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Legal text for SACC item
Public Works and Government Services Canada
01 Interpretation
02 Standard Clauses and Conditions
03 Powers of Canada
04 Status of the Contractor
05 Conduct of the Work
06 Subcontracts
07 Specifications
08 Replacement of Specific Individuals
09 Time of the Essence
10 Excusable Delay
11 Inspection and Acceptance of the Work
12 Invoice Submission
13 Taxes
14 Transportation Charges
15 Payment Period
16 Interest on Overdue Accounts
17 Compliance with Applicable Laws
18 Ownership
19 Copyright
20 Translation of Documentation
21 Confidentiality
22 Government Property
23 Liability
24 Intellectual Property Infringement and Royalties
25 Amendment and Waivers
26 Assignment
27 Suspension of the Work
28 Default by the Contractor
29 Termination for Convenience
30 Accounts and Audit
31 Right of Set-off
32 Notice
33 Conflict of Interest and Values and Ethics Codes for the Public
Service
34 No Bribe or Conflict
35 Survival
36 Severability
37 Successors and Assigns
38 Contingency Fees
39 International Sanctions
40 Code of Conduct for Procurement
41 Harassment in the Workplace
42 Entire Agreement
2035 01 (2008-05-12) Interpretation
In the Contract, unless the context otherwise requires:
"Articles of Agreement" means the clauses and conditions incorporated in
full text or incorporated by reference from the Standard Acquisition
Clauses and Conditions Manual to form the body of the Contract; it does not
include these general conditions, any supplemental general conditions,
annexes, the Contractor's bid or any other document;
"Canada", "Crown", "Her Majesty" or "the Government" means Her Majesty the
Queen in right of Canada as represented by the Minister of Public Works and
Government Services and any other person duly authorized to act on behalf
of that minister or, if applicable, an appropriate minister to whom the
Minister of Public Works and Government Services has delegated his or her
powers, duties or functions and any other person duly authorized to act on
behalf of that minister;
"Contract" means the Articles of Agreement, these general conditions, any
supplemental general conditions, annexes and any other document specified
or referred to as forming part of the Contract, all as amended by agreement
of the Parties from time to time;
"Contracting Authority" means the person designated by that title in the
Contract, or by notice to the Contractor, to act as Canada's representative
to manage the Contract;
"Contractor" means the person, entity or entities named in the Contract to
supply goods, services or both to Canada;
"Contract Price" means the amount stated in the Contract to be payable to
the Contractor for the Work, exclusive of Goods and Services Tax and
Harmonized Sales Tax;
"Cost" means cost determined according to Contract Cost Principles 1031-2
as revised to the date of the bid solicitation or, if there was no bid
solicitation, the date of the Contract;
"Government Property" means anything supplied to the Contractor by or on
behalf of Canada for the purposes of performing the Contract and anything
acquired by the Contractor in any manner in connection with the Work, the
cost of which is paid by Canada under the Contract;
"Party" means Canada, the Contractor, or any other signatory to the
Contract and "Parties" means all of them;
"Specifications" means the description of the essential, functional or
technical requirements of the Work in the Contract, including the
procedures for determining whether the requirements have been met;
"Work" means all the activities, services, goods, equipment, matters and
things required to be done, delivered or performed by the Contractor under
the Contract.
2035 02 (2008-05-12) Standard Clauses and Conditions
Pursuant to the Department of Public Works and Government Services Act, S.C.
1996, c. 16, the clauses and conditions identified by number, date and
title in the Contract are incorporated by reference and form part of the
Contract as though expressly set out in the Contract.
2035 03 (2008-05-12) Powers of Canada
All rights, remedies, powers and discretions granted or acquired by Canada
under the Contract or by law are cumulative, not exclusive.
2035 04 (2008-05-12) Status of the Contractor
The Contractor is an independent contractor engaged by Canada to perform
the Work. Nothing in the Contract is intended to create a partnership, a
joint venture or an agency between Canada and the other Party or Parties.
The Contractor must not represent itself as an agent or representative of
Canada to anyone. Neither the Contractor nor any of its personnel is
engaged as an employee or agent of Canada. The Contractor is responsible
for all deductions and remittances required by law in relation to its
employees.
2035 05 (2008-05-12) Conduct of the Work
1. The Contractor represents and warrants that:
(a) it is competent to perform the Work;
(b) it has everything necessary to perform the Work, including
the resources, facilities, labour, technology, equipment, and
materials; and
(c) it has the necessary qualifications, including knowledge,
skill, know-how and experience, and the ability to use them
effectively to perform the Work.
2. The Contractor must:
(a) perform the Work diligently and efficiently;
(b) except for Government Property, supply everything necessary
to perform the Work;
(c) use, as a minimum, quality assurance procedures, inspections
and controls generally used and recognized by the industry to
ensure the degree of quality required by the Contract;
(d) select and employ a sufficient number of qualified people;
(e) perform the Work in accordance with standards of quality
acceptable to Canada and in full conformity with the
Specifications and all the requirements of the Contract;
(f) provide effective and efficient supervision to ensure that
the quality of workmanship meets the requirements of the
Contract.
3. The Work must not be performed by any person who, in the opinion of
Canada, is incompetent, unsuitable or has been conducting himself/
herself improperly.
4. All services rendered under the Contract must, at the time of
acceptance, be free from defects in workmanship and conform to the
requirements of the Contract. If the Contractor is required to
correct or replace the Work or any part of the Work, it will be at
no cost to Canada.
