Form of Agreement Terms and Conditions - February 2016

Article 1 - Interpretation

1.01 Defined Terms
When used in the Contract, the following words or expressions have the following meanings:

“Authority” means any government authority, agency, body or department, whether federal, provincial or municipal, having or claiming jurisdiction over the Contract; and “Authorities” means all such authorities, agencies, bodies and departments;

"Business Day" means any working day, Monday to Friday inclusive, but excluding statutory holidays and other days on which Niagara Region has elected to be closed for business;

“Conflict of Interest” includes, but is not limited to, any situation or circumstance where (a) in relation to the procurement process, the Supplier had an unfair advantage or engaged in conduct, directly or indirectly, that may have given it an unfair advantage, including but not limited to (i) having access to information that is confidential to Niagara Region and not available to other bidders or proponents; (ii) communicating with any person with a view to influencing preferred treatment in the procurement process; or (iii) engaging in conduct that compromises or could be seen to compromise the integrity of the open and competitive procurement process; or (b) in relation to the performance of the Contract, the Supplier’s other commitments, relationships or financial interests (i) could or could be seen to exercise an improper influence over the objective, unbiased and impartial exercise of its independent judgment; or (ii) could or could be seen to compromise, impair or be incompatible with the effective performance of its contractual obligations;

“Deliverables” means everything developed for or provided to Niagara Region in the course of performing under the Contract or agreed to be provided to Niagara Region under the Contract by the Supplier or its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors, as further defined, but not limited by, Schedule 1, including but not limited to any goods or services or any and all Intellectual Property and any and all concepts, techniques, ideas, information, documentation and other materials, however recorded, developed or provided;

“Effective Date” is as set out in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions);

“Expiry Date” shall be earlier of the date specified in Paragraph E of Schedule 1 – Schedule of Deliverables, Rates and Specific Provisions for the end of the term and the date of any early termination in accordance with the provisions of this Contract;

“Indemnified Parties” means Niagara Region and Niagara Region’s elected officials, directors, officers, agents, employees and volunteers;

“Industry Standards” include, but are not limited to (a) the provision of any and all labour, supplies, equipment and other goods or services that are necessary and can reasonably be understood or inferred to be included within the scope of the Contract or customarily furnished by Persons providing Deliverables of the type provided hereunder in similar situations in Canada and; (b) adherence to commonly accepted norms of ethical business practices, which shall include the Supplier establishing, and ensuring adherence to, precautions to prevent its employees or agents from providing or offering gifts or hospitality of greater than nominal value to any person acting on behalf of or employed by Niagara Region;

“Intellectual Property” means any intellectual, industrial or other proprietary right of any type in any form protected or protectable under the laws of Canada, any foreign country, or any political subdivision of any country, including, without limitation, any intellectual, industrial or proprietary rights protected or protectable by legislation, by common law or at equity;

“MFIPPA” means the Municipal Freedom of Information and Protection of Privacy Act, Revised Statutes of Ontario 1990, Chapter M.56, as amended;

“Newly Created Intellectual Property” means any Intellectual Property created by the Supplier in the course of performance of its obligations under the Contract;

“Niagara Region Confidential Information” means all information of Niagara Region that is of a confidential nature, including all confidential information in the custody or control of Niagara Region, regardless of whether it is identified as confidential or not, and whether recorded or not, and however fixed, stored, expressed or embodied, which comes into the knowledge, possession or control of the Supplier in connection with the Contract. For greater certainty, Niagara Region Confidential Information shall: (a) include: (i) all new information derived at any time from any such information whether created by Niagara Region, the Supplier or any third-party; (ii) all information (including Personal Information) that Niagara Region is obliged, or has the discretion, not to disclose under provincial or federal legislation or otherwise at law; but (b) not include information that: (i) is or becomes generally available to the public without fault or breach on the part of the Supplier of any duty of confidentiality owed by the Supplier to Niagara Region or to any third-party; (ii) the Supplier can demonstrate to have been rightfully obtained by the Supplier, without any obligation of confidence, from a third-party who had the right to transfer or disclose it to the Supplier free of any obligation of confidence; (iii) the Supplier can demonstrate to have been rightfully known to or in the possession of the Supplier at the time of disclosure, free of any obligation of confidence when disclosed; or (iv) is independently developed by the Supplier; but the exclusions in this subparagraph shall in no way limit the meaning of Personal Information or the obligations attaching thereto under the Contract or at law;

“Niagara Region Representative” is as set out in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions);

“Person” if the context allows, includes any individuals, persons, firms, partnerships or corporations or any combination thereof;

“Personal Information” means recorded information about an identifiable individual or that may identify an individual;

