where Material incorporates or is based on intellectual property rights owned by Subcontractor, or to which Subcontractor has a license and/or other rights to use, which intellectual property is not created or developed in the course of or arising directly from a part of the Work performed hereunder (collectively, “Background IP”), title and ownership will remain with Subcontractor or third party as appropriate. Subcontractor agrees to grant CCI a non-exclusive, fully paid irrevocable license to the Background IP necessary for the purposes of the full use and exploitation of the Material by CCI individually or on behalf of a Client, and warrants that it owns or has sufficient rights in such Background IP to do so.
a) This Subcontract may be terminated by CCI or the Subcontractor at any time by providing twenty (20) days written notice to the other party, by registered mail or personal service. Upon the expiration of the notice period and the delivery of any and all Work completed or in progress to date to CCI, this Subcontract shall be wholly terminated.
b) The Subcontract may also be terminated upon the mutual written agreement of CCI and the Subcontractor to terminate without any written notice.
c) CCI or Subcontractor may terminate this Subcontract without notice to the other party if:
i) a material breach of the Subcontract by either party occurs, with such breach remaining unremedied ten days after written notice of the breach (“material breach”) includes, but is not limited to, failure to make prompt payments; failure to comply with these terms and conditions of the Subcontract; failure to comply with Work specifications and descriptions; conduct or practice considered harmful to CCI; unauthorized substitution of Subcontractor employees);
ii) a party becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any payment, assignment or arrangement with its creditors;
iii) a receiver, receiver and manager, or other officer with similar powers is appointed for all or any material part of a party’s business; or
iv) steps are taken or proceedings are initiated for the dissolution, winding-up or other termination of a party for the liquidation of the party’s assets.
d) CCI may terminate this Subcontract without notice to the Subcontractor if:
i) a Client terminates any Contract with CCI where the Services to be provided therein include Work which the Subcontractor is required to perform;
ii) there is any sale, transfer or relinquishment, voluntary or involuntary, by operation of law or otherwise, of any substantial interest in the legal or beneficial ownership or control of the Subcontractor following the date of this Subcontracting Agreement; or
iii) the Subcontractor fails to secure and maintain any license, certification, registration or permit necessary for the conduct of its business.
e) If this Subcontract is terminated:
i) The Subcontractor’s sole remedy against CCI is the right to receive payment from CCI for all Work or other services satisfactorily rendered by the Subcontractor prior to termination and for all disbursements reasonably and properly incurred by the Subcontractor prior to termination.
ii) CCI may withhold any reasonable, unpaid amounts due to the Subcontractor prior to termination. The amounts so withheld may be applied by CCI to indemnify CCI for any excess costs that it may incur to complete the services described in a terminated Subcontract. Any amounts so withheld that are not required to provide such indemnification shall be paid to the Subcontractor when CCI determines that it has been adequately indemnified. If the amounts so withheld are not adequate to indemnify CCI, the Subcontractor will pay to CCI such further sums as CCI may reasonably demand in order that CCI shall be completely indemnified for all such excess costs.
This Agreement may not be assigned by any party whether by operation of law or otherwise, without the prior consent of the other party, except that CCI may assign the Subcontract pursuant to a merger or acquisition or the sale of all or substantially all of the assets of CCI without the consent of the Subcontractor. This Agreement shall be binding upon and shall endure to the benefit of the parties and their respective heirs, successors and assigns.
The parties agree that one of CCI’s core business activities is performing marketing activities to secure clients for Subcontractors. The Subcontractor agrees that CCI has the right to the protection of investment in time and effort in these activities.
The Subcontractor agrees that, where CCI has performed marketing activities (including, without limitation, presentations to the Client with a view to securing the Client’s business) for the Subcontractor with respect to a particular Client (refer to the CLIENT / PROJECT DESCRIPTION (Table 1) section of the first page of this and future sub-contract agreements where these Terms & conditions apply), and, within one year of the end date for any Subcontract with respect to the particular Client named in such Subcontract, the Subcontractor (whether individually or in partnership or jointly or in conjunction with any person as principal, agent, contractor or in any other capacity) directly or indirectly:
a) contracts with the Client to provide services to that Client independently of CONTRACT COMMUNITY; or
b) arranges for or encourages the Client to enter into any contract with a third party or vice versa,
then the Subcontractor shall, upon request from CONTRACT COMMUNITY, pay to CONTRACT COMMUNITY an amount equal to twenty-five percent of the value of such contract for up to twelve months, or up to the completion of such contract, whichever comes first. The Subcontractor covenants to give written notice to CONTRACT COMMUNITY forthwith after the occurrence of an event described in Sections 14 a) or b).
The Subcontractor may, during the term of this Subcontract, be engaged by other companies at the another client but not at the same particular client area as noted on Page one of this agreement, provided that its engagement does not conflict with its duties hereunder or with the interests of CCI.
15) Governing Law
These Terms and Conditions and the Subcontract shall be construed and enforced in accordance with the laws of the Province of Ontario and the parties hereto submit to the jurisdiction of the Courts of the Province of Ontario in any action or proceeding hereunder.
16) Entire Agreement
These Terms and Conditions and any Subcontract(s) then in effect contain the entire Agreement between the parties with respect to the subject matter hereof. There are no oral or written representations, warranties, forms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties, other than as expressly set forth in this Agreement. To the extent there is inconsistency or disagreement between the Terms and Conditions and the Subcontract, the Subcontract shall prevail.
17) Force Majeure
Neither party hereto shall be liable for any loss or damage due to any delay in the timely performance of the terms hereof (except for the payment of money) by reason of: strikes, lockouts and other labour disputes; fires, riots, wars, embargoes and civil commotion, or acts of God. Any such delay shall extend performance for a period limited to the equivalent length of such event of force majeure.
Whenever possible, each provision of these Terms and Conditions shall be construed to be consistent with applicable law. If any provision of these Terms and Conditions or the application thereof to any party or circumstances shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition without invalidating the remainder of such provision or any other provision of these Terms and Conditions or the application of such a provision to other parties or circumstances.
There shall be no waiver or breach of any term or condition of this Subcontract unless the waiver is in writing signed by the other party who has not committed the breach. A waiver with respect to a specific breach shall not affect any rights of the parties relating to other or future breaches.
All notices and consents required to be given or made by the parties hereunder shall be in writing and shall be deemed validly given if delivered by hand or sent by registered mail or facsimile to CCI at: CCI., 860 Berry Side Road, RR#1 Dunrobin, Ontario, K0A 1T0 Attention: Todd La Fontaine, tel. (613) 832-5500, Fax. (613) 348-4721; and to the Subcontractor at the address noted on the first page; Attention: President.
Notice received by hand shall be deemed to have been received by the addresses on the date delivered. Notice given by postage-prepaid registered mail shall be deemed to have been received by the addressee on the third business day following the day upon which it is mailed. Notice given by facsimile shall be deemed to have been received by the addressee on the business day following the day on which it was sent. A party may change its address for receipt of notice hereunder by giving seven days’ notice to the other parties in accordance with this Section 2(d).
Terms fair and reasonable
The parties acknowledge that they have read and understood the terms of this Subcontract and agree that the said terms are fair and reasonable and correctly set out the parties’ intentions and further agree to abide by the terms hereof. The parties further acknowledge that they have had legal representation with respect to the terms of this Subcontract or the opportunity to obtain same.
In witness whereof the parties hereto have executed this Subcontract.