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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 Condition of Material
09 Replacement of Specific Individuals
10 Time of the Essence
11 Excusable Delay
12 Inspection and Acceptance of the Work
13 Invoice Submission
14 Taxes
15 Transportation charges
16 Shipment Documentation
17 Payment Period
18 Interest on Overdue Accounts
19 Compliance with Applicable Laws
20 Ownership
21 Warranty
22 Confidentiality
23 Use and Translation of Written Material
24 Government Property
25 Liability
26 Intellectual Property Infringement and Royalties
27 Records and Disclosure of Foreground Information
28 Ownership of Intellectual Property Rights in Foreground Information
29 Licenses to Intellectual Property Rights in Foreground and
Background Information
30 Contractor's Right to Grant Licenses
31 Waiver of Moral Rights
32 License to Intellectual Property Rights to Canada's Information
33 Transfer or License of Contractor's Rights
34 Transfer of Intellectual Property Rights Upon Termination of the
Contract for Default
35 Products Created Using the Foreground Information
36 Amendment and Waivers
37 Suspension of the Work
38 Default by the Contractor
39 Termination for Convenience
40 Accounts and Audit
41 Right of Set-off
42 Notice
43 Conflict of Interest and Values and Ethics Code for the Public
Service
44 No Bribe
45 Survival
46 Severability
47 Successors and Assigns
48 Contingency Fees
49 International Sanctions
50 Code of Conduct for Procurement
51 Entire Agreement
2040 01 (2008-05-12) Interpretation
1. 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;
"Background Information" means all Intellectual Property that is not
Foreground Information that is incorporated into the Work or
necessary for the performance of the Work and that is proprietary to
or the confidential information of the Contractor, its
subcontractors or any other third party;
"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;
"Deliverables" means any technical information, equipment, prototype,
or any other thing developed under the Contract that are expressly
required to be delivered by the Contractor in order to carry out its
obligations under the Contract;
"Firmware" means computer programs that are stored in integrated
circuits, read-only memory or other similar devices within the
hardware or other equipment;
"Foreground Information" means all Intellectual Property first
conceived, developed, produced or reduced to practice as part of the
Work under 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;
"Intellectual Property" means any information or knowledge of an
industrial, scientific, technical, commercial, literary, dramatic,
artistic or otherwise creative nature relating to the Work, whether
oral or recorded in any form or medium and whether or not subject to
copyright; this includes but is not limited to any inventions,
designs, methods, processes, techniques, know-how, show-how, models,
prototypes, patterns, samples, schematics, experimental or test data,
reports, drawings, plans, specifications, photographs, manuals and
any other documents, Software, and Firmware;
"Intellectual Property Right" means any intellectual property right
recognized by law, including any intellectual property right
protected by legislation such as patents, copyright, industrial
design, integrated circuit topography, and plant breeders' rights,
or subject to protection under the law as trade secrets and
confidential information;
"Party" means Canada, the Contractor, or any other signatory to the
Contract and "Parties" means all of them;
"Software" means any computer program whether in source or object
code (including Firmware), any computer program documentation
recorded in any form or upon any medium, and any computer database,
including any modification;
"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.
2. References in these general conditions to the Contractor owning the
Foreground Information or any rights in it refer to the Contractor,
its subcontractors, its suppliers, its agents, its representatives
or any of their employees owning such information or rights, as the
case may be.
2040 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.
2040 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.
2040 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.
2040 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 on the Work 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 performed 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 must 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 37, 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.
2040 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.
2040 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.
2040 08 (2008-05-12) Condition of Material
Unless provided otherwise in the Contract, material supplied must be new
and conform to the latest issue of the applicable drawing, specifications
and part number that is in effect on the bid closing date or, if there was
no bid solicitation, the date of the Contract.
2040 09 (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.
2040 10 (2008-05-12) Time of the Essence
It is essential that the Work be performed within or at the time stated in
the Contract.
2040 11 (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.
2040 12 (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.
2040 13 (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.
2040 14 (2008-05-12) 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, R.S.C. 1985, c. 1 (5th Supp.), Canada must
withhold an amount of 15 percent of the price to be paid to the Contractor
in respect of services provided in Canada if the Contractor is a
non-resident. This amount will be held on account with respect to any
liability which may be owed to Canada.
2040 15 (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.
2040 16 (2008-05-12) Shipment Documentation
For the shipment of goods, the transportation bill of lading must accompany
the original invoice, except for "collect" shipments (if and when
stipulated), in which event it must accompany the shipment. In addition, a
packing slip must accompany each shipment, showing item, quantity, part or
reference numbers, description of the goods and contract number, including
the CRN and PBN. If the goods have been inspected at the Contractor's
plant, the signed inspection voucher must be attached to the packing slip
normally enclosed in the packing note envelope.