“Personal Health Information” has the meaning assigned to it under PHIPA;

“PHIPA” means the Personal Health Information Protection Act, Statutes of Ontario 2004, Chapter 3, Schedule A, as amended;

“Proceeding” means any action, claim, demand, lawsuit, or other proceeding;

“Rates” means the applicable price, in Canadian funds, to be charged for the applicable Deliverables, as set out in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions);

“Record”, for the purposes of the Contract,means any recorded information, including any Personal Information or Personal Health Information, in any form: (a) provided by Niagara Region to the Supplier, or provided by the Supplier to Niagara Region, for the purposes of the Contract; or (b) created by the Supplier in the performance of the Contract;

“Requirements of Law” mean all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licences, authorizations, directions, and agreements with all Authorities that now or at any time hereafter may be applicable to either the Contract or the Deliverables or any part of them;

“Supplier Representative” is as set out in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions);

"Supplier’s Intellectual Property” means Intellectual Property owned by the Supplier prior to its performance under the Contract or created by the Supplier during the Term of the Contract independently of the performance of its obligations under the Contract;

“Term” is as set out in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions); and

“Third-party Intellectual Property” means any Intellectual Property owned by a party other than Niagara Region or the Supplier.

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Article 2 - General Provisions

2.01 No Indemnities from Niagara Region
Notwithstanding anything else in the Contract, any express or implied reference to Niagara Region providing an indemnity or any other form of indebtedness or contingent liability that would directly or indirectly increase the indebtedness or contingent liabilities of Niagara Region beyond the obligation to pay the Rates in respect of Deliverables accepted by Niagara Region, whether at the time of entering into the Contract or at any time during the Term, shall be void and of no legal effect.

2.02 Entire Contract
The Contract embodies the entire agreement between the parties with regard to the provision of the Deliverables and supersedes any prior understanding or agreement, collateral, oral or otherwise with respect to the provision of the Deliverables, existing between the parties at the Effective Date of the Contract.

2.03 Severability
If any term or condition of the Contract, or the application thereof to the parties or to any Persons or circumstances, is to any extent invalid or unenforceable, the remainder of the Contract, and the application of such term or condition to the parties, Persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby.

2.04 Failure to Enforce Not a Waiver
Any failure by Niagara Region to insist in one or more instances upon strict performance by the Supplier of any of the terms or conditions of the Contract shall not be construed as a waiver by Niagara Region of its right to require strict performance of any such terms or conditions, and the obligations of the Supplier with respect to such performance shall continue in full force and effect.

2.05 Changes By Written Amendment Only
Any changes to the Contract shall be by written amendment signed by the parties. No changes shall be effective or shall be carried out in the absence of such an amendment. Any such written changes shall be included in the definition of Contract.

2.06 Force Majeure
Neither party shall be liable for damages caused by delay or failure to perform its obligations under the Contract where such delay or failure is caused by an event beyond its reasonable control. The parties agree that an event shall not be considered beyond one’s reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as those contained in the Contract would have put in place contingency plans to either materially mitigate or negate the effects of such event. Without limiting the generality of the foregoing, the parties agree that force majeure events shall include natural disasters and acts of war, insurrection and terrorism but shall not include shortages or delays relating to supplies or services. If a party seeks to excuse itself from its obligations under this Contract due to a force majeure event, that party shall immediately notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds fifteen (15) Business Days, the other party may immediately terminate the Contract by giving notice of termination and such termination shall be in addition to the other rights and remedies of the terminating party under the Contract, at law or in equity.

2.07 Notices by Prescribed Means
Notices shall be in writing and shall be delivered by postage-prepaid envelope, personal delivery or email and shall be addressed to, respectively, Niagara Region Representative and the Supplier Representative. Notices shall be deemed to have been given: (a) in the case of postage-prepaid envelope, five (5) Business Days after such notice is mailed; or (b) in the case of personal delivery or email one (1) Business Day after such notice is received by the other party. In the event of a postal disruption, notices must be given by personal delivery or by email. Unless the parties expressly agree in writing to additional methods of notice, notices may only be provided by the methods contemplated in this paragraph.

2.08 Governing Law
The Contract shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.

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Article 3 - Relationship Between Niagara Region and Supplier

3.01 Supplier’s Power to Contract
The Supplier represents and warrants that it has the full right and power to enter into the Contract and there is no agreement with any other Person which would in any way interfere with the rights of Niagara Region under this Contract.

3.02 Representatives May Bind the Parties
The parties represent that their respective representatives have the authority to legally bind them to the extent permissible by the Requirements of Law.

