Service Contract Terms and Conditions
This Agreement entered into this ____ day of _________, 20____
BETWEEN: Red River College (“the College”) and (the “Vendor”)
- The College requested quotations for services outlined in the RFQS attached hereto as Schedule “A” (the “Services”);
- The Vendor submitted the quotation selected by the College to perform the Services, attached hereto as Schedule “B”; and
- The Parties wish to enter into an agreement for the performance of the Services;
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, the Parties agree as follows:
This term of this Agreement commence on the date first written above and shall continue for the period set out in the attached Quotation.
Red River College and the Vendor agree that any work performed by the Vendor outside the scope of the Services, as defined at subsection 3.2 of this Agreement, without prior written approval of Red River College shall be deemed to be gratuitous on the Vendor’s part, and Red River College has no liability with respect to such work.
3. Performance of Vendor’s Obligations
The Vendor represents and warrants that it possesses the necessary skills, expertise and experience to perform the Services in accordance with their agreement with Red River College as provided by the RFQ and the Quotation (the “Agreement”).
The Vendor agrees:
- that the Services shall be provided as outlined in the RFP attached as Schedule “A” to this Agreement, and the Proposal, attached as Schedule “B” to this Agreement unless Red River College and the Vendor agree otherwise in writing (the “Services”);
- that the resource identified to perform the Services in the attached Quotation, if any, shall be the resource designated to perform the Services and shall devote the time, attention, abilities and expertise necessary to properly perform the Vendor’s obligations;
- to perform all obligations and provide the Services in a professional manner to the complete satisfaction of Red River College;
- to comply with all reasonable directions and requests of Red River College within the scope of the work as set out in the RFP and the Proposal;
- that all representations and warranties contained in the Proposal are true and correct and shall so remain throughout the term of the Agreement; and
- that Red River College shall have the right of prior approval of any additional person or persons designated to provide the Services. Red River College, acting reasonably, shall have the right to request the removal of any person or persons so designated. The Vendor shall immediately comply with all such requests for removal.
All reports to be prepared by the Vendor, shall be in writing and shall be satisfactory in form and content to the College
4. Change Management
Red River College reserves the right in its sole discretion to make reasonable changes, additions or deletions to the Services by the issuance of a written Change Order without invalidating this Agreement. In the event any change in the Services is made by Red River College, the price shall be adjusted accordingly by mutual agreement of the parties, acting reasonably. No change in the Services shall be performed, effective, or paid for by Red River College unless confirmed in writing by the parties.
5. Restriction on Other Work
While this Agreement is in effect, the Vendor and its officers, employees, partners and agents shall not provide services to any other person, firm, corporation or organization in a manner that interferes or conflicts with the proper performance of the Vendor’s obligations under this Agreement.
6. Independent Contractor
The Vendor is an independent contractor, and this Agreement does not create the relationship of employer and employee, of principal and agent, of joint venture, or of partnership between Red River College and the Vendor or between Red River College and any officers, employees or agents of the Vendor.
The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever.
The Vendor is responsible for any deductions or remittances, which may be required by law.
Except as authorized in this Agreement, the Vendor shall not incur any expenses or debts on behalf of, nor make any commitments for Red River College without first obtaining written permission from Red River College.
7. Vendor’s Fees
The Vendor shall provide invoices to Red River Collegemonthly accompanied with a detailed summary billing format. All deliverables must be submitted to Red River College prior to the submission of an invoice. All invoices shall be in writing and satisfactory to Red River College, acting reasonably, in both form and content. The Vendor shall also provide to Red River College such supporting documents, vouchers, statements and receipts as may be requested by Red River College acting reasonably.
Red River College shall pay the Vendor invoices due within thirty (30) days after the receipt and approval of an invoice and any supporting materials requested under Section 7.1. In the event any invoice is not satisfactory, Red River College shall notify the Vendor of the problem within seven (7) days of receipt of the invoice.