5. Canada's facilities, equipment and personnel are not available to
the Contractor to perform the Work unless the Contract specifically
provides for it. The Contractor is responsible for advising the
Contracting Authority in advance if it requires access to Canada's
facilities, equipment or personnel to perform the Work. The
Contractor must comply and ensure that its employees and
subcontractors comply with all security measures, standing orders,
policies or other rules in force at the site where the Work is
performed.
6. Unless the Contracting Authority orders the Contractor to suspend
the Work or part of the Work pursuant to section 27, the Contractor
must not stop or suspend the Work or part of the Work pending the
settlement of any dispute between the Parties about the Contract.
7. The Contractor must provide all reports that are required by the
Contract and any other information that Canada may reasonably
require from time to time.
8. The Contractor is fully responsible for performing the Work. Canada
will not be responsible for any negative consequences or extra costs
if the Contractor follows any advice given by Canada unless the
Contracting Authority provides the advice to the Contractor in
writing and includes a statement specifically relieving the
Contractor of any responsibility for negative consequences or extra
costs that might result from following the advice.
2035 06 (2008-05-12) Subcontracts
1. Except as provided in subsection 2, the Contractor must obtain the
Contracting Authority's written consent before subcontracting or
permitting the subcontracting of any part of the Work. A
subcontract includes a contract entered into by any subcontractor at
any tier to perform any part of the Work.
2. The Contractor is not required to obtain consent for subcontracts
specifically authorized in the Contract. The Contractor may also
without the consent of the Contracting Authority:
(a) purchase "off-the-shelf" items and any standard articles and
materials that are ordinarily produced by manufacturers in
the normal course of business;
(b) subcontract any incidental services that would ordinarily be
subcontracted in performing the Work;
(c) in addition to purchases and services referred to in
paragraphs (a) and (b), subcontract any part or parts of the
Work to one or more subcontractors up to a total value of 40
percent of the Contract Price; and
(d) permit its subcontractors at any tier to make purchases or
subcontract as permitted in paragraphs (a), (b) and (c).
3. In any subcontract other than a subcontract referred to in paragraph
2.(a), the Contractor must, unless the Contracting Authority agrees
in writing, ensure that the subcontractor is bound by conditions
compatible with and, in the opinion of the Contracting Authority,
not less favourable to Canada than the conditions of the Contract.
4. Even if Canada consents to a subcontract, the Contractor is
responsible for performing the Contract and Canada is not
responsible to any subcontractor. The Contractor is responsible for
any matters or things done or provided by any subcontractor under
the Contract and for paying any subcontractors for any part of the
Work they perform.
2035 07 (2008-05-12) Specifications
1. All Specifications provided by Canada or on behalf of Canada to the
Contractor in connection with the Contract belong to Canada and must
be used by the Contractor only for the purpose of performing the
Work.
2. If the Contract provides that Specifications furnished by the
Contractor must be approved by Canada, that approval will not
relieve the Contractor of its responsibility to meet all
requirements of the Contract.
2035 08 (2008-05-12) Replacement of Specific Individuals
1. If specific individuals are identified in the Contract to perform
the Work, the Contractor must provide the services of those
individuals unless the Contractor is unable to do so for reasons
beyond its control.
2. If the Contractor is unable to provide the services of any specific
individual identified in the Contract, it must provide a replacement
with similar qualifications and experience. The replacement must
meet the criteria used in the selection of the Contractor and be
acceptable to Canada. The Contractor must, as soon as possible,
give notice to the Contracting Authority of the reason for replacing
the individual and provide:
(a) the name, qualifications and experience of the proposed
replacement; and
(b) proof that the proposed replacement has the required security
clearance granted by Canada, if applicable.
3. The Contractor must not, in any event, allow performance of the Work
by unauthorized replacement persons. The Contracting Authority may
order that a replacement stop performing the Work. In such a case,
the Contractor must immediately comply with the order and secure a
further replacement in accordance with subsection 2. The fact that
the Contracting Authority does not order that a replacement stop
performing the Work does not relieve the Contractor from its
responsibility to meet the requirements of the Contract.
2035 09 (2008-05-12) Time of the Essence
It is essential that the Work be performed within or at the time stated in
the Contract.
2035 10 (2008-05-12) Excusable Delay
1. A delay in the performance by the Contractor of any obligation under
the Contract that is caused by an event that
(a) is beyond the reasonable control of the Contractor,
(b) could not reasonably have been foreseen,
(c) could not reasonably have been prevented by means reasonably
available to the Contractor, and
(d) occurred without the fault or neglect of the Contractor,
will be considered an "Excusable Delay" if the Contractor advises
the Contracting Authority of the occurrence of the delay or of the
likelihood of the delay as soon as the Contractor becomes aware of
it. The Contractor must also advise the Contracting Authority,
within fifteen (15) working days, of all the circumstances relating
to the delay and provide to the Contracting Authority for approval a
clear work around plan explaining in detail the steps that the
Contractor proposes to take in order to minimize the impact of the
event causing the delay.
2. Any delivery date or other date that is directly affected by an
Excusable Delay will be postponed for a reasonable time that will
not exceed the duration of the Excusable Delay.
3. However, if an Excusable Delay has continued for thirty (30) days or
more, the Contracting Authority may, by giving notice in writing to
the Contractor, terminate the Contract. In such a case, the Parties
agree that neither will make any claim against the other for damages,
costs, expected profits or any other loss arising out of the
termination or the event that contributed to the Excusable Delay.
The Contractor agrees to repay immediately to Canada the portion of
any advance payment that is unliquidated at the date of the
termination.