3.03 Supplier Not a Partner, Agent or Employee
The Supplier shall have no power or authority to bind Niagara Region or to assume or create any obligation or responsibility, express or implied, on behalf of Niagara Region. The Supplier shall not hold itself out as an agent, partner or employee of Niagara Region. Nothing in the Contract shall have the effect of creating an employment, partnership or agency relationship between Niagara Region and the Supplier (or any of the Supplier’s directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors).

3.04 Non-Exclusive Contract, Work Volumes
The Supplier acknowledges that it is providing the Deliverables to Niagara Region on a non-exclusive basis. Niagara Region makes no representation regarding the volume of goods and services required under the Contract. Niagara Region reserves the right to contract with other parties for the same or similar goods and services as those provided by the Supplier and reserves the right to obtain the same or similar goods and services internally.

3.05 Responsibility of Supplier
The Supplier agrees that it is liable for the acts and omissions of its directors, officers, employees, agents, partners, affiliates, volunteers and subcontractors. This paragraph is in addition to any and all of the Supplier’s liabilities under the Contract and under the general application of law. The Supplier shall advise these individuals and entities of their obligations under the Contract and shall ensure their compliance with the applicable terms of the Contract. In addition to any other liabilities of the Supplier pursuant to the Contract or otherwise at law or in equity, the Supplier shall be liable for all damages, costs, expenses, losses, claims or actions arising from any breach of the Contract resulting from the actions of the above mentioned individuals and entities. This paragraph shall survive the termination or expiry of this Contract.

3.06 No Subcontracting or Assignment
The Supplier shall not subcontract or assign the whole or any part of the Contract or any monies due under it without the prior written consent of Niagara Region. Such consent shall be in the sole discretion of Niagara Region and subject to the terms and conditions that may be imposed by Niagara Region. Without limiting the generality of the conditions which Niagara Region may require prior to consenting to the Supplier’s use of a subcontractor, every contract entered into by the Supplier with a subcontractor shall adopt all of the terms and conditions of this Contract as far as applicable to those parts of the Deliverables provided by the subcontractor. Nothing contained in the Contract shall create a contractual relationship between any subcontractor or its directors, officers, employees, agents, partners, affiliates or volunteers and Niagara Region.

3.07 Duty to Disclose Change of Control
In the event that the Supplier undergoes a change in control the Supplier shall immediately disclose such change in control to Niagara Region and shall comply with any terms and conditions subsequently prescribed by Niagara Region resulting from the disclosure.

3.08 Conflict of Interest
The Supplier shall: (a) avoid any Conflict of Interest in the performance of its contractual obligations; (b) disclose to Niagara Region without delay any actual or potential Conflict of Interest that arises during the performance of its contractual obligations; and (c) comply with any requirements prescribed by Niagara Region to resolve any Conflict of Interest. In addition to all other contractual rights or rights available at law or in equity, Niagara Region may immediately terminate the Contract upon giving notice to the Supplier where: (a) the Supplier fails to disclose an actual or potential Conflict of Interest; (b) the Supplier fails to comply with any requirements prescribed by Niagara Region to resolve a Conflict of Interest; or (c) the Supplier’s Conflict of Interest cannot be resolved to the satisfaction of Niagara Region. This paragraph shall survive any termination or expiry of the Contract.

3.09 Contract Binding
The Contract can be enforced by and is binding upon the parties and their successors, executors, administrators and their permitted assigns.

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Article 4 - Performance by Supplier

4.01 Commencement of Performance
The Supplier shall commence performance upon receipt of written instructions from Niagara Region.

4.02 Deliverables Warranty
The Supplier hereby represents and warrants that the Deliverables (i) shall be provided fully and diligently in a professional and competent manner by persons qualified and skilled in their occupations; and (ii) shall be free from defects in material, workmanship and design, suitable for the purposes intended, in compliance with all applicable specifications and free from liens or encumbrance on title; and furthermore that all Deliverables shall be provided in accordance with: (a) the Contract; (b) Industry Standards; and (c) Requirements of Law. If any of the Deliverables, in the opinion of Niagara Region, are inadequately provided or require corrections, the Supplier shall forthwith make the necessary corrections at its own expense as specified by Niagara Region in a rectification notice.

4.03 Health and Safety
Without limiting the generality of section 4.02, the Supplier warrants and agrees that it has complied with and will comply with, and ensure that any subcontractors comply with, all applicable occupational health and safety laws and regulations in relation to the performance of the Supplier’s obligations under this Contract. The Supplier shall provide Niagara Region with evidence of the Supplier’s compliance with this section within ten (10) Business Days of being requested to do so.

