General terms and conditions of the contribution agreement

Table of contents

1. Representations and Warranties by the Recipient
2. Obligations of the Recipient
3. Certification - Contingency Fees
4. Applicable Legislation
5. Confidentiality, Access to Information and Records To Be Kept
6. Assets Disposal
7. Liability
8. Indemnification
9. Insurance
10. Default and Remedies
11. Evaluation
12. Partnership
13. Assignment and Subcontractors
14. Dispute Resolution
15. Amendments
16. Intellectual Property
17. Successors

1. Representations and Warranties by the Recipient

The Recipient represents and warrants:

• 1.1  that it has the capacity and authority to enter into this Agreement to carry out the Project; that it knows of no reason, fact or event, current, imminent or probable, that would diminish this capacity and authority; and that it has obtained all permits, licenses, consents and other authority necessary to carry out the Project;
• 1.2  that it holds sufficient intellectual property rights for the conduct of the Project or the exploitation of any intellectual property resulting thereof;
• 1.3  that it, for the duration of this Agreement, has no interest, pecuniary or otherwise, in any matter that would put it in an actual or apparent conflict of interest;
• 1.4  that the description of the Project accurately reflects what it intends to do, that the information contained therein is accurate, and that all relevant information has been disclosed;
• 1.5  that it will declare any amount owing to the federal government under legislation, contract or contribution agreements during the term of this Agreement and that it recognizes that amounts due to the Recipient may be withheld to offset amounts owing to the Government; and
• 1.6  that no current or former public servant or public office holder who is not in compliance with the provisions of the Conflict of Interest Act, S.C. 2006,c.9 ^{Footnote 1}, the Values and Ethics Code for the Public Sector and the Policy on Conflict of Interest and Post-Employment ^{Footnote 2}, member of the House of Commons or senator who is not in compliance with the Conflict of Interest Code for Members of the House of Commons ^{Footnote 3} or the Conflict of Interest Code for Senators ^{Footnote 4}, or anyone else bound by other values and ethics codes applicable to government or specific recipients, shall derive a direct benefit from this Agreement, unless the provision or receipt of the benefit is in compliance with the legislation or codes.

2. Obligations of the Recipient

2.1  During the term of this Agreement, the Recipient shall: :
• 2.1.1  take all necessary actions to maintain itself in good standing, to preserve its legal capacity and to inform the Deputy Head without delay of any failure to do so;
• 2.1.2  upon the written request of the Deputy Head and without delay, provide any information as the Deputy Head may require concerning this Agreement;
• 2.1.3  disclose to the Deputy Head, without delay, any fact or event that would or might compromise the Project’s chances of success or the Recipient’s ability to carry out any of the terms and conditions of this Agreement, either immediately or in the long term, including but not limited to, pending or potential lawsuits and audits;
• 2.1.4  ensure access by the Deputy Head, his/her authorized representatives and by the Auditor General of Canada to its premises at all reasonable times and upon not less than two weeks’ notice for audit and evaluation purposes;
• 2.1.5  ensure access by the Deputy Head or his or her authorized representatives to any of the recipient's real property under the ownership or control of the Recipient where any part of the Project is being carried out, at any time and during reasonable hours, to monitor Project implementation. The Recipient shall provide to the Deputy Head or to his or her authorized representatives all necessary assistance and documentation as may be necessary for the carrying out of this monitoring function;
• 2.1.6  where practicable, adopt a competitive process for procurement of goods and services for the Project that enhances access, transparency, competition and fairness and results in best value. The Recipient agrees to ensure that a reasonable number of suppliers are given an opportunity to bid and should avoid situations where there may be a bias toward awarding a contract for goods or services for the Project to a specific person or entity; and
• 2.1.7  ensure that during the term of this Agreement, any persons engaged in the course of carrying out the Agreement shall conduct themselves in compliance with the principles of the Values and Ethics Code for the Public Sector. Should any such interest be acquired during the life of the Agreement that would cause a conflict of interest or seem to cause a departure from the principles, the Recipient shall declare it immediately to the Deputy Head's representative.