Those invoiced amounts not paid by Red River College within thirty (30) days of receipt and approval, shall bear interest from the thirty-first (31st) day at the prime rate in effect on that day at the Winnipeg main branch of the Bank of Montreal.
Red River College shall pay the Vendor’s fees as set out in the RFP and shall not be responsible for payment of any other expenses incurred by the Vendor in the performance of this Agreement except as may be expressly agreed in the RFP or the Proposal.
Where not tax-exempt, Red River College shall also pay all applicable sales and use taxes including Provincial Retail Sales Tax and Goods and Services Tax. Where tax-exempt, Red River College shall provide the Vendor with the applicable exemption number and/or certificate as required.
8. Disclosure of Information
Throughout the term, the parties each agree to use and disclose personal information in the manner prescribed by law.
The parties acknowledge that monetary damages may not be a sufficient remedy for the unauthorized use or disclosure of personal information, and that either party may, without waiving any other rights or remedies, seek appropriate injunctive or equitable relief from a court of competent jurisdiction.
If one party receives a subpoena or other validly issued administrative or judicial order seeking personal information, such party shall provide prompt notice to the other party and tender a copy of its proposed response to the demand. Unless the demand has been time-limited, quashed or extended, the party in receipt of the subpoena or order shall thereafter be entitled to comply with the demand to the extent permitted or required by law. If so requested by the party that is not in receipt of the subpoena or order, and at the sole expense of such non-receiving party, the party in receipt of the subpoena or order shall cooperate with the non-receiving party in the defense of the demand.
The Vendor undertakes not to publish any public statement or advertisement with respect to this Agreement, or the Services to be provided pursuant to this Agreement, and further undertakes not to seek publicity, through any media, with respect to this Agreement or the Services to be provided pursuant to this Agreement, without the express prior written consent of Red River College.
9. Assistance from Red River College
Red River College agrees to make reasonably available to the Vendor such documents, records and assistance from officers and employees of Red River College as may, in the reasonable opinion of Red River College, be necessary to assist the Vendor in the performance of the Agreement.
10. Indemnification of Red River College
The Vendor covenants and agrees to indemnify and save Red River College harmless of and from any and all losses, claims, damages, causes of action, demands or liabilities arising out of this Agreement by virtue of:
- the default of the Vendor of any term of this Agreement; or
- any negligent or willful act or omission of the Vendor; or
- any claim resulting from any officers, employees, partners, sub-contractors, agents, or volunteers of the Vendor; or
- any personal injuries (including death), economic losses, damage or loss of property suffered by Red River College or its officers, employees and agents caused by or related to the Vendor’s performance of this Agreement.
The above includes all costs and expenses associated therewith, including reasonable solicitors’ fees.
11. Suspension or Extension
Red River College may, at its sole option, from time to time, delay or suspend the Services being provided under this Agreement, in whole or in part, for such period of time as may, in the opinion of Red River College, be necessary. Red River College shall provide fourteen (14) days prior written notice to the Vendor of its intention to delay or suspend the Services. Red River College shall not be obliged to make payments to the Vendor except with respect to those Services already satisfactorily performed.
In addition to the rights set out at 1.1 hereto, Red River College may, at its sole option, extend the time in which the Services are to be provided in writing if necessary by reason of circumstances beyond the control of the Vendor or through no fault of the Vendor.
Where there is a delay or suspension pursuant to Section 11.1 or an extension of time pursuant to Section 11.2, all terms and conditions of this Agreement shall continue in full force and effect against the Vendor. The Vendor shall not be entitled to make any claim for damages by reason of the delay, suspension or extension.
Red River College may terminate this Agreement at any time by giving thirty (30) days prior notice in writing to the Vendor.