4. Unless Canada has caused the delay by failing to meet an obligation
under the Contract, Canada will not be responsible for any costs
incurred by the Contractor or any of its subcontractors or agents as
a result of an Excusable Delay.
5. If the Contract is terminated under this Section, the Contracting
Authority may require the Contractor to deliver to Canada, in the
manner and to the extent directed by the Contracting Authority, any
completed parts of the Work not delivered and accepted before the
termination and anything that the Contractor has acquired or
produced specifically to perform the Contract. Canada will pay the
Contractor:
(a) the value, of all completed parts of the Work delivered to
and accepted by Canada, based on the Contract Price,
including the proportionate part of the Contractor's profit
or fee included in the Contract Price; and
(b) the Cost to the Contractor that Canada considers reasonable
in respect of anything else delivered to and accepted by
Canada.
The total amount paid by Canada under the Contract to the date of
termination and any amounts payable under this subsection must not
exceed the Contract Price.
2035 11 (2008-05-12) Inspection and Acceptance of the Work
1. All the Work is subject to inspection and acceptance by Canada.
Inspection and acceptance of the Work by Canada do not relieve the
Contractor of its responsibility for defects or other failures to
meet the requirements of the Contract. Canada will have the right
to reject any Work that is not in accordance with the requirements
of the Contract and require its correction or replacement at the
Contractor's expense.
2. The Contractor must provide representatives of Canada access to all
locations where any part of the Work is being performed at any time
during working hours. Representatives of Canada may make
examinations and such tests of the Work as they may think fit. The
Contractor must provide all assistance and facilities, test pieces,
samples and documentation that the representatives of Canada may
reasonably require for the carrying out of the inspection. The
Contractor must forward such test pieces and samples to such person
or location as Canada specifies.
3. The Contractor must inspect and approve any part of the Work before
submitting it for acceptance or delivering it to Canada. The
Contractor must keep accurate and complete inspection records that
must be made available to Canada on request. Representatives of
Canada may make copies and take extracts of the records during the
performance of the Contract and for up to three (3) years after the
end of the Contract.
2035 12 (2008-05-12) Invoice Submission
1. Invoices must be submitted in the Contractor's name. The Contractor
must submit invoices for each delivery or shipment; invoices must
only apply to the Contract. Each invoice must indicate whether it
covers partial or final delivery.
2. Invoices must show:
(a) the date, the name and address of the client department, item
or reference numbers, deliverable and/or description of the
Work, contract number, Client Reference Number (CRN),
Procurement Business Number (PBN), and financial code(s);
(b) details of expenditures in accordance with the Basis of
Payment, exclusive of Goods and Services Tax (GST) or
Harmonized Sales Tax (HST) (such as item, quantity, unit of
issue, unit price, fixed time labour rates and level of
effort, subcontracts, as applicable);
(c) deduction for holdback, if applicable;
(d) the extension of the totals, if applicable; and
(e) if applicable, the method of shipment together with date,
case numbers and part or reference numbers, shipment charges
and any other additional charges.
3. If applicable, the GST or HST must be specified on all invoices as a
separate item. All items that are zero-rated, exempt or to which the
GST or HST does not apply, must be identified as such on all
invoices.
4. By submitting an invoice, the Contractor certifies that the invoice
is consistent with the Work delivered and is in accordance with the
Contract.
2035 13 (2008-12-12) Taxes
1. Municipal Taxes
Municipal Taxes do not apply.
2. Provincial Taxes
(a) Excluding legislated exceptions, federal government
departments and agencies are not required to pay any sales
tax payable to the province in which the taxable goods or
services are delivered. This exemption has been provided to
federal government departments and agencies under the
authority of one of the following:
(i) Provincial Sales Tax (PST) Exemption Licence Numbers,
for the provinces of:
Prince Edward Island OP-10000-250
Ontario 11708174G
Manitoba 390-516-0
British Columbia R005521
(ii) for Quebec, Saskatchewan, the Yukon Territory, the
Northwest Territories and Nunavut, an Exemption
Certification, which certifies that the goods or
services purchased are not subject to the provincial/
territorial sales and consumption taxes because they
are purchased by the federal government with Canada
funds for the use of the federal government.
(b) Currently, in Alberta, the Yukon Territory, the Northwest
Territories and Nunavut, there is no general PST. However,
if a PST is introduced in Alberta, the Yukon Territory, the
Northwest Territories or Nunavut, the sales tax exemption
certificate would be required on the purchasing document.
(c) Federal departments are required to pay the HST in the
participating provinces of Newfoundland and Labrador, Nova
Scotia and New Brunswick.
(d) The Contractor is not exempt from paying PST under the above
Exemption Licence Numbers or Exemption Certification. The
Contractor must pay the PST on taxable goods or services used
or consumed in the performance of the Contract (in accordance
with applicable provincial legislation), including material
incorporated into real property.
3. Changes to Taxes and Duties
If there is any change to any tax or duty payable to any level of
government in Canada after the bid submission date that affects the
costs of the Work to the Contractor, the Contract Price will be
adjusted to reflect the increase or decrease in the cost to the
Contractor. However, there will be no adjustment for any change
that increases the cost of the Work to the Contractor if public
notice of the change was given before bid submission date in
sufficient detail to have permitted the Contractor to calculate the
effect of the change on its cost. There will be no adjustment if
the change takes effect after the date required by the Contract for
delivery of the Work.
4. GST or HST
The estimated GST or HST, if applicable, is included in the total
estimated cost on page 1 of the Contract. The GST or HST is not
included in the Contract Price but will be paid by Canada as
provided in the Invoice Submission section above. The Contractor
agrees to remit to Canada Revenue Agency any amounts of GST and HST
paid or due.
