(STANDARD MODEL PROPOSED BY AQIII)
BETWEEN:CLIENT,a properly constituted legal person under the Quebec Business Corporations Act(Quebec), having its head office and principal place of business in ______, -city-, Province of Quebec, represented herein by ______, duly authorized to be party hereto, as stated;
ANDSERVICE PROVIDERINC., a properly constituted legal person under the Quebec Business Corporations Act (Quebec), having its head office and principal place of business in ______, -city-, Province of Quebec, represented herein by ______, duly authorized to be party hereto, as stated;
(hereafter: “Service Provider”)
WHEREAS Service Provider is a business specializing in the field of computing;
Add specific and/or technical clarifications related to the service provider’s particulararea of expertise if applicable.
WHEREAS Client seeks to retain the services of Service Provider because of its expertise in that particular field for work to be done for a given company (hereafter: “Client’s client”);
WHEREAS Service Provider agrees to provide said specialized services required by Client subject to the terms and conditions as outlined below;
WHEREAS it is the intention of the parties that their respective obligations be regulated and interpreted in accordance with the rules specific to business and/or service agreements as provided for in the Civil Code of Quebec, for all legal purposes and to the exclusion of any other incompatibleinterpretation;
WHEREAS it is in the interest of the parties hereto to record in writing the terms, modalities and conditions governing their business relationships in a private agreement.
IN CONSIDERATION OF THE ABOVE, THE PARTIES AGREE AS FOLLOWS:
The preamble is an integral part of this agreement.
Client is retaining the services of Service Provider to perform specific work in the field of computing for Client’s client, and Service Provider agrees to perform such work in compliance with the agreed upon specifications, as defined in Annex A, attached hereto.
In Annex A, include all relevant information concerning the specific work that will have to be done by the service provider.
- TERM OF AGREEMENT
This agreement shall take effect as of -start date- and terminate on -end date-.
When the present mandate expires, a new detailed service agreement, or at least a new annex, must be concluded by the parties for any additional separate mandate, if applicable. The mandate’s start and end dates must be specified in it.
Avoid any mention of automatic renewal of the agreement.
- SERVICE PROVIDER’S OBLIGATIONS
- Service Provider is fully responsible for properly performing the work assigned it herein.
- It agrees to act in the best interests of Client, exercising prudence and diligence, during performance of the work.
- It also agrees to do everything in accordance with applicable practices and rules in the field.
This agreement states that, as an independent business, the service provider is proficient in its field, and its work requires no supervision or guidance or control by a higher authority.
4.4.Service Provider assumes sole control and management of the related work described herein. It determines and selects the methods used, along with all operations, facts and actions performed or omitted in the performance of its obligations.
4.5.Service Provider agrees to provide, as circumstances permit, all the work tools needed to deliver its services.
4.6.Service Provider agrees to give Client, as circumstances permit, any useful information concerning the nature of the work it agrees to perform and the goods and times needed for that purpose.
4.7.Service Provider agrees to obtain and maintain for the term hereof all valid permits, licenses and other authorizations required to perform the work.
4.8.Service Provider agrees to obtain and maintain insurance covering its liability for the term of the agreement and provide any proof of the existence and validity of said insurance at Client’s request.
This clause is optional but might be required by the client.
4.9.Service Provider agrees at all times for the term hereof to respect all applicable laws and regulations.
4.10.Service Provider will be fully liable for any loss or damage caused to Client or to a third party due to its mistakes, omission, negligence, carelessness or delayed execution, or the total or partial non-performance of any of its obligations to Client.
Clause 4.10 may be mentioned or not insofar as it only informs the parties of an extra-contractual liability already set out in article 1457 of the Civil Code of Quebec.
4.11.Service Provider agrees to respect the delivery deadline agreed upon between the parties and as set forth in Annex A, and agrees to immediately inform Client of any delay that may affect the delivery date agreed upon between the parties.
- CLIENT’S OBLIGATIONS
- Client agrees to give Service Provider the necessary access to the place where the work is to be done and to the systems, especially any relevant and/or available information or data, such as access codes, access cards, etc.
- Client is required to receive the finished product at the end of the workperformed by Service Provider in accordance with the agreed upon specifications and as described in Annex A.
This clause, stipulated in the Civil Code of Quebec, obliges the client to recognize all the work done by the service provider once the latter has completed its delivery. The client’s confirmation, approval or assent is not required to establish the end and delivery of the work. As such, the client may not ignore or refuse the payment it must pay in compensation for performance of the work.
5.3.Nevertheless, Client reserves the right to refuse the delivery of any work that fails to comply with the agreed upon specifications, as set forth in Annex A, and will be able to demand that Service Provider, at its own expense, make all necessary corrections. In such case, the deadlines shall not be pushed back without Client’s assent, which assent may be refused at Client’s discretion. As a consequence, Client will be able to withhold payment of any invoice payable to Service Provider.
- FEES AND OTHER EXPENSES
- In consideration of the services delivered by Service Provider, Client agrees to pay it hourly fees based on the rate established below:
- Type Awork: $____.00 per hour
- Type Bwork: $_____.00 per hour.