4.04 Accessibility
Without limiting the generality of section 4.02, the Supplier shall comply with, and ensure that any subcontractors comply with, applicable accessibility laws, regulations and by-laws, including but not limited to the Ontarians with Disabilities Act, 2001 (ODA), the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), Ontario Regulation 429/07 (Accessibility Standards for Customer Service) and Ontario Regulation 191/11 (Integrated Accessibility Standards), during the term of the Contract.

Without limiting the generality of the foregoing, the Supplier shall ensure that all of its employees, agents, volunteers and any subcontractors who, as part of the Contract:(a) deal with members of the public or other third parties; or (b) participate in developing policies, practices and procedures governing the provision of goods or services to members of the public or other third parties, receive training about the provision of its goods or services to persons with disabilities. The Supplier shall ensure that such training includes, without limitation, a review of the purposes of the AODA and the requirements of Ontario Regulation 429/07.

Niagara Region reserves the right to inspect the Supplier’s training records relating to Ontario Regulation 429/07 and Ontario Regulation 191/11, which must describe its training policy and summarize the training, including to whom the training has been given and when the training was given. Niagara Region also reserves the right to require the Supplier to amend its training policies, practices and procedures if Niagara Region deems the training is not compliant with the requirements of Ontario Regulation 429/07 and Ontario Regulation 191/11.

4.05 Shipment of Goods
To the extent that the Deliverables include the shipment of goods to Niagara Region, all such goods shall be Delivered Duty Paid (DDP) (Incoterms 2010) to Niagara Region’s place of business or such other location as may be specified in the Contract. No transportation or delivery charges of any kind, including, without limitation, packing, storage, cartage or customs brokerage charges, shall be paid by Niagara Region, unless specifically agreed by Niagara Region in writing. The Deliverables will be suitably packed in such a manner as will ensure their safe transportation undamaged to their destination. The Deliverables will remain at the risk of the Supplier until the Deliverables are received by Niagara Region. Receipt of the Deliverables at Niagara Region’s location does not constitute acceptance of the Deliverables by Niagara Region. The Deliverables are subject to Niagara Region’s inspection and acceptance within a reasonable period of time after delivery. If any of the Deliverables, in the opinion of Niagara Region, are inadequately provided or require corrections, the Supplier shall make the necessary corrections at its own expense as specified by Niagara Region in a rectification notice.

4.06 Use and Access Restrictions
The Supplier acknowledges that unless it obtains specific written preauthorization from Niagara Region, any access to or use of Niagara Region property, technology or information that is not necessary for the performance of its contractual obligations with Niagara Region is strictly prohibited. The Supplier further acknowledges that Niagara Region may monitor the Supplier to ensure compliance with this paragraph. This paragraph is in addition to and shall not limit any other obligation or restriction placed upon the Supplier.

4.07 Notification by Supplier to Niagara Region
During the Term, the Supplier shall advise Niagara Region promptly of: (a) any contradictions, discrepancies or errors found or noted in the Contract; (b) supplementary details, instructions or directions that do not correspond with those contained in the Contract; and (c) any omissions or other faults that become evident and should be corrected in order to provide the Deliverables in accordance with the Contract and Requirements of Law.

4.08 Supplier to Comply With Reasonable Change Requests
Niagara Region may, in writing, request changes to the Contract, which may include altering, adding to, or deleting any of the Deliverables. The Supplier shall comply with all reasonable Niagara Region change requests and the performance of such request shall be in accordance with the terms and conditions of the Contract. If the Supplier is unable to comply with the change request, it shall promptly notify Niagara Region and provide reasons for such non-compliance. In any event, any such change request shall not be effective until a written amendment reflecting the change has been executed by the parties.

4.09 Pricing for Requested Changes
Where a Niagara Region change request includes an increase in the scope of the previously contemplated Deliverables, Niagara Region shall set out, in its change request, the proposed prices for the contemplated changes. Where the Rates in effect at the time of the change request (a) include pricing for the particular type of goods or services contemplated in the change request, the Supplier shall not unreasonably refuse to provide those goods or services at prices consistent with those Rates; or (b) are silent to the applicable price for the particular goods or services contemplated in the change request, the price shall be negotiated between Niagara Region and the Supplier within a reasonable period of time and in any event, such change request shall not become effective until a written amendment reflecting the change has been executed by the parties.

4.10 Performance by Specified Individuals Only
The Supplier agrees that to the extent that specific individuals are named in the Contract as being responsible for the provision of the Deliverables, only those individuals shall provide the Deliverables under the Contract. The Supplier shall not replace or substitute any of the individuals named in the Contract without the prior written approval of Niagara Region, which may not arbitrarily or unreasonably be withheld. Should the Supplier require the substitution or replacement of any of the individuals named in the Contract, it is understood and agreed that any proposed replacement must possess similar or greater qualifications than the individual named in the Contract. The Supplier shall not claim fees for any replacement individual greater than the Rates established under the Contract.