5. Tax Withholding of 15 Percent
Pursuant to the Income Tax Act, 1985, c. 1 (5th Supp.) and the
Income Tax Regulations, Canada must withhold 15 percent of the
amount to be paid to the Contractor in respect of services provided
in Canada if the Contractor is a non-resident unless the Contractor
obtains a valid waiver. The amount withheld will be held on account
for the Contractor in respect to any tax liability which may be owed
to Canada.
2035 14 (2008-05-12) Transportation Charges
If transportation charges are payable by Canada under the Contract and the
Contractor makes the transportation arrangements, shipments must be made by
the most direct and economical means consistent with normal shipping
practice. The charges must be shown as a separate item on the invoice. The
federal government's policy of underwriting its own risks precludes payment
of insurance or valuation charges for transportation beyond the point at
which ownership of goods passes to the federal government (determined by
the FOB point or Incoterms). Where increased carrier liability is
available without charge, the Contractor must obtain the increased
liability for shipment.
2035 15 (2008-05-12) Payment Period
1. Canada's standard payment period is thirty (30) days. The payment
period is measured from the date an invoice in acceptable form and
content is received in accordance with the Contract or the date the
Work is delivered in acceptable condition as required in the
Contract, whichever is later. A payment is considered overdue on the
31st day following that date and interest will be paid automatically
in accordance with the section 16.
2. If the content of the invoice and its substantiating documentation
are not in accordance with the Contract or the Work is not in
acceptable condition, Canada will notify the Contractor within
fifteen (15) days of receipt. The 30-day payment period begins upon
receipt of the revised invoice or the replacement or corrected Work.
Failure by Canada to notify the Contractor within fifteen (15) days
will only result in the date specified in subsection 1 to apply for
the sole purpose of calculating interest on overdue accounts.
2035 16 (2008-12-12) Interest on Overdue Accounts
1. For the purpose of this section:
"Average Rate" means the simple arithmetic mean of the Bank Rates in
effect at 4:00 p.m. Eastern Time each day during the calendar month
immediately before the calendar month in which payment is made;
"Bank Rate" means the rate of interest established from time to time
by the Bank of Canada as the minimum rate at which the Bank of
Canada makes short term advances to members of the Canadian Payments
Association;
"date of payment" means the date of the negotiable instrument drawn
by the Receiver General for Canada to pay any amount under the
Contract;
an amount becomes "overdue" when it is unpaid on the first day
following the day on which it is due and payable according to the
Contract.
2. Canada will pay to the Contractor simple interest at the Average
Rate plus 3 percent per year on any amount that is overdue, from
the date that amount becomes overdue until the day before the date
of payment, inclusive. The Contractor is not required to provide
notice to Canada for interest to be payable.
3. Canada will pay interest in accordance with this section only if
Canada is responsible for the delay in paying the Contractor.
Canada will not pay interest on overdue advance payments.
2035 17 (2008-05-12) Compliance with Applicable Laws
1. The Contractor must comply with all laws applicable to the
performance of the Contract. The Contractor must provide evidence
of compliance with such laws to Canada at such times as Canada may
reasonably request.
2. The Contractor must obtain and maintain at its own cost all permits,
licenses, regulatory approvals and certificates required to perform
the Work. If requested by the Contracting Authority, the Contractor
must provide a copy of any required permit, license, regulatory
approvals or certificate to Canada.
2035 18 (2008-05-12) Ownership
1. Unless provided otherwise in the Contract, the Work or any part of
the Work belongs to Canada after delivery and acceptance by or on
behalf of Canada.
2. However if any payment is made to the Contractor for or on account
of any Work, either by way of progress or milestone payments, that
work paid for by Canada belongs to Canada upon such payment being
made. This transfer of ownership does not constitute acceptance by
Canada of the Work or any part of the Work and does not relieve the
Contractor of its obligation to perform the Work in accordance with
the Contract.
3. Despite any transfer of ownership, the Contractor is responsible for
any loss or damage to the Work or any part of the Work until it is
delivered to Canada in accordance with the Contract. Even after
delivery, the Contractor remains responsible for any loss or damage
to any part of the Work caused by the Contractor or any
subcontractor.
4. Upon transfer of ownership to the Work or any part of the Work to
Canada, the Contractor must, if requested by Canada, establish to
Canada's satisfaction that the title is free and clear of all claims,
liens, attachments, charges or encumbrances. The Contractor must
execute any conveyances and other instruments necessary to perfect
the title that Canada may require.
2035 19 (2008-05-12) Copyright
In this section, "Material" means anything that is created by the
Contractor as part of the Work under the Contract, that is required by the
Contract to be delivered to Canada and in which copyright subsists. "
Material" does not include anything created by the Contractor before the
date of the Contract.
Copyright in the Material belongs to Canada and the Contractor must include
the copyright symbol and either of the following notice on the Material: ©
Her Majesty the Queen in right of Canada (year) or © Sa Majesté la Reine du
chef du Canada (année).
The Contractor must not use, copy, divulge or publish any Material except
as is necessary to perform the Contract. The Contractor must execute any
conveyance and other documents relating to copyright in the Material as
Canada may require.
The Contractor must provide at the request of Canada a written permanent
waiver of moral rights, in a form acceptable to Canada, from every author
that contributed to the Material. If the Contractor is the author of the
Material, the Contractor permanently waives its moral rights in the
Material.
