Services Agreement - Template, Sample Form to Complete Pro · EN-CA-law

SERVICES AGREEMENT
(Province of ________)

This Services Agreement (this "Agreement") is dated ________ and is made between:

________, a corporation incorporated under the laws of the Province of ________, having an address at:

________

(hereinafter the "Client"); and

________, a corporation incorporated under the laws of the Province of ________, having an address at:

________

(hereinafter the "Service Provider");

(each of them a "Party", and collectively, the "Parties").

WHEREAS the Client wishes to retain the Service Provider for the provision of certain services, as described hereinafter;

AND WHEREAS the Service Provider represents that it possesses the necessary skills, knowledge, experience and resources to render such services to the Client;

AND WHEREAS the Parties wish to record the terms and conditions upon which such services will be provided;

NOW THEREFORE in consideration of the mutual covenants and agreements set out herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

§ 1. Term

1.1 This Agreement commences on the date first written above and continues until midnight on the date of completion of the Services (as hereinafter defined) to the reasonable satisfaction of the Client, unless terminated earlier in accordance with the terms of this Agreement (the "Term").

§ 2. Performance of the Services

2.1 The Service Provider shall perform and complete the services described below (the "Services") in accordance with this Agreement and in a professional, careful, diligent and efficient manner consistent with generally accepted standards in the Service Provider's industry and to the reasonable satisfaction of the Client.

2.2 "Services" refers to the specific services that the Service Provider will provide to the Client under the terms and conditions of this Agreement, namely:

________

2.3 The Service Provider will perform and complete the Services at the following location:

________

(hereinafter the "Location").

2.4 The Service Provider represents, warrants and covenants that:

(a) it is competent and fully qualified to perform and complete the Services;

(b) it has the full right, power and authority to enter into this Agreement and there is no agreement, restriction or obligation by which it is bound that would in any way interfere with the Client's rights under this Agreement;

(c) subject to this Agreement, all persons employed or to whom responsibilities are delegated by the Service Provider (such persons, employees, subcontractors and agents being the "Workers") and assigned to perform the Services have the requisite qualifications, knowledge, skill and ability to perform such Services;

(d) all Workers to whom the Service Provider delegates responsibilities shall perform such responsibilities with professional skill, competence and quality workmanship; and

(e) the Service Provider shall keep the Client reasonably informed about the progress of the Services at reasonable intervals or as may be specifically requested by the Client.

§ 3. Client Obligations

3.1 During the provision of the Services, the Client shall:

(a) cooperate with the Service Provider in any manner the Service Provider may reasonably require;

(b) provide any information and documentation reasonably needed by the Service Provider that is relevant to the provision of the Services or payment for the Services;

(c) direct any staff or agents of the Client to cooperate with and assist the Service Provider as the Service Provider may reasonably require; and

(d) make available to the Service Provider, without fee or cost, any facilities reasonably required, which may include, without limitation, work space, computer access or other physical equipment.

§ 4. Fees and Payment

4.1 The Client will pay the following fee to the Service Provider for the Services: $________ (________), as a fixed fee for all Services rendered.

4.2 The Client agrees to pay the Service Provider the fees set out above, subject to the following terms and conditions:

(a) The Service Provider will invoice the Client at the following intervals: ________.

(b) The Client will pay each undisputed invoice of the Service Provider within the following period:

________

(c) The Service Provider will accept the following forms of payment:

________

(d) The Service Provider may charge for all reasonable and necessary costs and expenses incurred in performing the Services, subject to the Client's prior written approval.

(e) If the Client fails to pay any undisputed invoiced amount by the date stated in the invoice or as otherwise provided in this Agreement, the Service Provider may do any or all of the following:

(i) charge interest on the overdue amount at the rate of ________% (________ percent) per annum, calculated and compounded monthly, both before and after judgment, provided that such rate shall in no event exceed the maximum rate permitted under section 347 of the Criminal Code (Canada);

(ii) require the Client to pay for the Services, or any remaining part of the Services, in advance; and

(iii) suspend performance of the Services, in whole or in part, until payment is made.

(f) All charges payable under this Agreement are exclusive of any applicable goods and services tax, harmonized sales tax, provincial sales tax, or other taxes, surcharges or duties assessed by any governmental authority, which shall be the responsibility of the Party legally required to pay them.

§ 5. Independent Contractor

5.1 The Parties acknowledge and agree that the Service Provider is an independent contractor and not an employee, agent, partner or joint venturer of the Client. Nothing in this Agreement shall be construed as creating a relationship of employer and employee, principal and agent, or partnership between the Parties.

5.2 The Service Provider shall be solely responsible for the payment of all income taxes, contributions, premiums and remittances required by law in respect of the Service Provider and its Workers, including, without limitation, any amounts payable under applicable employment insurance, pension, workers' compensation and other statutory schemes. The Service Provider shall not be entitled to any of the benefits that the Client may provide to its employees and shall have no authority to bind or create any obligation on behalf of the Client except as expressly authorized in writing by the Client.