4.11 Niagara Region Rights and Remedies and Supplier Obligations Not Limited to Contract
The express rights and remedies of Niagara Region and obligations of the Supplier set out in the Contract are in addition to and shall not limit any other rights and remedies available to Niagara Region or any other obligations of the Supplier at law or in equity.

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Article 5 - Payment for Performance and Audit

5.01 Payment According to Contract Rates
Niagara Region shall, subject to the Supplier’s compliance with the provisions of the Contract, pay the Supplier for the Deliverables provided at the Rates established under the Contract.

5.02 Hold Back or Set Off
Niagara Region may hold back payment or set off against payment if, in the opinion of Niagara Region acting reasonably, the Supplier has failed to comply with any requirements of the Contract.

5.03 No Expenses or Additional Charges
There shall be no other charges payable by Niagara Region under the Contract to the Supplier other than the Rates established under the Contract.

5.04 Payment of Taxes and Duties
Unless otherwise stated, the Supplier shall pay all applicable taxes, including excise taxes incurred by or on the Supplier's behalf with respect to the Contract.

5.05 Withholding Tax
Niagara Region shall withhold any applicable withholding tax from amounts due and owing to the Supplier under the Contract and shall remit it to the appropriate government in accordance with applicable tax laws. This paragraph shall survive any termination or expiry of the Contract.

5.06 Interest on Late Payment
If a payment is in arrears through no fault of the Supplier, the interest charged by the Supplier, if any, for any late payment shall not exceed the Bank of Canada’s prime rate, in effect on the date that the payment went into arrears.

5.07 Document Retention and Audit
For seven (7) years after the Expiry Date or any date of termination of the Contract, the Supplier shall maintain all necessary records to substantiate (a) all charges and payments under the Contract and (b) that the Deliverables were provided in accordance with the Contract and with Requirements of Law. During the Term, and for seven (7) years after the Term, the Supplier shall permit and assist Niagara Region in conducting audits of the operations of the Supplier to verify (a) and (b) above. Niagara Region shall provide the Supplier with at least ten (10) Business Days prior notice of its requirement for such audit. The Supplier’s obligations under this paragraph shall survive any termination or expiry of the Contract.

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Article 6 - Confidentiality

6.01 Confidentiality and Promotion Restrictions
Any publicity or publications related to the Contract shall be at the sole discretion of Niagara Region. Niagara Region may, in its sole discretion, acknowledge the Deliverables provided by the Supplier in any such publicity or publication. The Supplier shall not make use of its association with Niagara Region without the prior written consent of Niagara Region. Without limiting the generality of this paragraph, the Supplier shall not, among other things, at any time directly or indirectly communicate with the media in relation to the Contract unless it has first obtained the express written authorization to do so by Niagara Region.

6.02 Niagara Region Confidential Information
During and following the Term, the Supplier shall: (a) keep all Niagara Region Confidential Information confidential and secure; (b) limit the disclosure of Niagara Region Confidential Information to only those of its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors who have a need to know it for the purpose of providing the Deliverables and who have been specifically authorized to have such disclosure; (c) not directly or indirectly disclose, destroy, exploit or use any Niagara Region Confidential Information (except for the purpose of providing the Deliverables, or except if required by order of a court or tribunal), without first obtaining: (i) the written consent of Niagara Region and (ii) in respect of any Niagara Region Confidential Information about any third-party, the written consent of such third-party; (d) provide Niagara Region Confidential Information to Niagara Region on demand; and (e) return all Niagara Region Confidential Information to Niagara Region before the end of the Term, with no copy or portion kept by the Supplier.

6.03 Restrictions on Copying
The Supplier shall not copy any Niagara Region Confidential Information, in whole or in part, unless copying is essential for the provision of the Deliverables. On each copy made by the Supplier, the Supplier must reproduce all notices which appear on the original.

6.04 Notice of Breach
The Supplier shall notify Niagara Region promptly upon the discovery of loss, unauthorized disclosure, unauthorized access or unauthorized use of Niagara Region Confidential Information.

6.05 Notice and Protective Order
If the Supplier or any of its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors become legally compelled to disclose any Niagara Region Confidential Information, the Supplier will provide Niagara Region with prompt notice to that effect in order to allow Niagara Region to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and it shall co-operate with Niagara Region and its legal counsel to the fullest extent. If such protective orders or other remedies are not obtained, the Supplier will disclose only that portion of Niagara Region Confidential Information which the Supplier is legally compelled to disclose, only to such person or persons to which the Supplier is legally compelled to disclose, and the Supplier shall provide notice to each such recipient (in co-operation with legal counsel for Niagara Region) that such Niagara Region Confidential Information is confidential and subject to non-disclosure on terms and conditions equal to those contained in the Contract and, if possible, shall obtain each recipient's written agreement to receive and use such Niagara Region Confidential Information subject to those terms and conditions.

