2020-123 Schedule AMASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is entered into as of the 1st day of January, 2021 (the “Effective Date”) between THE CORPORATION OF THE TOWN OF TILLSONBURG (the “Town”), a corporation organized and existing under the laws of Ontario, and COUNTY OF OXFORD (the “County”), a corporation organized and existing
under the laws of Ontario.
In consideration of the mutual covenants and agreements contained herein, the Town and the County agree as follow:
1. DEFINITIONS
Unless otherwise defined herein, capitalized terms used in this Agreement are defined in
Section 16.1.
2. SERVICES
2.1 The Town will provide to County the services described in each Statement of Work (collectively, the “Services”) pursuant to the terms and conditions of this Agreement. The scope of the Services may be amended or modified by written agreement of the parties.
2.2 If applicable, the parties acknowledge and agree that the minimum operational
requirements (the “Minimum Requirements”) described in each Statement of Work are necessary for the delivery and receipt of the Services. The County agrees that it is responsible for the Minimum Requirements during the Term.
2.3 If applicable, upon payment of the Fees, the County shall have access to the
Services for the number of users described in the Hosting Statement of Work. The County
shall not (a) allow additional users to access the Services, and (b) share the Service with anyone outside the County. In the event of the County’s breach of this Section 2.3, Town reserves the right to cancel this Agreement pursuant to Section 10.2.
2.4 The use of the Services by the County is limited to normal user activity having
regard to the ordinary and usual needs and requirements of the County's respective
business and affairs and the "day-to-day" conduct and operation thereof.
2.5 The parties acknowledge that any computer systems of the County which are not being maintained by Town pursuant to this Agreement shall not be supported by Town.
2.6 Town will provide such resources and utilize such employees or consultants as it
deems necessary to perform the Services. The manner and means used by Town to
perform the Services are in the sole discretion and control of Town. In delivering the Services, Town hereby represents and warrants to the County that:
a) it has the right and has obtained and holds all necessary licences, permits, consents and other authorizations in order to enable Town to deliver the Services,
including but not limited to any software or other intellectual property licences;
b) there are no existing restrictions or constraints on Town's right and ability to deliver the Services in accordance with this Agreement; and c) it has not infringed the rights of any other Persons with respect to the delivery of the Service, and has not received notice of an impending dispute regarding such an
infringement.
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3. FEES AND OTHER CHARGES
3.1 For the Services provided by Town, the County will pay Town the fees set forth in
the particular Statement of Work in lawful money of Canada (the “Fees”).
3.2 The Fees payable to Town pursuant to this agreement are exclusive of HST, any sales, use or other taxes or governmental charges. The County is responsible for payment of all such taxes or charges, except for any taxes based solely on Town’s income.
3.3 The County acknowledges that additional professional services may be required
as a result of material changes to Solution Scope, which services shall be provided upon receipt of written confirmation from the County and at County’s sole expense in accordance with Town then current fees. For additional services not described in a Statement of Work that are requested in writing by County (“Additional Services”), Town
will provide an estimate to County of fees for the Additional Services and County must
approve the estimate prior to commencement of Additional Services.
3.4 Other fees not under the control of Town such as third party maintenance or services fees (“Third Party Fees”) will be pass-through costs and any increases in Third Party Fees will be passed through to the County, subject to the County’s prior written
approval of such increased costs, acting reasonably.
3.5 On every anniversary of the Effective Date during the Term (each a “Change Date”), the Fees shall escalate by the average of the annual CPI percentage changes in the twelve (12) consecutive months immediately preceding the Change Date (the “Percentage Change”). In the event that the Percentage Change is positive on a Change
Date, then the Fees shall be multiplied by the Percentage Change, and the resulting
increase shall be added to the Fees and such sum shall be the Fees effective as of that Change Date. The County agrees that said escalated Fees shall thereafter be payable in accordance with Section 4, until the next Change Date. In no event shall the Fees in a given year be less than the Fees for the immediately preceding year. In the event that
the CPI information necessary to determine the Percentage Change is unavailable as of
a Change Date, County shall continue to pay the Fees it had been paying immediately prior to said Change Date until such information is made available; at that time the Fees shall escalate in accordance with this Section and County shall make a retroactive payment to Town equal to the increase. No subsequent adjustments or re-computations,
retroactive or otherwise, shall be made to the CPI due to any revision that may later be
made to the first published figure of the CPI for any month.