It is also possible to include working for a lump sum (or fixed amount) without the hours being counted. In that case, clause 6.1 will have to be replaced by the following:
“In consideration of the services delivered by Service Provider, Client agrees to pay it a total fixed amount of ($$$) as payment for its fees.”
Or, in the case of using an agreed upon time bank:
“In consideration of the services delivered by Service Provider, Client agrees to pay it fees that do not exceed the agreed upon initial total amount of $______, representing approximately ______hours of work at the agreed upon rate. Any additional work required shall be covered by a prior written agreement concluded between the parties.”
6.2.The expenses required by and associated with performing the work described herein by Service Provider, such as travel expenses, the purchase of parts or fees for outside expertiseareClient’s responsibility and will be billed to it by Service Provider.An estimate of foreseeable expenses will be submitted to Clientby Service Providerfor approval before the start of work, and then, in a timely manner for special cases,but always before the expenses are incurred by Service Provider.
6.3.The fees and expenses described herein will be billed and sent to Client by Service Provider as the work progresses.
6.4.Said invoice shall be accompanied by a detailed account of the work done describing the services provided during that period and, if applicable, describing the expenses incurred by Service Provider under these terms and conditions.
6.5.All applicable taxes, including GST and TVQ, will be charged to Client on the amounts billed by Service Provider.
As an independent business, the service providerhas the legal obligation to collect from the client the applicable sales taxes, including the GST and TVQ.
- TERMS AND CONDITIONS OF PAYMENT
- All invoices issued by Service Provider in accordance with the terms and conditions of this agreement shall be paid by the latter within thirty (30) days following the date of receipt, failing which, the unpaid balance will bear interest at a rate of ___% a year.
- Service Provider agrees and undertakes to Client, for the term of this agreement and any renewal thereof, and for a period of one (1) year following its termination, not to solicit, do business with or attempt to do business with, at any location whatsoever, directly orindirectly and in any manner whatsoever, with Client’s clientduring the project being conducted.
- Also, Service Providershall not solicit or hire in any way, directly or indirectly, as an employee, consultant or any other title whatsoever, any of the employees, directors, executives or other people (hereafter collectively the “Employees” for the purposes of this article) working full or part time for Client (or Client’s client) at the time when the period of one (1) year begins or having thus workedin the twelve (12) months preceding that time, and in no way will attempt to, directly or indirectly, encourage one or other of said Employees to leave their job.
- For the purposes of the preceding provisions:
- Any member of Client’s (of Client’s client’s) personnel who agrees, during the above-mentioned period of prohibition, to work or provide any service whatsoever for monetary or other compensation to any person butClient (or Client’s client),in which the defaulting Service Providermight have, directly or indirectly, any interest, whether as an owner, investor, shareholder, director, employee or in another manner, will be construed to have been solicited;
- Any person having retained the Client’s services in the two (2) years preceding the start of the abovementioned period of prohibition will be construed to be a clientof Client;
- Service Provideracknowledges that any contravention on its part of this non solicitation agreement will result for it, without prejudiceto any other rights and remedies available to the intermediary, in the imposition of a penalty of one thousand dollars ($1,000.00)per day of violation of the performance of the obligations set forth in the provisions of articles 8.1 and 8.2 herein. Consequently, in the event of such failure confirmed by a court or by an arbitration board, Service Providershall give Clientthe amount of one thousand dollars ($1,000.00) per day of violation of the performance of the obligations, without prejudiceto the rights and remedies,Service Provider’s fees, injunction proceedings, damages or any other remedy related to such a violation or threat of violation.
The non-solicitationclauseis not mandatorybut strongly recommended. It is only given here as an example. It is one of the key aspects of the agreement that should be considered to demonstrate the service provider’s integrity to the client.
- Service Provider acknowledges that all the information and all the documents placed at its disposal, learned or acquired by any means whatsoever, or produced, in connection with or during the execution of this agreement, are the exclusive property of Client(and/or Client’s client, as applicable)and are confidential, and Service Provider agrees to treat them as such.
- Service Provider agrees to return to Client (and/or Client’s client), upon termination of this agreement, all documents placed at its disposal for the execution of this agreement and never to disclose, without prior written agreement from Client (and/or Client’s client), any or all of said documents or the information they contain.
- Should a third party (consultant, expert, appraiser, etc.) be involved in the performance of the work herein by Service Provider, Client will be able to demand that such a person sign a confidentiality agreement.
- INTELLECTUAL PROPERTY
- Pursuant to article 10.3, Service Provider acknowledges that, during the performance of the work herein, all contributions, including but not limited to, tasks, works, drawings, innovations, discoveries, inventions or developments, and their adaptation or modification, whether such contributions are protected or not under any applicable law, when such contributions are made, designed, created, realized or materialized by it or with its cooperation for the term of this agreement, are fully and exclusively the property of Client’s client.
10.2.Therefore, Service Provider transfers to Client’s client, as they arise, all its rights, titles and interests in or with regard to them and hereby agrees, at Client’s client’s request, to sign any document that Client’s client considers useful or necessary to give effect to this commitment.