2035 20 (2008-05-12) Translation of Documentation
The Contractor agrees that Canada may translate in the other official
language any documentation delivered to Canada by the Contractor that does
not belong to Canada under section 19. The Contractor acknowledges that
Canada owns the translation and that it is under no obligation to provide
any translation to the Contractor. Canada agrees that any translation must
include any copyright notice and any proprietary right notice that was part
of the original. Canada acknowledges that the Contractor is not
responsible for any technical errors or other problems that may arise as a
result of the translation.
2035 21 (2008-05-12) Confidentiality
1. The Contractor must keep confidential all information provided to
the Contractor by or on behalf of Canada in connection with the Work,
including any information that is confidential or proprietary to
third parties, and all information conceived, developed or produced
by the Contractor as part of the Work when copyright or any other
intellectual property rights in such information belongs to Canada
under the Contract. The Contractor must not disclose any such
information without the written permission of Canada. The
Contractor may disclose to a subcontractor any information necessary
to perform the subcontract as long as the subcontractor agrees to
keep the information confidential and that it will be used only to
perform the subcontract.
2. The Contractor agrees to use any information provided to the
Contractor by or on behalf of Canada only for the purpose of the
Contract. The Contractor acknowledges that all this information
remains the property of Canada or the third party, as the case may
be. Unless provided otherwise in the Contract, the Contractor must
deliver to Canada all such information, together with every copy,
draft, working paper and note that contains such information, upon
completion or termination of the Contract or at such earlier time as
Canada may require.
3. Subject to the Access to Information Act, R.S.C. 1985, c. A-1 and to
any right of Canada under the Contract to release or disclose,
Canada must not release or disclose outside the Government of Canada
any information delivered to Canada under the Contract that is
proprietary to the Contractor or a subcontractor.
4. The obligations of the Parties set out in this section do not apply
to any information if the information:
(a) is publicly available from a source other than the other
Party; or
(b) is or becomes known to a Party from a source other than the
other Party, except any source that is known to be under an
obligation to the other Party not to disclose the information;
or
(c) is developed by a Party without use of the information of the
other Party.
5. Wherever possible, the Contractor must mark or identify any
proprietary information delivered to Canada under the Contract as "
Property of (Contractor's name), permitted Government uses defined
under Public Works and Government Services (PWGSC) Contract No.
(fill in Contract Number)". Canada will not be liable for any
unauthorized use or disclosure of information that could have been
so marked or identified and was not.
6. If the Contract, the Work, or any information referred to in
subsection 1 is identified as TOP SECRET, SECRET, CONFIDENTIAL, or
PROTECTED by Canada, the Contractor must at all times take all
measures reasonably necessary for the safeguarding of the material
so identified, including those set out in the PWGSC Industrial
Security Manual and its supplements and any other instructions
issued by Canada.
7. If the Contract, the Work, or any information referred to in
subsection 1 is identified as TOP SECRET, SECRET, CONFIDENTIAL, or
PROTECTED, by Canada, representatives of Canada are entitled to
inspect the Contractor's premises and the premises of a
subcontractor at any tier for security purposes at any time during
the term of the Contract. The Contractor must comply with, and
ensure that any subcontractor complies with, all written
instructions issued by Canada dealing with the material so
identified, including any requirement that employees of the
Contractor or of any subcontractor execute and deliver declarations
relating to reliability screenings, security clearances and other
procedures.
2035 22 (2008-05-12) Government Property
1. All Government Property must be used by the Contractor solely for
the purpose of the Contract and remains the property of Canada. The
Contractor must maintain adequate accounting records of all
Government Property and, whenever feasible, mark it as being the
property of Canada.
2. The Contractor must take reasonable and proper care of all
Government Property while it is in its possession or subject to its
control. The Contractor is responsible for any loss or damage
resulting from its failure to do so other than loss or damage caused
by ordinary wear and tear.
3. All Government Property, unless it is installed or incorporated in
the Work, must be returned to Canada on demand. All scrap and all
waste materials, articles or things that are Government Property
must, unless provided otherwise in the Contract, remain the property
of Canada and must be disposed of only as directed by Canada.
4. At the time of completion of the Contract, and if requested by the
Contracting Authority, the Contractor must provide to Canada an
inventory of all Government Property relating to the Contract.
2035 23 (2008-05-12) Liability
The Contractor is liable for any damage caused by the Contractor, its
employees, subcontractors, or agents to Canada or any third party. Canada
is liable for any damage caused by Canada, its employees or agents to the
Contractor or any third party. The Parties agree that no limitation of
liability or indemnity provision applies to the Contract unless it is
specifically incorporated in full text in the Articles of Agreement.
Damage includes any injury to persons (including injury resulting in death)
or loss of or damage to property (including real property) caused as a
result of or during the performance of the Contract.
2035 24 (2008-05-12) Intellectual Property Infringement and
Royalties
1. The Contractor represents and warrants that, to the best of its
knowledge, neither it nor Canada will infringe any third party's
intellectual property rights in performing or using the Work, and
that Canada will have no obligation to pay royalties of any kind to
anyone in connection with the Work.
2. If anyone makes a claim against Canada or the Contractor concerning
intellectual property infringement or royalties related to the Work,
that Party agrees to notify the other Party in writing immediately.
If anyone brings a claim against Canada, according to Canada's
Department of Justice Act, R.S., 1985, c. J-2, the Attorney General
of Canada must have the regulation and conduct of all litigation for
or against Canada, but the Attorney General may request that the
Contractor defend Canada against the claim. In either case, the
Contractor agrees to participate fully in the defence and any
settlement negotiations and to pay all costs, damages and legal
costs incurred or payable as a result of the claim, including the
amount of any settlement. Both Parties agree not to settle any
claim unless the other Party first approves the settlement in
writing.