4. INVOICING AND PAYMENT
4.1 Town will invoice the County in accordance with the invoicing terms as set out in applicable Statement of Work. All Invoices will be due and payable on or before fifteen
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(15) days after delivery (the “Payment Due Date”). Overdue amounts will accrue simple interest at the rate of one (1%) percent per month (12.56% p.a.).
4.2 If the County’s procedures require that an invoice be submitted against a purchase
order before payment can be made, the County will be responsible for issuing such purchase order at least thirty (30) days before the payment due date.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 If applicable, the County will provide Town with access to the Licensed Technology
for the sole purpose of allowing Town to perform the Services. The County hereby grants
Town a royalty-free, non-exclusive, license to use the Licensed Technology (if any), and all County IP Rights covering such Licensed Technology, solely in order for Town to perform the Services and solely during the term of this Agreement. To the best of its knowledge, County represents that it has obtained all necessary permissions, licenses,
consents and has the authority and right to provide such Licensed Technology (if
applicable) to Town.
5.2 Except as otherwise set out herein, neither this Agreement, nor the provision of Services hereunder, will give either Town or the County any ownership interest in or rights to the existing IP Rights of the other party. All IP Rights that are owned or controlled by
a party at the commencement of this Agreement will remain under the ownership or
control of such party throughout the term of this Agreement and thereafter.
5.3 To perfect ownership of Town’s IP Rights, the County assigns to Town all rights that the County may have in the Innovations, and will assist and cooperate with Town in all reasonable respects, subject to reasonable availability, (a) in actions to acquire,
transfer or maintain such IP Rights of Town, including executing the customary
documents associated therewith, and (b) in actions of enforcement of such Town IP Rights, subject to payment by Town of all costs reasonably incurred by the County that are associated therewith.
5.4 Town acknowledges that the data contained in the database files is the sole
property of the County and that the County is free to download the database files at any
time for the County’s own use. Town reserves the right to download the database files for maintenance and backup purposes.
6. LIMITED WARRANTIES AND EXCEPTIONS
6.1 Town warrants that the Services provided hereunder shall at all times be
performed in accordance with this Agreement and the applicable Statements of Work, in
a professional manner, in accordance with customary industry practices, and with the degree of skill and care expected of persons who perform similar services at the time the Services are performed.
6.2 THE WARRANTY IN SECTION 6.1 IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY/ MERCHANTABLE QUALITY, REASONABLE SKILL AND CARE, FITNESS FOR USE OR A PARTICULAR PURPOSE, CONTINUAL OR UNINTERRUPTED SERVICE OR
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NON-INFRINGEMENT, EACH OF WHICH IS EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
7. INDEMNIFICATION
7.1 Subject to the provisions of Sections 7.2, 8.1, 8.2, and 8.3, Town will indemnify, defend and hold the County and their respective officers, directors, employees, and agents, representatives, successors or assigns (the “County Indemnitees”) harmless from and against any and all claims, liabilities, losses, damages, judgments, liabilities,
costs, and expenses including legal fees and disbursements (“Losses”), and any legal
fees and expenses relating to its defence, resulting from (i) Town and/or its contractors’ negligent acts or omissions or willful misconduct under this Agreement and/or (ii) any suit or action brought against the County Indemnitees alleging infringement of any third party copyright or trade secret by Town or its contractors resulting from the delivery of the
Services to the County.
7.2 If any claim or action is commenced against County Indemnitiees for Losses resulting from such claim or action (a “Claim”), the County will give written notice to Town within twenty (20) days of notice of such Claim. If Town is obligated under this Agreement to indemnity Losses arising from such Claim, then Town may, in is discretion, take control
of the defence and investigation of the Claim, using such counsel and other assistance
as it selects in its discretion. The County Indemnitiees agree to cooperate in all commercially reasonable respects in such investigation and defence, including trial and any appeals, provided that the County Indemnitiees may also participate, at its own expense, in such defence. No settlement of a Claim that involves a remedy other than
payment of money by Town will be agreed to and entered without prior written the consent
of the County, which consent will not be unreasonably withheld.
7.3 THE FOREGOING STATES THE CLIENT INDEMNITIIES’ SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
8. LIMITATIONS ON LIABILITY
8.1 IN NO EVENT WILL A PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER FOR
BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Town shall not be liable for protection or privacy of information transferred through the County’ Indemnitiees’ network provider or for any damages resulting from or related
to any failure or delay of Town to provide service under this Agreement, unless caused
by Town’s gross negligence or willful misconduct.