2040 17 (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 section 18.
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.
2040 18 (2008-05-12) 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 Standard 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.
2040 19 (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.
2040 20 (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.
2040 21 (2008-05-12) Warranty
1. Despite inspection and acceptance of the Work by or on behalf of
Canada and without restricting any other provision of the Contract
or any condition, warranty or provision imposed by law, the
Contractor warrants that, for twelve (12) months (or any other
period stated in the Contract), the Work will be free from all
defects in design, material or workmanship, and will conform to the
requirements of the Contract. The warranty period begins on the
date of delivery, or if acceptance takes place at a later date, the
date of acceptance. With respect to Government Property not
supplied by the Contractor, the Contractor's warranty will extend
only to its proper incorporation into the Work.
2. In the event of a defect or non-conformance in any part of the Work
during the warranty period, the Contractor, at the request of Canada
to do so, must as soon as possible repair, replace or otherwise make
good at its own option and expense the part of the Work found to be
defective or not in conformance with the requirements of the
Contract.
3. The Work or any part of the Work found to be defective or
non-conforming will be returned to the Contractor's plant for
replacement, repair or making good. However, when in the opinion of
Canada it is not expedient to remove the Work from its location, the
Contractor must carry out any necessary repair or making good of the
Work at that location. In such cases, the Contractor will be paid
the fair and reasonable Cost (including reasonable travel and living
expenses) incurred in so doing, with no allowance for profit, less
an amount equal to the Cost of rectifying the defect or
non-conformance at the Contractor's plant.
4. Canada must pay the transportation cost associated with returning
the Work or any part of the Work to the Contractor's plant pursuant
to subsection 3. The Contractor must pay the transportation cost
associated with forwarding the replacement or returning the Work or
part of the Work when rectified to the delivery point specified in
the Contract or to another location directed by Canada.
5. The Contractor must remedy all data and reports pertaining to any
correction or replacement under this section, including revisions
and updating of all affected data, manuals, publications, software
and drawings called for under the Contract, at no cost to Canada.
6. If the Contractor fails to fulfill any obligation described in this
section within a reasonable time of receiving a notice, Canada will
have the right to remedy or to have remedied the defective or
non-conforming work at the Contractor's expense. If Canada does not
wish to correct or replace the defective or non-conforming work, an
equitable reduction will be made in the Contract Price.
7. The warranty period is automatically extended by the duration of any
period or periods where the Work is unavailable for use or cannot be
used because of a defect or non-conformance during the original
warranty period. The warranty applies to any part of the Work
repaired, replaced or otherwise made good pursuant to subsection 2,
for the greater of:
(a) the warranty period remaining, including the extension; or
(b) ninety (90) days or such other period as may be specified for
that purpose by agreement between the Parties.
2040 22 (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 Canada (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.
2040 23 (2008-05-12) Use and Translation of Written Material
1. Unless provided otherwise in the Contract, copyright in any written
material used, produced or delivered under the Contract belongs to
its author or rightful owner. Canada has the right to use, copy and
disclose, for government purposes, the written material related to
the Work that is delivered to Canada.
2. If the Contract does not require the delivery of any written
material in both of Canada's official languages, Canada may
translate the written material into the other official language.
The Contractor acknowledges that Canada owns the rights on the
translation and that Canada is under no obligation to provide the
translation to the Contractor. Canada agrees that any translation
must include any copyright 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.
2040 24 (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.
2040 25 (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.
2040 26 (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.
2040 27 (2008-05-12) Records and Disclosure of Foreground
Information
1. During and after the performance of the Contract, the Contractor
must keep detailed records of the Foreground Information, including
details of its creation, ownership and about any sale or transfer of
any right in the Foreground Information. The Contractor must report
and fully disclose to Canada all Foreground Information as required
by the Contract. If the Contract does not specifically state when
and how the Contractor must do so, the Contractor must provide this
information when requested by the Contracting Authority or a
representative of the department or agency for which the Contract is
performed, whether before or after the completion of the Contract.
2. Before and after final payment to the Contractor, the Contractor
must provide Canada with access to all records and supporting data
that Canada considers pertinent to the identification of Foreground
Information.
3. For any Intellectual Property that was developed or created in
relation to the Work, Canada will be entitled to assume that it was
developed or created by Canada, if the Contractor's records do not
list that Intellectual Property or do not indicate that it was
created by the Contractor, or by someone on behalf of the Contractor,
other than Canada.
2040 28 (2008-05-12) Ownership of Intellectual Property Rights in
Foreground Information
1. All Intellectual Property Rights in the Foreground Information
belong to the Contractor as soon as they come into existence.