3. The Contractor has no obligation regarding claims that were only
made because:
(a) Canada modified the Work or part of the Work without the
Contractor's consent or used the Work or part of the Work
without following a requirement of the Contract; or
(b) Canada used the Work or part of the Work with a product that
the Contractor did not supply under the Contract (unless that
use is described in the Contract or the manufacturer's
specifications); or
(c) the Contractor used equipment, drawings, specifications or
other information supplied to the Contractor by Canada (or by
someone authorized by Canada); or
(d) the Contractor used a specific item of equipment or software
that it obtained because of specific instructions from the
Contracting Authority; however, this exception only applies
if the Contractor has included the following language in its
own contract with the supplier of that equipment or software:
"[Supplier name] acknowledges that the purchased items will
be used by the Government of Canada. If a third party claims
that equipment or software supplied under this contract
infringes any intellectual property right, [supplier name],
if requested to do so by either [Contractor name] or Canada,
will defend both [Contractor name] and Canada against that
claim at its own expense and will pay all costs, damages and
legal fees payable as a result of that infringement."
Obtaining this protection from the supplier is the
Contractor's responsibility and, if the Contractor does not
do so, it will be responsible to Canada for the claim.
4. If anyone claims that, as a result of the Work, the Contractor or
Canada is infringing its intellectual property rights, the
Contractor must immediately do one of the following:
(a) take whatever steps are necessary to allow Canada to continue
to use the allegedly infringing part of the Work; or
(b) modify or replace the Work to avoid intellectual property
infringement, while ensuring that the Work continues to meet
all the requirements of the Contract; or
(c) take back the Work and refund any part of the Contract Price
that Canada has already paid.
If the Contractor determines that none of these alternatives can
reasonably be achieved, or if the Contractor fails to take any of
these steps within a reasonable amount of time, Canada may choose
either to require the Contractor to do (c), or to take whatever
steps are necessary to acquire the rights to use the allegedly
infringing part(s) of the Work itself, in which case the Contractor
must reimburse Canada for all the costs it incurs to do so.
2035 25 (2008-05-12) Amendment and Waivers
1. To be effective, any amendment to the Contract must be done in
writing by the Contracting Authority and the authorized
representative of the Contractor.
2. While the Contractor may discuss any proposed modifications to the
Work with other representatives of Canada, Canada will not be
responsible for the cost of any modification unless it has been
incorporated into the Contract in accordance with subsection 1.
3. A waiver will only be valid, binding or affect the rights of the
Parties if it is made in writing by, in the case of a waiver by
Canada, the Contracting Authority and, in the case of a waiver by
the Contractor, the authorized representative of the Contractor.
4. The waiver by a Party of a breach of any condition of the Contract
will not be treated or interpreted as a waiver of any subsequent
breach and therefore will not prevent that Party from enforcing of
that term or condition in the case of a subsequent breach.
2035 26 (2008-05-12) Assignment
1. The Contractor must not assign the Contract without first obtaining
the written consent of the Contracting Authority. Any assignment
made without that consent is void and will have no effect. The
assignment will be effective upon execution of an assignment
agreement signed by the Parties and the assignee.
2. Assignment of the Contract does not relieve the Contractor from any
obligation under the Contract and it does not impose any liability
upon Canada.
2035 27 (2008-05-12) Suspension of the Work
1. The Contracting Authority may at any time, by written notice, order
the Contractor to suspend or stop the Work or part of the Work under
the Contract for a period of up to one hundred eighty (180) days.
The Contractor must immediately comply with any such order in a way
that minimizes the cost of doing so. While such an order is in
effect, the Contractor must not remove any part of the Work from any
premises without first obtaining the written consent of the
Contracting Authority. Within these one hundred eighty (180) days,
the Contracting Authority must either cancel the order or terminate
the Contract, in whole or in part, under section 28 or section 29.
2. When an order is made under subsection 1, unless the Contracting
Authority terminates the Contract by reason of default by the
Contractor or the Contractor abandons the Contract, the Contractor
will be entitled to be paid its additional costs incurred as a
result of the suspension plus a fair and reasonable profit.
3. When an order made under subsection 1 is cancelled, the Contractor
must resume work in accordance with the Contract as soon as
practicable. If the suspension has affected the Contractor's
ability to meet any delivery date under the Contract, the date for
performing the part of the Work affected by the suspension will be
extended for a period equal to the period of suspension plus a
period, if any, that in the opinion of the Contracting Authority,
following consultation with the Contractor, is necessary for the
Contractor to resume the Work. Any equitable adjustments will be
made as necessary to any affected conditions of the Contract.
2035 28 (2008-05-12) Default by the Contractor
1. If the Contractor is in default in carrying out any of its
obligations under the Contract, the Contracting Authority may, by
giving written notice to the Contractor, terminate for default the
Contract or part of the Contract. The termination will take effect
immediately or at the expiration of a cure period specified in the
notice, if the Contractor has not cured the default to the
satisfaction of the Contracting Authority within that cure period.
2. If the Contractor becomes bankrupt or insolvent, makes an assignment
for the benefit of creditors, or takes the benefit of any statute
relating to bankrupt or insolvent debtors, or if a receiver is
appointed under a debt instrument or a receiving order is made
against the Contractor, or an order is made or a resolution passed
for the winding down of the Contractor, the Contracting Authority
may, to the extent permitted by the laws of Canada, by giving
written notice to the Contractor, immediately terminate for default
the Contract or part of the Contract.