6.06 Protection of Privacy
The Supplier shall adhere to or exceed the standards set in MFIPPA, PHIPA or any other relevant Ontario or federal privacy legislation or common law as may be passed or amended from time to time, as relates to the confidential and secure treatment, including collection, use, disclosure or retention, of Personal Information, Personal Health Information and Niagara Region Confidential Information which the Supplier comes into contact with in the course of performing its obligations under, or otherwise in connection with, the Contract.

6.07 MFIPPA Records and Compliance
The Supplier and Niagara Region acknowledge and agree that MFIPPA applies to and governs all Records and may require the disclosure of such Records to third parties. Furthermore, the Supplier agrees (a) to keep Records secure; (b) to provide Records to Niagara Region within seven (7) calendar days of being directed to do so by Niagara Region for any reason including an access request or privacy issue; (c) not to access any Personal Information unless Niagara Region determines, in its sole discretion, that access is permitted under MFIPPA and is necessary in order to provide the Deliverables; (d) not to directly or indirectly use, collect, disclose or destroy any Personal Information for any purposes that are not authorized by Niagara Region; (e) to ensure the security and integrity of Personal Information and keep it in a physically secure and separate location safe from loss, alteration, destruction or intermingling with other records and databases and to implement, use and maintain the most appropriate products, tools, measures and procedures to do so; (f) to restrict access to Personal Information to those of its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors who have a need to know it for the purpose of providing the Deliverables and who have been specifically authorized by a Niagara Region representative to have such access for the purpose of providing the Deliverables; (g) to implement other specific security measures that in the reasonable opinion of Niagara Region would improve the adequacy and effectiveness of the Supplier's measures to ensure the security and integrity of Personal Information and Records generally; and (h) that any confidential information supplied to Niagara Region may be disclosed by Niagara Region where it is obligated to do so under MFIPPA, by an order of a court or tribunal or pursuant to a legal proceeding and the provisions of this paragraph shall prevail over any inconsistent provisions in the Contract.

6.08 Injunctive and Other Relief
The Supplier acknowledges that breach of any provisions of this Article may cause irreparable harm to Niagara Region or to any third-party to whom Niagara Region owes a duty of confidence, and that the injury to Niagara Region or to any third-party may be difficult to calculate and inadequately compensable in damages. The Supplier agrees that Niagara Region is entitled to obtain injunctive relief (without proving any damage sustained by it or by any third-party) or any other remedy against any actual or potential breach of the provisions of this Article.

6.09 Survival
The provisions of this Article shall survive any termination or expiry of the Contract.

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Article 7 - Intellectual Property

7.01 Niagara Region Intellectual Property
The Supplier agrees that all Intellectual Property and every other right, title and interest in and to all concepts, techniques, ideas, information and materials, however recorded, (including images and data) provided by Niagara Region to the Supplier shall remain the sole property of Niagara Region at all times.

7.02 No Use of Niagara Region Insignia
The Supplier shall not use any insignia or logo of Niagara Region except where required to provide the Deliverables, and only if it has received the prior written permission of Niagara Region to do so.

7.03 Ownership of Intellectual Property
Niagara Region shall be the sole owner of any Newly Created Intellectual Property. The Supplier irrevocably assigns to and in favour of Niagara Region and Niagara Region accepts every right, title and interest in and to all Newly Created Intellectual Property in the Deliverables, immediately following the creation thereof, for all time and irrevocably waives in favour of Niagara Region all rights of integrity and other moral rights to all Newly Created Intellectual Property in the Deliverables, immediately following the creation thereof, for all time. To the extent that any of the Deliverables include, in whole or in part, the Supplier’s Intellectual Property, the Supplier grants to Niagara Region a licence to use that Supplier Intellectual Property in the manner contemplated in this Article, the total consideration for which shall be payment of the Rates to the Supplier by Niagara Region.

7.04 Supplier’s Grant of Licence
For those parts of the Deliverables that are Supplier Intellectual Property, the Supplier grants to Niagara Region a perpetual, world-wide, non-exclusive, irrevocable, transferable, royalty free, fully paid up right and licence: (a) to use, modify, reproduce and distribute, in any form, those Deliverables; and (b) to authorize other Persons, including agents, contractors or sub-contractors, to do any of the former on behalf of Niagara Region.