5.3 The Service Provider shall indemnify and hold harmless the Client from and against any liability, assessment, penalty or interest arising from any determination by a governmental authority that the Service Provider or any Worker is or was an employee of the Client.

§ 6. Workers and Replacement of Workers

6.1 The Service Provider may delegate responsibilities to the following Workers in order to assist in the provision of the Services:

________

6.2 The Service Provider warrants that all Workers are well trained, fully capable and fully competent to perform the Services.

6.3 The Service Provider is responsible and liable for the acts and omissions of all Workers to the same extent as it is responsible and liable for its own employees. The Service Provider shall inform the Workers of their obligations under this Agreement and shall ensure they comply with its applicable terms.

6.4 The Client may, acting reasonably and upon written notice, require the Service Provider to replace any Worker the Client deems unsuitable with another person of equal or superior skill, and such request shall not be construed as interference with the Service Provider's performance of the Services. Any Worker so deemed unsuitable shall not return to the Location without the prior written permission of the Client.

§ 7. Subcontracting

7.1 The Service Provider may only subcontract its obligations under this Agreement with the prior written consent of the Client, provided that (a) the third party to whom the obligations are subcontracted (the "Third Party Service Provider") agrees in writing to perform such obligations in accordance with, and subject to, the terms and conditions of this Agreement; and (b) the Service Provider remains solely responsible and liable for the obligations performed by each Third Party Service Provider as if such obligations were performed by the Service Provider itself.

§ 8. Warranty

8.1 The Service Provider represents and warrants that it will perform the Services using reasonable care and skill comparable to that of a competent service provider in the relevant field, and that any deliverables or materials provided by the Service Provider to the Client under this Agreement will not infringe or violate the intellectual property rights or any other rights of any third party.

8.2 The Service Provider warrants that the Services will be free of defects, deficiencies and problems for a period of twelve (12) months from the date of approved final completion.

8.3 If, in the reasonable opinion of the Client, defects, deficiencies or problems appear during the warranty period, the Service Provider shall promptly remedy, replace, re-perform or correct the Services at no cost to the Client within a reasonable timeframe.

8.4 If the Service Provider fails to respond or to remedy, replace, re-perform or correct the Services within a reasonable timeframe, the Client may remedy, replace, re-perform or correct the Services, and address any damage arising therefrom, by whatever means it reasonably chooses, and the reasonable cost thereof shall be paid by the Service Provider.

8.5 The Service Provider further warrants that any of the Services replaced, re-performed, remedied or corrected will be free of defects, deficiencies or problems for a further period of twelve (12) months from the date of completion of the required repair, re-performance, remedy or correction.

§ 9. Compliance with Laws

9.1 The Service Provider shall, at its sole expense and at all relevant times during the performance of the Services, comply with all applicable statutes, rules, orders, by-laws, ordinances and regulations of all governmental authorities, including, without limitation, applicable occupational health and safety, workers' compensation, privacy and employment legislation.

§ 10. Permits and Licences

10.1 The Service Provider shall procure, at its own expense, all permits and licences that may be required for the performance of the Services, and shall pay all customs, duties, excise, licence, occupation and other taxes that may become payable to any authority by reason of the performance of the Services, unless otherwise specifically agreed in writing.

§ 11. Limitation of Liability

11.1 Subject to § 11.2, the aggregate liability of either Party in contract, tort (including negligence), under statute or otherwise arising in connection with this Agreement shall be limited to the aggregate fees paid by the Client to the Service Provider under this Agreement.

11.2 Nothing in this Agreement limits or excludes the liability of either Party for fraud, fraudulent misrepresentation, wilful misconduct, gross negligence, death or personal injury caused by its negligence, or any other liability that cannot be limited or excluded by applicable law.

11.3 Neither Party shall be liable to the other for any indirect, incidental, consequential, special or punitive damages, including loss of profits or business opportunity, arising in connection with this Agreement.

§ 12. Confidentiality

12.1 Each Party acknowledges that in the course of this Agreement, the Recipient (as defined below) may have access to or be provided with information of a confidential or proprietary nature of the other Party, whether or not a Trade Secret, disclosed in oral, written or electronic form or otherwise learned by the Recipient under this Agreement, and copies that the Recipient is authorized to make hereunder (the "Confidential Information").

12.2 "Recipient" refers to the Party receiving the Confidential Information and "Discloser" refers to the Party disclosing the Confidential Information.

12.3 "Trade Secret" means a technique or process, a tool, mechanism or compound, a formula, pattern, device or a compilation of information that is used in a business, is known only to its owner and those employees who assisted in making it, and which gives the business a competitive advantage.

12.4 As a Recipient, a Party may use the Confidential Information solely for the purpose of performing or receiving the Services under this Agreement, and shall not disclose the Confidential Information to any third party during the Term or at any time after the expiry or termination of this Agreement, except as permitted herein.