8.3 THE AGGREGATE CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE COUNTY TO TOWN HEREUNDER.
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8.4 No action, regardless of form, arising from this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
9. CONFIDENTIALITY AND NON-SOLICITATION
9.1 Except as otherwise expressly provided in this Agreement, each party (the “Receiving Party”) agrees that all Confidential Information provided to it by the other party (the “Disclosing Party”) by any method and in any format whatsoever, whether before or after the Effective Date (collectively, “Confidential Information”), shall be
deemed to be confidential and proprietary to the Disclosing Party. The Receiving Party
may use such Confidential Information only in connection with and for the purposes of exercising its rights and carrying out its obligations under this Agreement. Each party agrees to use the same means as it uses to protect its own confidential information, but in no event less than reasonable means, to prevent the disclosure and to protect the
confidentiality of the other party’s Confidential Information.
9.2 In the event that the Receiving Party or any person to whom it discloses the Confidential Information pursuant to the terms of this Agreement becomes legally compelled to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice so that the Disclosing Party may
seek a protective order or other appropriate remedy and/or waive compliance with the
confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives in writing compliance with the confidentiality provisions of this Agreement, the Receiving Party or the person legally compelled to disclose the Confidential Information shall furnish only that portion of the
Confidential Information that is legally required and the Receiving Party shall use its best
efforts to obtain reliable written assurances from the recipients of the Confidential Information that confidential treatment will be accorded such Confidential Information.
9.3 The Receiving Party shall not disclose the Confidential Information of the Disclosing Party without their prior written consent, provided that the Receiving Party may
disclose the Disclosing Party’s Confidential Information to the Receiving Party’s directors,
officers, employees, agents, advisors, consultants and representatives (collectively, “Representatives”), but only to the extent that such Representatives need to have access to such Confidential Information for purposes associated with the performance of this Agreement. Each Receiving Party shall advise each such Representative of the
confidentiality obligations set forth in this Agreement. Compliance by each
Representative with such confidentiality obligations shall remain the responsibility of the Receiving Party employing or retaining the Representative. Notwithstanding the foregoing, Town may disclose to certain entities, including without limitation the Ontario Energy Board and the Independent Electricity System Operator, such portions of the
County’s Confidential Information that Town must disclose in order to perform its
obligations under this Agreement.
9.4 Town shall comply with all applicable federal, provincial and municipal legislation and policies in relation to privacy, including without limitation as and when applicable to Town, the Personal Information Protection and Electronic Documents Act (Canada),
Municipal Freedom of Information and Protection of Privacy Act and Freedom of
Information and Protection of Privacy Act. Each party shall immediately inform the other
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party of any actual or suspected Privacy and Security Event (as defined below). In the event of any such Privacy and Security Event, each party shall provide all necessary co-
operation and assistance requested by the other party in relation to the parties’ respective
obligations under applicable law including without restriction with respect to notification of customers regarding any such Privacy and Security Event. Each party shall develop, maintain and follow processes and procedures to detect, address and remedy Privacy and Security Events. Upon becoming aware of any Privacy and Security Event, the
parties shall each take prompt and appropriate steps to remedy and minimize the effects
of such Privacy and Security Event.
For the purposes of this Section 9.4, “Privacy and Security Event” means a theft, loss or unauthorized access, collection, use, disclosure, alteration, copying, distribution, disposal or other compromise of Confidential Information.
9.5 Upon termination of this Agreement, Town shall immediately return to the County
all of its Confidential Information upon written request.
9.6 During the term of this Agreement and for a period of one (1) year thereafter the County shall not, without the prior written consent of Town, hire (i) any employee of Town, or (ii) any person who was an employee of Town during the previous six (6) months, who
was directly involved with the implementation and maintenance of the Services.
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10. TERM AND TERMINATION
10.1 This Agreement shall commence on the Effective Date and shall remain in full force
and effect for a period of Five (5) years (the “Initial Term”), subject to earlier termination
as provided for in this Agreement. This Agreement will automatically be renewed for successive one (1) year periods unless either party provides the other party with no less than one hundered and eighty (180) days written notice prior to the end of the initial term or applicable renewal period (each, a “Renewal Period” and collectively with the Initial
Term, the “Term”). 10.2 Subject to Section 10.3 below, this Agreement may be terminated by either party: (a) for any reason, upon one hundred and eighty (180) calendar days’ prior written notice to the other party, or (b) upon thirty (30) days’ prior written notice if the other party materially breaches or fails to perform any material term hereof and the breaching party
fails to cure such breach within the thirty (30) day period, or (c) immediately in the event
of bankruptcy or insolvency by the other party. 10.3 Notwithstanding Section 10.2, Town may terminate the Agreement immediately if (i) the County fails to pay an invoice within sixty (60) days of the Payment Due Date, or (ii) the County breaches Section 2.3.