2. Despite the Contractor's ownership of all the Intellectual Property
Rights in the Foreground Information, Canada has unrestricted
ownership rights in any prototype, model, custom or customized
system or equipment that is a deliverable under the Contract,
including manuals and other operating and maintenance documents.
This includes the right to make them available for public use,
whether for a fee or otherwise, sell them or otherwise transfer
ownership in them.
3. Any personal information, as defined in the Privacy Act, R.S., 1985,
c. P-21, collected by the Contractor in the execution of the Work
under the Contract becomes the property of Canada immediately upon
collection and must be used only for the performance of the Work.
The Contractor has no right in any such personal information.
4. If the Work under the Contract involves the preparation of a
database or other compilation using information or data supplied by
Canada and any personal information referred to above, the
Intellectual Property Rights in the database or compilation
containing such information will belong to Canada. The Contractor's
Intellectual Property Rights in the Foreground Information are
restricted to those capable of being exploited without the use of
the information or data supplied by Canada and the personal
information.
5. The Contractor must maintain the confidentiality of the information
or data supplied by Canada and the personal information as required
in the General Conditions. The Contractor must return all the
information belonging to Canada on request or on completion or
termination of the Contract. This includes returning all hard
copies and electronic copies as well as any paper or electronic
record that contains any part of the information or information
derived from it.
2040 29 (2008-05-12) Licenses to Intellectual Property Rights in
Foreground and Background Information
1. As Canada has contributed to the cost of developing the Foreground
Information, the Contractor grants to Canada a license to exercise
all Intellectual Property Rights in the Foreground Information for
Canada's activities. Subject to any exception described in the
Contract, this license allows Canada to do anything that it would be
able to do if it were the owner of the Foreground Information, other
than exploit it commercially and transfer or assign ownership of it.
The Contractor also grants to Canada a license to use the Background
Information to the extent that it is reasonably necessary for Canada
to exercise fully all its rights in the deliverables and in the
Foreground Information.
2. These licenses are non-exclusive, perpetual, irrevocable, worldwide,
fully-paid and royalty-free. Neither license can be restricted in
any way by the Contractor providing any form of notice to the
contrary, including the wording on any shrink-wrap or click-wrap
license or any other kind of packaging, attached to any deliverable.
3. For greater certainty, Canada's licenses include, but are not
limited to:
(a) the right to disclose the Foreground and Background
Information to third parties bidding on or negotiating
contracts with Canada and to sublicense or otherwise
authorize the use of that information by any contractor
engaged by Canada solely for the purpose of carrying out such
contracts. Canada will require these third parties and
contractors not to use or disclose that information except as
may be necessary to bid on, negotiate or carry out those
contracts;
(b) the right to disclose the Foreground and Background
Information to other governments for information purposes;
(c) the right to reproduce, modify, improve, develop or translate
the Foreground and Background Information or have it done by
a person hired by Canada. Canada, or a person designated by
Canada, will own the Intellectual Property Rights associated
with the reproduction, modification, improvement, development
or translation.
(d) without restricting the scope of any license or other right
in the Background Information that Canada may otherwise hold,
the right, in relation to any custom-designed or
custom-manufactured part of the Work, to exercise such of the
Intellectual Property Rights in the Background Information as
may be required for the following purposes:
(i) for the use, operation, maintenance, repair or
overhaul of the custom-designed or custom-manufactured
parts of the Work;
(ii) in the manufacturing of spare parts for maintenance,
repair or overhaul of any custom-designed or
custom-manufactured part of the Work by Canada if those
parts are not available on reasonable commercial terms
to enable timely maintenance, repair or overhaul;
(e) for Software that is custom designed for Canada, the right to
use any source code the Contractor must deliver to Canada
under the Contract.
4. The Contractor agrees to make the Background Information, including
in the case of Software, the source code promptly available to
Canada for any purpose mentioned above. The license does not apply
to any Software that is subject to detailed license conditions that
are set out elsewhere in the Contract. Furthermore, in the case of
commercial off-the-shelf software, the Contractor's obligation to
make the source code promptly available to Canada applies only to
source code that is within the control of or can be obtained by the
Contractor or any subcontractor.
2040 30 (2008-05-12) Contractor's Right to Grant Licenses
The Contractor represents and warrants that it has the right to grant to
Canada the licenses and any other rights to use the Foreground and
Background Information. If the Intellectual Property Rights in any
Foreground or Background Information are or will be owned by a
subcontractor or any other third party, the Contractor must have or obtain
promptly a license from that subcontractor or third party that permits
compliance with section 29 or arrange, without delay, for the subcontractor
or third party to grant promptly any required license directly to Canada.