7.05 No Restrictive Material in Deliverables
The Supplier shall not incorporate into any Deliverables anything that would restrict the right of Niagara Region to modify, further develop or otherwise use the Deliverables in any way that Niagara Region deems necessary, or that would prevent Niagara Region from entering into any contract with any contractor other than the Supplier for the modification, further development of or other use of the Deliverables.

7.06 Supplier Representation and Warranty Regarding Third-Party Intellectual Property
The Supplier represents and warrants that the provision of the Deliverables shall not infringe or induce the infringement of any Third-party Intellectual Property rights. The Supplier further represents and warrants that it has obtained assurances with respect to any Supplier Intellectual Property and Third-party Intellectual Property that any rights of integrity or any other moral rights associated therewith have been waived.

7.07 Survival
The obligations contained in this Article shall survive the termination or expiry of the Contract.

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Article 8 - Indemnity and Insurance

8.01 Supplier Indemnity
The Supplier hereby agrees to indemnify and hold harmless the Indemnified Parties from and against any and all liability, loss, costs, damages and expenses (including legal, expert and consultant fees), causes of action, actions, claims, demands, lawsuits or other proceedings, (collectively, “Claims”), by whomever made, sustained, incurred, brought or prosecuted, including for breaches of confidentiality or privacy or Intellectual Property rights or for third party bodily injury (including death), personal injury and property damage, in any way based upon, occasioned by or attributable to anything done or omitted to be done by the Supplier, its subcontractors or their respective directors, officers, agents, employees, partners, affiliates, volunteers or independent contractors in the course of performance of the Supplier’s obligations under, or otherwise in connection with, the Contract. The Supplier further agrees to indemnify and hold harmless the Indemnified Parties for any incidental, indirect, special or consequential damages, or any loss of use, revenue or profit, by any person, entity or organization, including, without limitation, Niagara Region, claimed or resulting from such Claims. This indemnity shall be in addition to and not in lieu of any insurance to be provided by the Supplier in accordance with this Contract. The obligations contained in this paragraph shall survive the termination or expiry of the Contract.

8.02 Insurance

The Supplier hereby agrees to put in effect and maintain insurance for the Term, at its own cost and expense, with insurers having a secure A.M. Best rating of B + or greater, or the equivalent, all the necessary and appropriate insurance that a prudent person in the business of the Supplier would maintain including, but not limited to, the following:

(a) Commercial General Liability Insurance

Commercial General Liability insurance for all Deliverables to a limit of not less than five million dollars ($5,000,000) per occurrence.

The policy will be extended to include:

  • Bodily injury, death and property damage
  • Cross liability and severability of interest
  • Blanket contractual
  • Premises and operations
  • Personal and advertising injury
  • Broad form property damage
  • Products and completed operations
  • Owner’s and contractors protective
  • Non-owned Automobile to a limit of not less than two million dollars ($2,000,000)

The policy shall be endorsed to:

  • Include Niagara Region as an additional insured; and
  • Contain an undertaking by the insurers to give thirty (30) days prior written notice in the event that there is a material change in the foregoing policies or coverage affecting the Additional Insured(s) or cancellation of coverage before the expiration date of any of the foregoing policies.

(b) Automobile Insurance

Automobile Insurance (OAP1) for both owned and leased vehicles with inclusive limits of not less than two million dollars ($2,000,000).

Proof of automobile insurance will not be required if the Supplier provides a signed letter stating that they do not own or lease vehicles.

(c) Additional Insurance Requirements

Any other type of insurance specified in Schedule 1 (Schedule of Deliverables, Rates and Specific Provisions) or required elsewhere under the Contract.

All policies of insurance shall be written with an insurer licensed to do business in Ontario and be non-contributing with, and will apply only as primary and not excess to any other insurance or self-insurance available to Niagara Region.

8.03 Proof of Insurance
The Supplier shall provide Niagara Region with proof of the insurance required by this Contract in the form of valid certificates of insurance that reference this Contract and confirm the required coverage. The Supplier shall provide Niagara Region with renewal replacements on or before the expiry of any such insurance. Upon the request of Niagara Region, a copy of each insurance policy shall be made available to it. The Supplier shall ensure that each of its subcontractors obtains all the necessary and appropriate insurance that a prudent person in the business of the subcontractor would maintain and that Niagara Region and Indemnified Parties are named as additional insured with respect to any liability arising in the course of performance of the subcontractor's obligations under the subcontract for the provision of the Deliverables.