10.4 Upon termination by the County pursuant to Section 10.2(a) or upon termination
pursuant to Sections 10.2(b) and 10.3 as a result of the County’s breach of this Agreement, the County shall pay the Provider fifty (50%) percent of the Remaining Contract Amount, in immediately available funds, within thirty (30) days of the termination. 10.5 Upon the termination of the Agreement for any reason, the County will be
responsible for entering into new arrangements related to the services contemplated
herein. Town will use commercially reasonable efforts to assist with transferring the County to a new service provider and the County agrees to pay Town’s then current rates for such work (including, but not limited to, programming and file transfers). 10.6 Each party’s obligations under Sections 4, 5, 6, 7, 8, 9, 10.4, 11, 12, 14 and 16.3
of the Agreement will survive termination or expiration of the Agreement. Within thirty
(30) days of termination of this Agreement for any reason, Town will submit to the County an invoice for any fees or expenses accrued and unpaid under this Agreement prior to the date of such termination.
11. INDEPENDENT CONTRACTORS
Town will perform the Services as an independent contractor, and nothing contained in
this Agreement will be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties. Neither party will take any action or permit any action to be taken on its behalf that purports to be done in the name of or on behalf of the other party and will have no power or authority to bind the other party to
assume or create any obligation or responsibility express or implied on the other party’s
behalf or in its name, nor will such party represent to any one that it has such power or authority.
12. GOVERNING LAW
This Agreement will be governed by the procedural and substantive laws of the Province
of Ontario, without regard to conflicts of laws principles. This Agreement is prepared and
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executed and will be interpreted in the English language only, and no translation of the Agreement into another language will have any effect. The United Nations Convention
on Contracts for the International Sale of Goods is specifically excluded from and will not
apply to this Agreement.
13. LANGUAGE
It is hereby agreed that both parties specifically require that this Agreement and any notices, consents, authorizations, communications and approvals be drawn up in the
English language. Il est convenu par le authori acte que les deux parties exigent que ce
contrat et tout avis, consentement, authorisation, communication et approbation soient rédigés en langue anglaise.
14. DISPUTE RESOLUTION
14.1 The parties will attempt in good faith to resolve any dispute arising in connection
with this Agreement informally according to the following procedure. Upon written request
of a party identifying a dispute to be resolved, each party will designate a management representative with the responsibility and authority to resolve the dispute. The designated management representatives will meet preliminarily within fifteen (15) days after the request is received from the requesting party. At this first meeting, the designated
management representatives will identify the scope of the dispute and the information
needed to discuss and attempt to resolve the dispute. These management representatives will then gather relevant information regarding the dispute and will meet again to discuss the issues and negotiate in good faith to resolve the dispute. Such second meeting will occur within fifteen (15) days of the first meeting.
14.2 Nothing in this Section 14 will restrict the right of either party to apply to a court of
competent jurisdiction for injunctive relief or damages at any time. However, the right of either party to file a lawsuit does not abrogate each party’s obligations under Subsection 14.1. Moreover, a party that elects to file a lawsuit will provide the written notice identified in Subsection 14.1 to the other party at the same time the lawsuit is filed with a court.
15. FORCE MAJEURE
Notwithstanding any other provision herein, neither party shall be liable for any delay in performance or non-performance of any of its obligations under this Agreement (other than an obligation to pay money) if such delay or non-performance is due to any cause beyond its control including but not limited to any act of God, flood, drought, lightning or
fire, labour lockout, labour dispute (other than a trade dispute affecting the party claiming
force majeure), war, terrorist act, military operations or riot (“Force Majeure Event”). If either of the parties shall become aware of a Force Majeure Event which gives rise to or which is likely to give rise to any such failure or delay to perform its obligations under this Agreement, it shall immediately give written notice to the other party and shall inform the
other party of the period of time which it is estimated that such failure or delay shall
continue. The parties shall, as soon as reasonably practicable following such notification, discuss all of the implications of the Force Majeure Event and use their best efforts to
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agree to a plan to remedy or overcome any problems arising from the Force Majeure Event.