2040 31 (2008-05-12) Waiver of Moral Rights
If requested by Canada, during and after the Contract, the Contractor must
provide a written permanent waiver of moral rights, as defined in the
Copyright Act, R.S., 1985, c. C-42, from every author that contributes to
any Foreground Information subject to copyright protection that is a
deliverable to Canada under the Contract. If the Contractor is an author
of the Foreground Information, the Contractor permanently waives the
Contractor's moral rights in that Foreground Information.
2040 32 (2008-05-12) License to Intellectual Property Rights to
Canada's Information
1. Any information supplied by Canada to the Contractor for the
performance of the Work remains the property of Canada. The
Contractor must use Canada's Information only to perform the
Contract.
2. If the Contractor wants to use any information owned by Canada for
the commercial exploitation or further development of the Foreground
Information, the Contractor must obtain a license from the
department or agency for which the Contract is performed. In its
request for a license to that department or agency, the Contractor
must explain why the license is required and how the Contractor
intends to use the information. If the department or agency agrees
to grant a license, its terms will be negotiated between the
Contractor and that department or agency and may include the payment
of a compensation to Canada.
2040 33 (2008-05-12) Transfer or License of Contractor's Rights
1. During the Contract, the Contractor must not sell, transfer, assign
or license the Foreground Information without first obtaining the
Contracting Authority's written permission.
2. After the Contract, if the Contractor transfer ownership in the
Foreground Information, the Contractor is not required to obtain
Canada's permission, but must notify the department or agency for
whom the Contract is performed in writing of the transfer by
referring to the serial number of the Contract and its date and by
providing details about the transferee, including the conditions of
the transfer. The Contractor must ensure that the transfer requires
the transferee to notify the Canada of any future transfer. Any
transfer must be subject to all Canada's rights to use the
Foreground Information.
3. After the Contract, if the Contractor grants a license or any other
right (other than a transfer of ownership) to a third party to use
the Foreground Information, the Contractor is not required to notify
Canada, but the license or right granted must not affect Canada's
rights in any way.
4. If the Contractor at any time transfers ownership of or grants
rights in the Foreground Information that interfere in any way with
Canada's rights to use the Foreground Information, the Contractor
must, if requested by Canada, immediately take all steps necessary
to restore Canada's rights. If the Contractor is not successful in
doing so, within the time reasonably required by Canada, the
Contractor must immediately reimburse Canada for all costs Canada
incurs to do so itself.
2040 34 (2008-05-12) Transfer of Intellectual Property Rights upon
Termination of the Contract for Default
1. If Canada terminates the Contract in whole or in part for default,
Canada may, by giving notice to the Contractor, require the
Contractor to transfer to Canada all the Intellectual Property
Rights in the Foreground Information, including the rights owned by
subcontractors. In the case of Intellectual Property Rights in the
Foreground Information that have been sold or assigned to a third
party, the Contractor must pay to Canada on demand, at Canada's
discretion, the fair market value of the Intellectual Property
Rights in the Foreground Information or an amount equal to the
payment received by the Contractor from the sale or assignment of
the Intellectual Property Rights in the Foreground Information.
2. In the event of the issuance of a notice under subsection 1, the
Contractor must, at its own expense and without delay, execute such
documents relating to ownership of the Intellectual Property Rights
as Canada may require. The Contractor must, at Canada's expense,
provide all reasonable assistance in the preparation of applications
and in the prosecution of any applications for registration of any
Intellectual Property Rights in any jurisdiction, including the
assistance of the inventor in the case of an invention.
2040 35 (2008-05-12) Products created using the Foreground
Information
If the Contractor uses the Foreground Information to develop any new
product or any improvement in any existing product, the Contractor agrees
that, if Canada wishes to purchase such new or improved product, the
Contractor must sell them to Canada at a discount off the lowest price for
which it has sold those products to other customers, to recognize Canada's
financial contribution to the development of those products.
2040 36 (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.
2040 37 (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 38 or section 39.
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.
2040 38 (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 39.
2040 39 (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.
2040 40 (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.
2040 41 (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.
2040 42 (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.
2040 43 (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.
2040 44 (2008-05-12) No Bribe
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.
2040 45 (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.
2040 46 (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.
2040 47 (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.
2040 48 (2008-05-12) 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 Lobbyist
Registration Act, R.S. 1985, c. 44 (4th Supplement).
2040 49 (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 39.
2040 50 (2008-05-12) Code of Conduct for Procurement
The Contractor certifies that it has read the Code of Conduct for
Procurement and agrees to be bound by its terms.
2040 51 (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.