8.04 Workplace Safety and Insurance Act Coverage
The Supplier warrants and agrees that it has complied and will comply with all applicable workplace safety and insurance laws and regulations and, if the Supplier is subject to the Workplace Safety and Insurance Act (“WSIA”), will provide proof of valid WSIA coverage by means of a current clearance certificate (or other means acceptable to Niagara Region) to Niagara Region upon request. The Supplier covenants and agrees to pay when due, and to ensure that each of its subcontractors pays when due, all amounts required to be paid by it and its subcontractors under the WSIA during the Term, failing which Niagara Region shall have the right, in addition to and not in substitution for any other right it may have pursuant to the Contract or otherwise at law or in equity, to pay to the Workplace Safety and Insurance Board (the “WSIB”) any amount due pursuant to the WSIA and unpaid by the Supplier or its subcontractors and to deduct such amount from any amount due and owing from time to time to the Supplier pursuant to the Contract together with all costs incurred by Niagara Region in connection therewith. The Supplier further agrees to indemnify the Indemnified Parties for any and all liability, loss, costs, damages and expenses (including legal fees) or other charges in connection with the Supplier’s failure to comply with any applicable workplace safety and insurance laws or related to the Supplier’s status with the WSIB.

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Article 9 - Termination, Expiry and Extension

9.01 Immediate Termination of Contract
Niagara Region may immediately terminate the Contract upon giving notice to the Supplier where (a) the Supplier is adjudged bankrupt, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of the Supplier’s insolvency; (b) the Supplier breaches any provision in Article 6 (Confidentiality); (c) the Supplier breaches the Conflict of Interest paragraph in Article 3 (Nature of Relationship Between Niagara Region and Supplier); (d) the Supplier, prior to or after entering into the Contract, makes a material misrepresentation or omission or provides materially inaccurate information to Niagara Region; (e) the Supplier undergoes a change in control which adversely affects the Supplier’s ability to satisfy some or all of its obligations under the Contract; (f) the Supplier subcontracts for the provision of part or all of the Deliverables or assigns the Contract without first obtaining the written approval of Niagara Region; (g) the Supplier fails at any time during the duration of performance of the Contract to fully comply with the requirements of Article 8.04 or (h) the Supplier’s acts or omissions constitute a substantial failure of performance and the above rights of termination are in addition to all other rights of termination available at law, or events of termination by operation of law.

9.02 Dispute Resolution by Rectification Notice
Subject to the above paragraph, where the Supplier fails to comply with any of its obligations under the Contract, Niagara Region may issue a rectification notice to the Supplier setting out the manner and timeframe for rectification. Within seven (7) Business Days of receipt of that notice, the Supplier shall either: (a) comply with that rectification notice; or (b) provide a rectification plan satisfactory to Niagara Region and upon approval proceed diligently to comply with the approved plan within the timelines specified therein. If the Supplier fails to either comply with that rectification notice or provide a satisfactory rectification plan, Niagara Region may immediately terminate the Contract. Where the Supplier has been given a prior rectification notice, the same subsequent type of non-compliance by the Supplier shall allow Niagara Region to immediately terminate the Contract.

9.03 Termination on Notice
Niagara Region reserves the right to terminate the Contract, without cause, upon thirty (30) calendar days prior notice to the Supplier.

9.04 Supplier’s Obligations on Termination
On termination of the Contract, the Supplier shall, in addition to its other obligations under the Contract and at law (a) at the request of Niagara Region, provide Niagara Region with any completed or partially completed Deliverables; (b) provide Niagara Region with a report detailing: (i) the current state of the provision of Deliverables by the Supplier at the date of termination; and (ii) any other information requested by Niagara Region pertaining to the provision of the Deliverables and performance of the Contract; (c) execute such documentation as may be required by Niagara Region to give effect to the termination of the Contract; and (d) comply with any other instructions provided by Niagara Region, including but not limited to instructions for facilitating the transfer of its obligations to another Person. This paragraph shall survive any termination of the Contract.

9.05 Supplier’s Payment Upon Termination
On termination of the Contract, Niagara Region shall only be responsible for the payment of the Deliverables provided under the Contract up to and including the effective date of any termination. Termination shall not relieve the Supplier of its warranties and other responsibilities relating to the Deliverables performed or money paid. In addition to its other rights of hold back or set off, Niagara Region may hold back payment or set off against any payments owed if the Supplier fails to comply with its obligations on termination.

9.06 Termination in Addition to Other Rights
The express rights of termination in the Contract are in addition to and shall in no way limit any rights or remedies of Niagara Region under the Contract, at law or in equity.

9.07 Expiry and Extension of Contract
The Contract shall expire on the original Expiry Date, unless Niagara Region exercises its option to extend the Contract, such extension to be upon the same terms (including the Rates in effect at the time of extension), conditions and covenants contained in the Contract, excepting the option to renew. The option shall be exercisable by Niagara Region giving notice to the Supplier not less than thirty (30) days prior to the original Expiry Date. The notice shall set forth the precise duration of the extension.

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