16. MISCELLANEOUS
16.1 Capitalized Terms. The following definitions apply to the capitalized terms used in this Agreement that are not otherwise defined: a) “Confidential Information” means any information written or otherwise disclosed in any medium by one party to the other under this Agreement and marked or otherwise
designated as “Confidential” or clearly by its nature is likely to be confidential. However,
Confidential Information will not include any information of a party that: (a) is or becomes a part of the public domain through no act or omission of either party or otherwise available to the public other than by breach of this Agreement; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other
party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to
the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party without access to the Confidential Information. b) “CPI” means the consumer price index for “All Items” published or established by Statistics Canada (or its successor) in relation to the Province of Ontario.
c) “Effective Date” means the date set out at the beginning of the Agreement.
d) “Town Technology”, means Town’s proprietary information, methodologies and materials, software tools, computer programs and interfaces and their documentation, computer languages, methods, design flows, libraries, algorithms, databases and templates.
e) “Innovations” means any invention, development or innovation conceived or
developed in the course of performance of the Services, including, but not limited to, information, methodologies and materials, tools (including software tools), computer programs and interfaces and their documentation, computer languages, methods, design flows, libraries, algorithms, databases, encoding techniques, articles, writings,
compositions, works of authorship and modifications thereof.
f) “IP Rights” means all intellectual property rights, including patents, copyrights, trademarks (including service marks), trade secrets, and design rights, whether registered or unregistered, including any application for registration of any of the foregoing and all
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rights or forms of protection of a similar nature of having equivalent or similar effect to any of these, that may subsist anywhere in the world.
g) “Licensed Technology” means the materials and technology (if any) owned,
controlled or otherwise provided by the County (including Third Party Technology) that Town reasonably requires access to in order to perform the Services. h) “Statement of Work” shall mean a description of work and services to be performed pursuant to this Agreement, which is agreed to in writing by and between
Town and County, and attached as an exhibit to this Agreement.
i) “Third Party Technology” means such third party information, materials and technology, and the IP Rights therein, as are routinely used by the County, as of right, and as Town reasonably requires access to in order to perform the Services.
16.2 Notices. Notices to be given or submitted by either party to other pursuant to this
Agreement will be in writing and directed:
in the case of the County, to:
County of Oxford Attention: Director of Corporate Services 21 Reeve Street, Woodstock, ON N4S 3G1
in the case of the Town, to:
The Corporation of the Town of Tillsonburg Attention: 200 Broadway Tillsonburg, ON N4G 5A7
16.3 Severability. If any term or provision of this Agreement is determined to be invalid
or unenforceable for any reason, it will be adjusted rather than voided, if possible, to achieve the intent of the parties to extent possible. In any event, all other terms and provisions will be deemed valid and enforceable to the maximum extent possible.
16.4 Entire Agreement. The County acknowledges that it has read, understands and
will be bound by this Agreement, and that this Agreement is the complete and exclusive
statement of the agreement between the parties regarding the subject matter hereof, superseding all proposals, oral or written, and all other communications between the parties relating to such subject matter.
16.5 Amendment. Any terms and conditions of any purchase order or other instrument
issued by the County in connection with the Agreement that are in addition to or
inconsistent with the terms and conditions of this Agreement will be of no force or effect.
This Agreement may be modified only by a written instrument duly executed by an
authorized representative of each of Town and the County.
16.6 No Waiver. The failure of a party to enforce any provision of this Agreement will
not constitute a waiver of such provision or the right of such party to enforce such
provision or any other provision.
16. 7 Assignment. Neither party may assign this Agreement without the prior written
consent of the other party, which shall not be unreasonably withheld.
16.8 Counterparts. This Agreement may be executed in any number of counterparts,
and/or by facsimile or e-mail transmission of Adobe Acrobat files, each of which shall
constitute an original and all of which, taken together, shall constitute one and the same
instrument. Any Party executing this Agreement by fax or Adobe Acrobat file shall,
immediately following a request by any other Party, provide an originally executed
counterpart of this Agreement provided, however, that any failure to so provide shall not
constitute a breach of this Agreement except to the extent that such electronic execution
is not otherwise permitted under the Electronic Commerce Act, 2000 (Ontario).
In Witness Whereof, the parties hereto have executed this Agreement as of the Effective
Date.
COUNTY OF OXFORD:
Signature:~ -
Name: 1chael Dub
Title: dminstrative Officer
Date: •J
Signature:
Name:
Title:
OWN OF TILLSONBURG:
re:...----~~~~::::i....,,t!-~~~~ Date:14 of December , 2020
tephen Molnar
Title: MAYOR
I ·I /\~/\ /\~
Signature:,,/ :!\. IJVJILU
'-11 I V Name: Michelle Smibert
Date: 14 of December , 2020
Title: TOWN CLERK
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