3. Certification - Contingency Fees

• 3.1  The Recipient 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 obtainment of this Agreement to any person.
• 3.2  All accounts and records pertaining to the payment of fees or other compensation for the solicitation, obtainment or negotiation of the Agreement shall be subject to the audit provisions of the Agreement.
• 3.3  If the Recipient certifies falsely under this article or is in default of the obligations contained therein, the Deputy Head may either terminate this Agreement for default or recover from the Recipient, by way of reduction of the contribution or otherwise, the full amount of the contingency fee.

4. Applicable Legislation

• 4.1  The Recipient must ensure that the Project is carried out in compliance with all applicable statutes, regulations, orders, standards and guidelines and shall ensure that any project sub-contractor is subject to the same obligations.
• 4.2  This Agreement shall be governed by and interpreted in accordance with the applicable laws of the Province of residence of the Recipient or main place of business.
• 4.3  Any person lobbying on behalf of the Recipient shall be registered pursuant to the Lobbying Act, R.S., 1985, c. 44 (4th Supp.).

5. Confidentiality, Access to Information and Records To Be Kept

• 5.1  The Recipient agrees that,
  • (a)  any information of a confidential nature related to the Program under which this Agreement is made (the Program) to which the Recipient or its employees or agents become privy shall be treated as confidential, shall be adequately protected against unauthorized use or disclosure and shall not be disclosed to third parties, unless such disclosure is in accordance with the spirit and intent of the Access to Information Act, R.S., 1985, c. A-1, and is in accordance with applicable law;
  • (b)  any personal information related to the Program to which the Recipient or its employees or agents become privy shall be adequately protected against unauthorized use or disclosure and shall not be disclosed to third parties, unless such disclosure is in accordance with the spirit and intent of the Privacy Act, R.S., 1985, c. P-21 and is in accordance with applicable law.
• 5.2  The Recipient acknowledges that the Deputy Head is subject to the Access to Information Act, R.S. 1985, c. A-1, and the Privacy Act, R.S., 1985, c. P-21 and acknowledges that Library and Archives Canada (LAC) may be required to disclose information under those Acts.
• 5.3  The Recipient consents to the public disclosure by LAC of the following information: this Agreement itself, amounts advanced as eligible expenditures, the criteria for calculating payments, data showing the activities supporting such payments and any analysis, audit, reports and evaluations relating to the Program .The Deputy Head shall ensure that any public disclosure respects all requirements to protect personal information and third-party information.
• 5.4  Unless otherwise agreed to by the Parties, the Recipient shall keep all records, information, databases, audit and evaluation reports, and all other documentation related to activities and associated expenditures and costs for a period of five (5) years from the expiration or termination of this Agreement and, at the request of the Deputy Head, permit reasonable access by LAC representatives to such records and documentation during the same period, for the purpose of verifying the use of the grant and compliance with the terms and conditions of this Agreement.

6. Assets Disposal

For any asset purchase (furniture, equipment, vehicles, immovable assets, etc.) that has a cost of over $10,000, the Recipient shall:

• 6.1  Subject to 6.3, preserve and maintain the assets acquired with contribution funds and use them for the purposes of the funded activities during the term of this Agreement unless;
  • 6.1.1  written exemption from this requirement is obtained from the Deputy Head;
  • 6.1.2  the Deputy Head authorizes the disposition of the asset;
  • 6.1.3  replacement of assets subject to wear is necessary; or
  • 6.1.4  assets that have become outdated require replacement.
• 6.2  Subject to 6.3, the Recipient agrees that, at the end of the Project or upon termination of this Agreement, if earlier, and if directed to do so by the Deputy Head, any assets referred to in 6.1 that have been preserved by the Recipient shall be:
  • 6.2.1  sold at fair market value and the funds realized from such a sale applied to the eligible cost expenditures of the Project to offset the Deputy Head’s contribution to the eligible cost expenditures of the Project;
  • 6.2.2  turned over to another organization or person designated or approved by the Deputy Head; or
  • 6.2.3  disposed of in such other manner as may be determined by the Deputy Head.
• 6.3  The Recipient agrees to preserve and maintain the immovable assets acquired with contribution funds and use them for the purpose for which they were acquired for a period of ten years after the term of this Agreement, or after its termination, if earlier, unless written exemption from this requirement is obtained from the Deputy Head. If directed to do so by the Deputy Head, any such immovable assets that are to be disposed of by the Recipient shall be:
• 6.3.1  sold at fair market value and funds realized from such a sale reimbursed to Her Majesty based on a pro-rata share of the funding toward the immovable assets. Until repaid to Her Majesty, the excess amount constitutes a debt owing to Her Majesty. Where any amount due to Her Majesty has not been repaid, an amount equal to the amount due may be retained by way of deduction from or set-off against any sum of money that may be due or payable to the Recipient;
• 6.3.2  turned over to another organization or person designated or approved by the Deputy Head; or
• 6.3.3  disposed of in such other manner as may be determined by the Deputy Head.

7. Liability

• 7.1  The Deputy Head and his/her employees and agents shall not be held liable for any injury, including death to any person, or for any loss or damage to property of the Recipient or for any obligation of the Recipient or anyone else, incurred or suffered by the Recipient or its employees, agents or voluntary workers in carrying out the Project, including where the Recipient has entered into loans, capital leases or other long term obligations in relation to this Agreement.
• 7.2  Where the Recipient is entering into a loan, a capital lease or other long-term obligation in relation to the activity or deliverable for which Deputy Head’s Contribution is disbursed, the Recipient shall not incur any obligation on behalf of the Deputy Head and shall ensure that any agreement in respect thereof expressly relieves the Deputy Head of any liability for non-performance by the Recipient or damages caused by the Recipient.
• 7.3  Where the Recipient is an unincorporated organization, it is agreed by the representatives of the Recipient signing this Agreement on behalf of the Recipient, that they shall be personally, jointly and severally liable for all obligations, covenants, promises, liabilities and expenses assumed by the Recipient under this Agreement.

8. Indemnification

• 8.1  The Recipient shall indemnify and save harmless the Deputy Head and his/her employees and agents from and against all claims, losses, damages, costs and expenses (including reasonable solicitor/client fees, administrative fees and disbursements); and all claims, demands, actions and other proceedings made, sustained, brought, prosecuted, or threatened to be brought or prosecuted in any manner, based upon, occasioned by, or attributable to an injury to a person, the death of a person, an environmental effect, damage to (or loss of) property, whether arising directly or indirectly, or due to the result of a willful or negligent act or delay, on the part of the Recipient, its employees, agents or voluntary workers in carrying out the Project. The Deputy Head shall not claim indemnification, under this section, to the extent that the injury, loss or damage has been caused by the Deputy Head or his/her employees or agents.
• 8.2  In the event that either the Deputy Head or the Recipient is named in an action or a proceeding relating to this Agreement or relating to activities undertaken pursuant to or as a result of this Agreement in which liability is at issue, the Party or Parties named shall notify the other Party, and the named Party may defend the action or proceeding in its own name and at its own cost. If the named Party believes that the other Party has administration or control of any material having potential evidentiary value in such action or proceeding, the named Party may request access to such material for purposes of the litigation. The un-named Party may, however, refuse such access, if it is of the view that disclosure of the material would be contrary to its interest or its obligations under the law. The un-named Party shall refrain from any extra-judicial conduct which would prejudice the successful conclusion of the action or proceeding.

9. Insurance

The Recipient shall, through an appropriate, comprehensive general liability insurance with a coverage of not less than $2,000,000 inclusive per occurrence for each peril, cover any liability resulting from anything done or omitted by the Recipient or its employees, agents or voluntary workers in carrying out the Project or this Agreement.