In addition to its rights under Section 12.1 above, and without restricting any other remedies available, Red River College may, at its sole option, immediately terminate this Agreement in writing if:
- the Vendor makes an assignment for the benefit of creditors or takes any other action for the benefit of creditors, becomes bankrupt or insolvent, or takes the benefit of or becomes subject to any legislation in force relating to bankruptcy and insolvency;
- in the opinion of Red River College, the Services provided by the Vendor are unsatisfactory, inadequate, or are improperly performed;
- in the opinion of Red River College, the Vendor has failed to comply with any other term or condition of the Agreement.
Upon termination of this Agreement, the Vendor shall cease to perform any further Services. Red River College shall be under no obligation to the Vendor other than to pay, upon receipt of an invoice or statement and supporting documentation satisfactory to Red River College acting reasonably, such compensation as the Vendor may be entitled to receive under this Agreement for work satisfactorily completed up to the date of termination.
13. Survival of Terms
The terms and conditions contained in the Agreement that by their sense and context are intended to survive the performance of the Agreement by the parties shall so survive the completion and performance, suspension, cancellation or termination of the Agreement.
14. No Assignment of Agreement
Neither party shall assign or transfer this Agreement or any of the rights or obligations under this Agreement without first obtaining written permission from the other.
No assignment or transfer of this Agreement shall relieve either party of any obligations under this Agreement, except to the extent they are properly performed by such party’s permitted assigns.
This Agreement shall be binding upon the executors, administrators, heirs, successors and any permitted assigns of the parties.
15. Entire Agreement
This Agreement, including the Proposal and the RFP, attached hereto as Schedules, contain the entire agreement between the parties with respect to the subject matter hereof. There are no undertakings, representations, or promises, express or implied, other than those contained in this Agreement and none have been relied on.
No amendment or change to, or modification of this Agreement shall be valid unless it is in writing and signed by both parties.
If any provision of this Agreement is for any reason invalid, that provision shall be considered separate and severable from this Agreement, and the other provisions of this Agreement shall remain in force and continue to be binding upon the parties as though the invalid provision had never been included in the Agreement.
18. Applicable Law
This Agreement shall be interpreted, performed and enforced in accordance with the laws of Manitoba. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Manitoba and all courts competent to hear appeals therefrom.
19. Force Majeure
Neither party shall be responsible for any failure to comply with or for any delay in performance of the terms of this Agreement where such failure or delay is directly or indirectly caused by or results from events of force majeure beyond the control of either party. These events shall include, but not be limited to fire, flood, earthquake, pandemic, accident, civil disturbances, acts of terrorism, war, rationing, embargoes, strikes or lockouts, delays in transportation, inability to secure necessary materials, parts or components, delay or failure of performance of any supplier, acts of God, or acts of government. The time in which the Services are to be provided shall be extended by a period of time at least equal to the length of the force majeure event, provided that in the event the extended period of time exceeds, or is reasonably anticipated to exceed a period of fourteen (14) days, then Red River College may terminate this Agreement and pay the Vendor for all work performed to that point in time.
Any failure or delay by either party to exercise or partially exercise any right, power or privilege hereunder shall not be deemed a waiver of any of the rights, powers or privileges under this Agreement. The waiver by either party of a breach of any term, condition or provision of the Agreement shall not operate as, or be construed as, a waiver of any subsequent breach thereof.
Except as otherwise provided for in the Agreement, no remedy conferred by any of the specific provisions of the Agreement or available to a party is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under the Agreement, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
22. Agreement to Perform Necessary Acts
The Vendor agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of the Agreement.
In this Agreement, unless the context clearly otherwise requires:
- person includes individuals, firms or corporations;
- the singular includes the plural and vice versa; and
- the male gender includes the female gender and vice versa, and each includes the neuter gender and the neuter gender includes both the male and female genders.
Where there is a conflict between these terms and conditions and the Proposal, the provisions of these terms and conditions shall govern.
Should any provision of this Agreement require judicial interpretation, mediation or arbitration, it is agreed that the court, mediator or arbitrator interpreting or construing same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the Agreement.