12.5 The obligations under this § 12 will not apply to any Confidential Information that:

(a) the Recipient knew before learning it under this Agreement;

(b) is now, or becomes in the future, publicly available other than by an act or omission of the Recipient;

(c) a third party rightfully discloses to the Recipient without any confidentiality obligations; or

(d) the Recipient independently develops without use of or reference to the Confidential Information.

12.6 A Recipient may disclose Confidential Information to the extent required by law, regulation or order of a court or governmental authority of competent jurisdiction, provided that, where lawfully permitted, the Recipient gives the Discloser reasonable prior notice of such required disclosure.

12.7 For Confidential Information that is not a Trade Secret, each Party's obligations under this Agreement, as a Recipient, will expire two (2) years after expiry of the Term.

12.8 For Confidential Information that is a Trade Secret, each Party's obligations under this Agreement, as a Recipient, will be perpetual.

§ 13. Intellectual Property

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§ 14. Termination

14.1 This Agreement may be terminated by either Party, upon written notice:

(a) if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied, or that is capable of being remedied but is not remedied within fourteen (14) days after written notice requiring its remedy;

(b) if the other Party becomes unable to perform its duties hereunder, becomes insolvent, makes an assignment for the benefit of creditors, or has a receiver or trustee appointed over its assets; or

(c) if the other Party or its employees or agents engage in any conduct materially prejudicial to the business of the terminating Party, or where a material conflict or potential conflict of interest arises between the Parties.

14.2 The Service Provider may terminate this Agreement immediately upon written notice if the Client fails to pay any undisputed Fees within seven (7) days after the date they are due.

14.3 If this Agreement is terminated before the expiration of its Term, the Client shall pay for all Services rendered up to the date of termination, together with any expenditures reasonably and properly incurred by the Service Provider in connection with the Services prior to the date of termination and which cannot reasonably be cancelled.

14.4 Any termination shall not affect the accrued rights or liabilities of either Party and shall be without prejudice to any other rights or remedies. Any provision of this Agreement that is intended to survive termination shall remain in full force and effect.

§ 15. Force Majeure

15.1 Neither Party is responsible for any delay or failure to perform its obligations under this Agreement (other than an obligation to pay money) where such delay or failure is due to fire, explosion, flood, war, embargo, governmental action, act or order of a public authority, strike, public health emergency, communicable disease outbreak, or to any other cause beyond its reasonable control.

15.2 If a force majeure event continues for longer than thirty (30) days, the Client may terminate this Agreement, in whole or in part, without further liability, by providing written notice to the Service Provider.

§ 16. Delay

16.1 In the event of any delay by the Service Provider in the commencement, execution or completion of the Services that is not caused by the Client or by a force majeure event, no claim for additional payment or extension of time shall be made unless the Client, acting reasonably, authorizes otherwise in writing.

§ 17. Waiver

17.1 No failure or delay by a Party in exercising any right under this Agreement shall constitute a waiver of that right. Regardless of past conduct or practice, the Client may at any time insist upon strict compliance with the terms and conditions of this Agreement.

§ 18. Assignment

18.1 Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, such consent not to be unreasonably withheld.

§ 19. Amendment

19.1 This Agreement may only be amended by an agreement in writing signed by both Parties.

§ 20. Severability

20.1 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the Parties intend that a court shall:

(a) modify the provision to the minimum extent necessary to make it enforceable, or, if such modification is not permitted by law, disregard that provision;

(b) hold that the remainder of this Agreement remains in full force and effect as written;

(c) hold that any such provision remains as written in any circumstances other than those in which it is held to be unenforceable; and

(d) if modifying or disregarding the unenforceable provision would defeat an essential purpose of this Agreement, hold the entire Agreement unenforceable.

§ 21. Counterparts

21.1 This Agreement may be executed in any number of counterparts, each of which is deemed an original and all of which together constitute one and the same instrument. Delivery of an executed counterpart by facsimile or electronic transmission in portable document format (PDF) is as effective as delivery of an originally executed counterpart.

§ 22. Governing Law and Jurisdiction

22.1 This Agreement is governed by and construed in accordance with the laws of the Province of ________ and the laws of Canada applicable therein.

22.2 The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of ________ and all courts competent to hear appeals therefrom.

§ 23. Notices

23.1 Any notice required or permitted under this Agreement shall be in writing and delivered personally, by courier, or by email to the address of the relevant Party set out above (or to such other address as a Party may designate by notice), and shall be deemed received on the day of delivery if delivered on a business day, and otherwise on the next business day.

§ 24. Entire Agreement

24.1 This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements, understandings, negotiations and representations, whether written or oral.

The Parties are executing this Agreement on the date stated in the introductory clause.

________ (Client)

By: _____________________________________

Name: ________
Title: ________
Date: ________

________ (Service Provider)

By: _____________________________________
Name: ________
Title: ________
Date: ________