10. Default and Remedies

• 10.1 The following constitute events of default:
  • 10.1.1  the Recipient becomes bankrupt or insolvent or is placed in receivership or takes the benefit of any statute relating to bankrupt and insolvent debtors;
  • 10.1.2  an order is made or a resolution is passed for the winding-up of the Recipient or the Recipient is dissolved;
  • 10.1.3  in the Deputy Head’s opinion, there is a change in risk that would jeopardize the success of the Project;
  • 10.1.4  the Recipient, either directly or through its representatives, makes or has made a false or misleading statement or representation in respect of any matter related to this Agreement other than in good faith to the Deputy Head
  • 10.1.5  in the Deputy Head’s opinion, a term, condition, commitment or obligation provided for in the Agreement has not been respected or complied with; and
  • 10.1.6  the Recipient is no longer eligible under the “Eligibility Criteria” of the Program.
• 10.2  Where there is a default or where, in the Deputy Head’s opinion, there is likely to be a default under this Agreement, the Deputy Head may reduce the contribution level, suspend any payment, make arrangements under particular terms and conditions so that the Project will be completed or continued by another Recipient, rescind this Agreement and immediately terminate any financial obligation arising out of it and require repayment of amounts already paid.
• 10.3  The fact that the Deputy Head refrains from exercising a remedy or any right herein shall not be considered to be a waiver of such remedy or right and, furthermore, partial or limited exercise of a remedy or right conferred on her/him shall not prevent her/him in any way from later exercising any other remedy or right under this Agreement or other applicable law.
• 10.4  Notwithstanding anything else provided for in this article, the Deputy Head may not terminate this Agreement unless he or she has served written notice to the Recipient of the event of default and the Recipient has failed to remedy the default within a period of thirty (30) days from the date that the written notice was served. At the expiration of the thirty (30) days, the Deputy Head may terminate this Agreement and rely on any remedy provided for under this Agreement if he or she deems that the Recipient has not remedied the event of default in a satisfactory manner. The Deputy Head shall reimburse the Recipient for any Eligible Costs incurred to the effective date of termination.

11. Evaluation

• 11.1  The Deputy Head and the Recipient agree on the importance of assessing what has been accomplished in terms of the defined objectives and expected results outlined in this Agreement.
• 11.2  The evaluation of the Agreement is a joint concern of the Deputy Head and the Recipient. To this end, the Recipient agrees:
  • 11.2.1 that it shall provide an interim assessment and financial report and a final assessment and financial report, in a way that shows completion and/or progress, in relation to the defined objectives and expected results of the Project and participate in any evaluation of the Project as required and as mutually agreed upon; and
  • 11.2.2 that the Deputy Head reserves the right at any time during the term of the Agreement and for a period of up to five years after the end of this Agreement to make an evaluation to ensure compliance with the terms and conditions of the Agreement.

12. Partnership

• 12.1  The Parties acknowledge that this Agreement does not constitute an association for the purpose of establishing a partnership or joint venture and does not create an agency relationship between the Deputy Head and the Recipient, and that it in no way implies any agreement or undertaking to conclude any subsequent agreement.
• 12.2  The Recipient shall not represent itself as being a partner, co-contractor, employee or agent of the Deputy Head in carrying out the Project referred to in this Agreement..

13. Assignment and Subcontractors

The Recipient shall not assign this Agreement, or any part thereof or any payments to be made there under, without the written permission of the Deputy Head, but nothing shall preclude the Recipient from enlisting the assistance of others in carrying out the obligations under this Agreement.

14. Dispute Resolution

In the event of a dispute arising under the terms of this Agreement, the parties agree to make a good-faith attempt to settle the dispute. The Parties agree that nothing contained in this provision shall affect, alter or modify the rights of the Deputy Head under the Default and Remedies provision of this Agreement.

15. Amendments

This Agreement may be amended by the mutual written consent of the Parties hereto. To be valid, any amendment to this Agreement shall be in writing and shall be signed by the Parties hereto or by their duly authorized representatives, while this Agreement is in effect.

16. Intellectual Property

Any intellectual property developed as a result of the Project shall belong to the Recipient.

17. Successors

This Agreement is binding upon the parties and their respective administrators and successors.