Any notice or communication sent by registered mail shall be deemed to have been received on the third business day following the date of mailing. If mail service is disrupted by labour controversy, notice shall be delivered personally. Notice shall be given to Red River College at:
[insert contact info]
And to the Vendor at
[insert contact info]
25. Ownership of Information, etc.
All reports, information, data, research, documents, photographs and materials (the “Data”) discovered or produced by the Vendor, or any officers, employees or agents of the Vendor, in the performance of this Agreement, and all copyright therein, shall be the exclusive property of the College and shall be delivered without cost to the College upon request. The Vendor hereby waives all of its moral rights under the Copyright Act (Canada) in the Data in favour of the College and agrees to execute any additional documents, in a form satisfactory to the College, which may be required to evidence this waiver. The Vendor further agrees to obtain from each of its subcontractors and agents written waivers, in a form satisfactory to the College, of all their moral rights in the Data in favour of the College.
While this Agreement is in effect, and at all times thereafter, the Vendor and any officers, employees or agents of the Vendor, shall not use, publish or disclose any Data discovered or produced by the Vendor in the performance of this Agreement without first obtaining written permission from the College.
Any equipment, materials and supplies provided by the College to the Vendor for use in the performance of this Agreement shall remain the property of the College and shall be returned without cost to the College upon request.
The Vendor shall obtain and maintain in force until two (2) years after the completion of its obligations under this Agreement insurance of the following types, with limits not less than those set forth below as may be applicable:
- Workers’ Compensation Insurance through the Worker’s Compensation Board of Manitoba in the event that the Vendor shall carry out any work on College premises;
- Comprehensive General Liability Insurance with a minimum combined single limit of liability of $5,000,000 for each occurrence covering death, bodily injury, property damage and personal injury. Such policy shall have cross liability coverage, on terms acceptable to the College and a general aggregate limit of not less than $5,000,000. The College shall be named as additional insured on all comprehensive general liability insurance policies of the Vendor;
- if applicable, Automobile Liability Insurance covering use of all owned, non-owned and hired vehicles; and
- errors and omissions liability insurance with a minimum combined single limit of liability of $5,000,000 per occurrence, and to the extent that the Services are provided by a professional employee or employees who are working in the professional capacity, coverage against professional liability for a minimum amount of $5,000,000 per occurrence or claim, through their membership in a professional association or by a separate liability insurance policy satisfactory to the College;
The Vendor hereby releases the College, its affiliates and their respective officers, directors, agents, employees, licensees and invitees, and shall cause the Supplier’s insurers to waive any rights of subrogation and cross claims against the released Parties, for losses or claims for death, bodily injury, property damage or other insurance claims arising out of the Supplier’s performance of this Agreement. The foregoing insurance shall provide a severability clause to the effect that a breach by one insured will not adversely affect the coverage of the other insureds.
Prior to the Vendor commencing performance of the Services, in the event that the College requests, the Vendor shall provide College with Certificates of Insurance satisfactory in form to the College evidencing that the above insurance is in force, that all premiums due and owing have been paid by the Vendor, that not less than thirty (30) days written notice will be given the College prior to any cancellation or restrictive modification of the policies, that the waivers of subrogation and severability clauses are in force, and that all levies, assessments and penalties made against the Vendor pursuant to The Workers Compensation Act (Manitoba) have been paid by the Vendor. The Vendor shall also provide Red River College with the Certificates of Insurance executed copies of any additional insured endorsements required in this Agreement.
The foregoing insurance coverage shall be primary and non-contributing with respect to any other insurance or self-insurance which may be maintained by the College. The fact that the Vendor has obtained the insurance required in this Article 26 shall in no manner limit or qualify the Vendor’s other obligations or liabilities set forth in this Agreement. By requiring the foregoing minimum insurance coverage, the College is not representing that such amounts or types of insurance are adequate to cover all possible claims or losses that the Vendor may suffer and the College expressly disclaims such a representation. The Vendor acknowledges and agrees that it has the sole responsibility for determining the adequacy of its own insurance coverage.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the dates noted below.
Red River College