3. If Canada gives notice under subsection 1 or 2, the Contractor will
have no claim for further payment except as provided in this section.
The Contractor will be liable to Canada for all losses and damages
suffered by Canada because of the default or occurrence upon which
the notice was based, including any increase in the cost incurred by
Canada in procuring the Work from another source. The Contractor
agrees to repay immediately to Canada the portion of any advance
payment that is unliquidated at the date of the termination.
4. Upon termination of the Contract under this section, the Contracting
Authority may require the Contractor to deliver to Canada, in the
manner and to the extent directed by the Contracting Authority, any
completed parts of the Work, not delivered and accepted before the
termination and anything the Contractor has acquired or produced
specifically to perform the Contract. In such a case, subject to the
deduction of any claim that Canada may have against the Contractor
arising under the Contract or out of the termination, Canada will
pay or credit to the Contractor:
(a) the value, of all completed parts of the Work delivered to
and accepted by Canada, based on the Contract Price,
including the proportionate part of the Contractor's profit
or fee included in the Contract Price; and
(b) the cost to the Contractor that Canada considers reasonable
in respect of anything else delivered to and accepted by
Canada.
The total amount paid by Canada under the Contract to the date of
the termination and any amount payable under this subsection must
not exceed the Contract Price.
5. Title to everything for which payment is made to the Contractor will,
once payment is made, pass to Canada unless it already belongs to
Canada under any other provision of the Contract.
6. If the Contract is terminated for default under subsection 1, but it
is later determined that grounds did not exist for a termination for
default, the notice will be considered a notice of termination for
convenience issued under subsection 1 of section 29.
2035 29 (2008-05-12) Termination for Convenience
1. At any time before the completion of the Work, the Contracting
Authority may, by giving notice in writing to the Contractor,
terminate for convenience the Contract or part of the Contract.
Once such a notice of termination for convenience is given, the
Contractor must comply with the requirements of the termination
notice. If the Contract is terminated in part only, the Contractor
must proceed to complete any part of the Work that is not affected
by the termination notice. The termination will take effect
immediately or, as the case may be, at the time specified in the
termination notice.
2. If a termination notice is given pursuant to subsection 1, the
Contractor will be entitled to be paid, for costs that have been
reasonably and properly incurred to perform the Contract to the
extent that the Contractor has not already been paid or reimbursed
by Canada. The Contractor will be paid:
(a) on the basis of the Contract Price, for all completed work
that is inspected and accepted in accordance with the
Contract, whether completed before, or after the termination
in accordance with the instructions contained in the
termination notice;
(b) the Cost to the Contractor plus a fair and reasonable profit
for all work terminated by the termination notice before
completion; and
(c) all costs incidental to the termination of the Work incurred
by the Contractor but not including the cost of severance
payments or damages to employees whose services are no longer
required, except wages that the Contractor is obligated by
statute to pay.
3. Canada may reduce the payment in respect of any part of the Work, if
upon inspection, it does not meet the requirements of the Contract.
4. The total of the amounts, to which the Contractor is entitled to be
paid under this section, together with any amounts paid, due or
becoming due to the Contractor must not exceed the Contract Price.
The Contractor will have no claim for damages, compensation, loss of
profit, allowance arising out of any termination notice given by
Canada under this section except to the extent that this section
expressly provides. The Contractor agrees to repay immediately to
Canada the portion of any advance payment that is unliquidated at
the date of the termination.
2035 30 (2008-05-12) Accounts and Audit
1. The Contractor must keep proper accounts and records of the cost of
performing the Work and of all expenditures or commitments made by
the Contractor in connection with the Work, including all invoices,
receipts and vouchers. The Contractor must retain records,
including bills of lading and other evidence of transportation or
delivery, for all deliveries made under the Contract.
2. If the Contract includes payment for time spent by the Contractor,
its employees, representatives, agents or subcontractors performing
the Work, the Contractor must keep a record of the actual time spent
each day by each individual performing any part of the Work.
3. Unless Canada has consented in writing to its disposal, the
Contractor must retain all the information described in this section
for six (6) years after it receives the final payment under the
Contract, or until the settlement of all outstanding claims and
disputes, whichever is later. During this time, the Contractor must
make this information available for audit, inspection and
examination by the representatives of Canada, who may make copies
and take extracts. The Contractor must provide all reasonably
required facilities for any audit and inspection and must furnish
all the information as the representatives of Canada may from time
to time require to perform a complete audit of the Contract.
4. The amount claimed under the contract, calculated in accordance with
the Basis of Payment provision in the Articles of Agreement, is
subject to government audit both before and after payment is made.
If an audit is performed after payment, the Contractor agrees to
repay any overpayment immediately on demand by Canada. Canada may
hold back, deduct and set off any credits owing and unpaid under
this section from any money that Canada owes to the Contractor at
any time (including under other contracts). If Canada does not
choose to exercise this right at any given time, Canada does not
lose this right.
2035 31 (2008-05-12) Right of Set-off
Without restricting any right of set-off given by law, Canada may set-off
against any amount payable to the Contractor under the Contract, any amount
payable to Canada by the Contractor under the Contract or under any other
current contract. Canada may, when making a payment pursuant to the
Contract, deduct from the amount payable to the Contractor any such amount
payable to Canada by the Contractor which, by virtue of the right of
set-off, may be retained by Canada.
2035 32 (2008-05-12) Notice
Any notice under the Contract must be in writing and may be delivered by
hand, courier, mail, facsimile or other electronic method that provides a
paper record of the text of the notice. It must be sent to the Party for
whom it is intended at the address stated in the Contract. Any notice will
be effective on the day it is received at that address. Any notice to
Canada must be delivered to the Contracting Authority.