10.3.It is understood that in the event Service Provider gives Client’s clientfree right to its own work or free right to work from third parties (such as open source software), no right of intellectual property for said work may be transferred to Client’s client.
This clause is not mandatory and is provided here just as an example.
It is, however, one of the key aspects of the agreement that should be considered to clarify the ownership of the rights to the work once it has been completed and submitted by the service provider.
Il This is a negotiable clause, the mention, scope and/or terms and conditions of which may be discussed and agreed upon to the parties’ mutual satisfaction.
- Client reserves the right to unilaterally terminate this agreement for all legal purposes at any time during the term of this agreement if Service Provider fails to respect one or other of the terms, conditions or obligations imposed upon it herein.
The client may unilaterally and without notice terminate the project for any reason whatsoever. However, it must pay the service provider’s fees for the work it has already done (see clause 11.2).
However, the service provider may not decide to terminate the agreement unilaterally without serious grounds. The law provides that only the client has that power.
11.2.In the event of termination by Client, the latter will be responsible for paying for all services provided herein by Service Provider up to the date of termination.
11.3.Service Provider may unilaterally terminate the agreement only on serious grounds and, even then, it may not do so at an inopportune moment; otherwise, it is liable for any injury caused to Client by such termination.
Le The Civil Code of Quebec does not clearly define all situations that might be qualified as “serious grounds”. This concept is, however, based on good faith and the submitted proof and circumstances of the case.
Also, “inopportune” indicates an inappropriate time likely to cause irreparable injury to the client.
11.4.Pursuant to the preceding article, Service Providershall, when it decides to terminate the agreement, give written notice of at least ten (10) days to Client and do all that is immediately necessary to prevent any loss for Client (or Client’s client).
This clause is optional given the very restricted right for service providers to terminate the agreement only in exceptional situations. Despite everything, it is clear that the service providermust doeverything possible to mitigate the damage that may be caused to the clientby its decisionto terminate the agreement on serious grounds.If it fails to do so, itwill have to pay the client for injury occasioned by its fault.
- The parties hereto agree that they have informed the other party of any matter that may affect the legal basis of the relationship, neither Client nor Service Provider having knowingly omitted a piece of information, which, if known, would have the effect of causing one or other of the parties to choose not to initiate the business relationship..
*** Important Clause ***: The parties undertake here to disclose all information likelyto affect their business relationships.
- FORCE MAJEURE
- Neither of the parties may be held liable for any reason whatsoever for failure to perform its obligations herein in the event of force majeure, or any event beyond its control that delays, interrupts or prevents the performance of its obligations.
- Force majeure is any cause which is not dependent on the will of the parties heretoand could not have been reasonably anticipated or foreseen or against which the party could not protect itself. Force majeure includes, but is not limited to, any accident, strike, partial or complete work stoppage, lock-out, fire, uprising, intervention by civil or military authorities, acquiescence to rules or directives from any government authorities and an act of war, whether declared or not.
In accordance with the principle “Nobody is expected to do the impossible.”
An arbitration clause may also be added to provide for common agreement on a way of settling a dispute between the partiesconcerning the application and interpretationof this agreement, to the exclusion of any remedy before the courts of common law.
- GENERAL PROVISIONS
- Nothing in this agreement shall be construed as releasing or being interpreted as releasing Service Provider from its responsibilities or obligations as an independent contractor or in a manner that is contrary to the intention of the parties formulated in the preamblehereto.
- Adaptation: If a provision herein violates any law, it shall be interpreted, as applicable, in order to make it in conformity with the law or, failing that, in the way most likely to respect the parties’ intention without deviating from the regulations of such law.
- Validity:Any decision handed down by a court to the effect that any of the provisions herein is invalid or unenforceable will in no way affect the other provisions or their validity or enforceability.
- Written notice: Any notice required herein shall be given in writing and is deemed to have been given if it is delivered by hand or if it is sent by registered mail to the addresses indicated in the preliminary section identifying the parties hereto.
- Complete agreement: The parties acknowledge that this agreement and its associated annexes constitute a full, faithful and complete reproduction of the agreement they entered into with each other and replace any earlier agreement or any commitment to the same effect, whether verbal or written.
- Modification: Any modification to this agreement or any waiver of a right arising therefrom will have no effect if it is not explicit and recorded in a written document signed by the parties hereto.
- Non-waiver: The fact that a party did not insist on the full performance of one of the commitments set forth herein or did not exercise one of the rights conferred upon it herein shall not be construed as a waiver for the future of such right or to the full execution of that commitment. Notwithstanding any provision to the contrary, no waiver by one of the parties of any of its rights shall have effect unless concluded in writing, and such waiver is attributable only to the rights and circumstances expressly covered by such waiver.
- Related parties: This agreement binds the parties, their representatives, their successors and assigns and is interpreted under the laws and regulations in force in the Province of Quebec.
- Deadline: The deadlines indicated herein and in any accessory document are mandatory.
- Judicial district: The parties hereto make their home in the judicial district of(city).
- Laws of Quebec: This agreement is subject to the laws of the Province of Quebec.
IN WITNESS WHEREOF, THE PARTIES SIGNED AT-CITY-, THIS -DATE-.