2035 33 (2008-05-12) Conflict of Interest and Values and Ethics
Codes for the Public Service
The Contractor acknowledges that individuals who are subject to the
provisions of the Conflict of Interest Act, 2006, c. 9, s. 2, the Conflict
of Interest Code for Members of the House of Commons, the Values and Ethics
Code for the Public Service or all other codes of values and ethics
applicable within specific organizations cannot derive any direct benefit
resulting from the Contract.
2035 34 (2008-05-12) No Bribe or Conflict
1. The Contractor declares that no bribe, gift, benefit, or other
inducement has been or will be paid, given, promised or offered
directly or indirectly to any official or employee of Canada or to a
member of the family of such a person, with a view to influencing
the entry into the Contract or the administration of the Contract.
2. The Contractor must not influence, seek to influence or otherwise
take part in a decision of Canada knowing that the decision might
further its private interest. The Contractor must have no financial
interest in the business of a third party that causes or would
appear to cause a conflict of interest in connection with the
performance of its obligations under the Contract. If such a
financial interest is acquired during the period of the Contract,
the Contractor must immediately declare it to the Contracting
Authority.
3. The Contractor warrants that, to the best of its knowledge after
making diligent inquiry, no conflict exists or is likely to arise in
the performance of the Contract. In the event the Contractor
becomes aware of any matter that causes or is likely to cause a
conflict in relation to the Contractor's performance under the
Contract, the Contractor must immediately disclose such matter to
the Contracting Authority in writing.
4. If the Contracting Authority is of the opinion that a conflict
exists as a result of the Contractor's disclosure or as a result of
any other information brought to the Contracting Authority's
attention, the Contracting Authority may require the Contractor to
take steps to resolve or otherwise deal with the conflict or, at its
entire discretion, terminate the Contract for default. Conflict
means any matter, circumstance, interest, or activity affecting the
Contractor, its personnel or subcontractors, which may or may appear
to impair the ability of the Contractor to perform the Work
diligently and independently.
2035 35 (2008-05-12) Survival
All the Parties' obligations of confidentiality, representations and
warranties set out in the Contract as well as the provisions, which by the
nature of the rights or obligations might reasonably be expected to survive,
will survive the expiry or termination of the Contract.
2035 36 (2008-05-12) Severability
If any provision of the Contract is declared by a court of competent
jurisdiction to be invalid, illegal or unenforceable, that provision will
be removed from the Contract without affecting any other provision of the
Contract.
2035 37 (2008-05-12) Successors and Assigns
The Contract is to the benefit of and binds the successors and permitted
assignees of Canada and of the Contractor.
2035 38 (2008-12-12) Contingency Fees
The Contractor certifies that it has not directly or indirectly, paid or
agreed to pay and agrees that it will not, directly or indirectly, pay a
contingency fee for the solicitation, negotiation or obtaining of the
Contract to any person, other than an employee of the Contractor acting in
the normal course of the employee's duties. In this section, "contingency
fee" means any payment or other compensation that depends or is calculated
based on a degree of success in soliciting, negotiating or obtaining the
Contract and "person" includes any individual who is required to file a
return with the registrar pursuant to section 5 of the Lobbying Act, 1985,
c. 44 (4th Supplement).
2035 39 (2008-05-12) International Sanctions
1. Persons in Canada, and Canadians outside of Canada, are bound by
economic sanctions imposed by Canada. As a result, the Government
of Canada cannot accept delivery of goods or services that originate,
either directly or indirectly, from the countries or persons subject
to economic sanctions.
Details on existing sanctions can be found at:
http://www.dfait-maeci.gc.ca/trade/sanctions-en.asp.
2. The Contractor must not supply to the Government of Canada any goods
or services which are subject to economic sanctions.
3. The Contractor must comply with changes to the regulations imposed
during the period of the Contract. The Contractor must immediately
advise Canada if it is unable to perform the Work as a result of the
imposition of economic sanctions against a country or person or the
addition of a good or service to the list of sanctioned goods or
services. If the Parties cannot agree on a work around plan, the
Contract will be terminated for the convenience of Canada in
accordance with section 29.
2035 40 (2008-05-12) Code of Conduct for Procurement
The Contractor certifies that it has read the Code of Conduct for
Procurement (http://www.tpsgc-pwgsc.gc.ca/app-acq/cndt-cndct/index-eng.html)
and agrees to be bound by its terms.
2035 41 (2008-05-12) Harassment in the Workplace
1. The Contractor acknowledges the responsibility of Canada to ensure,
for its employees, a healthy work environment, free of harassment.
A copy of the Treasury Board policy, the Policy on the Prevention
and Resolution of Harassment in the Workplace which is also
applicable to the Contractor, is available on the Treasury Board Web
site.
2. The Contractor must not, either as an individual, or as a corporate
or unincorporated entity, through its employees or subcontractors,
harass, abuse, threaten, discriminate against or intimidate any
employee, contractor or other individual employed by, or under
contract with Canada. The Contractor will be advised in writing of
any complaint and will have the right to respond in writing. Upon
receipt of the Contractor's response, the Contracting Authority will,
at its entire discretion, determine if the complaint is founded and
decide on any action to be taken.
2035 42 (2008-05-12) Entire Agreement
The Contract constitutes the entire and only agreement between the Parties
and supersedes all previous negotiations, communications and other
agreements, whether written or oral, unless they are incorporated by
reference in the Contract. There are no terms, covenants, representations,
statements or conditions binding on the Parties other than those contained
in the Contract.