Service Contract Terms and Conditions

Between:

Red River College
(the “College”)

-and-

The Vendor
(as defined herein)

1.1

ENTIRE AGREEMENT. It is acknowledged and agreed by both parties that this Agreement, along with terms set out on the face of the relevant purchase order, including any supplemental terms expressly incorporated by reference on the face of the relevant purchase order, constitutes the entire Agreement between the parties pertaining to the subject matter hereof, and supersedes all prior formal and informal Agreements, proposals, promises, inducements, representations, conditions, warranties, understandings, negotiations, and discussions, whether oral or written, of the parties. Notwithstanding any terms or materials that may have been provided to The College by the Vendor, the Vendor expressly agrees that the terms and conditions hereof are the only terms that that govern the relationship between the parties.

1.2

FOR GREATER CERTAINTY, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE VENDOR’S TERMS AND CONDITIONS, IF ANY, ARE OF NO FORCE AND EFFECT AND SHALL NOT BE APPLICABLE IN THE INTERPRETATION OF THIS AGREEMENT INLCUDING WHERE THE COLLEGE ACCEPTS THE SERVICES OR MAKES PAYMENT.

1.3

The Terms and Conditions apply to each agreement by Purchase Order for the provision of Services to the College.

2. DEFINITIONS

2.1

“Acceptance” shall be deemed to have occurred and the Vendor shall be bound by of these Terms and Conditions by commencing performance of the Services or any partial performance of Services.

2.2

“Agreement”, refers to the relevant Purchase Order, these Terms and Conditions together with any Supplemental Conditions that are expressly incorporated by reference on the face of the relevant purchase order. If there is any conflict or inconsistency between the documents that constitute this Agreement, unless otherwise provided, the documents will rank in the order of precedence as listed.

2.3

“College” means Red River College.

2.4

“Confidential Information” means any Vendor related, or College related information, material, documents, data, media, and trade secrets in whatever form and whether given directly or indirectly to the Vendor, in writing or orally or by inspection of processes and whether or not specifically identified as being of a confidential nature, and whether or not disclosed before or after the Commencement Date and includes but is not limited to:
products, processes, technical knowledge, methods, information processing systems, drawings, designs, plans, test reports, samples, devices, demonstrations, software (in source code and object code form), and software documentation;
business and financial information, marketing strategies, Vendor and customer lists and related information, sales techniques and policies, pricing, sales and distribution data, and expansion projects;
research, experiments, inventions whether patentable or not, discoveries, developments, improvements, ideas, industrial secrets, and know-how; and
proposed trademarks, trade dress, logos, product names for new or potential products and transition plans for new or potential products.
The Confidential Information includes not only written information, but information transferred orally, visually, electronically, or by any other means, In addition, the term “Confidential Information” shall be deemed to include any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by Receiving Party which contain, reflect or are based upon, in whole or in part, any Confidential Information received from Disclosing Party; and
all personal information as defined in the FIPPA and personal health information as defined in the PHIA, collected, used, stored, disclosed to or observed by the Vendor or Vendor’s Staff; but shall not include;
- the name of the Vendor and the Products supplied by it;
- information in the public domain; and
- information that the Receiving Party was lawfully in possession of prior to its disclosure by Disclosing Party to Receiving Party and, the Confidential Information was not acquired, directly or indirectly, subject to any confidentiality agreement or other obligation of secrecy to Disclosing Party.

2.5

“Vendor” means the individual and/or legal entity engaged to supply or provide the Services as identified in this Agreement and the relevant Purchase Order as well as the Vendor’s employees or consultants.

2.6

“Deliverables” means those reports, documents or other items to be provided by the Vendor to the College as described in the Purchase Order.

2.7

“Delivery Location” means the location specified on the Purchase Order.

2.8

“FIPPA” means The Freedom of Information and Protection of Privacy Act (Manitoba).

2.9

“GST” means goods and services tax within the meaning of the Excise Tax Act (Canada).

2.10

“PHIA” means The Personal Health Information Act (Manitoba).

2.11

“Purchase Order” means the individual Purchase Order, in written or electronic form, issued by the College to the Vendor in respect of the supply of Product(s) by the Vendor to the College, as the same may be amended or supplemented from time to time.

2.12

“Services” means the consulting services to be performed by the Vendor as set forth in the Purchase Order and shall include the Vendor’s Services and Deliverables as itemized on the Purchase Order.

3. TERM

3.1

The Term of this Agreement shall be as set out on the relevant Purchase Order unless otherwise terminated in accordance with these Terms and Conditions.

3.2

The Term may be extended on written agreement by both parties, with such amendments and modifications being made in writing.

4. SERVICES

4.1

Services. The Vendor agrees to provide the services set out in the Purchase Order (the “Services”). The Vendor shall determine how the Services shall be provided in keeping with the College’s needs and existing standards as disclosed to the Vendor from time to time. In providing the Services the Vendor shall receive instructions from the individual so designated by the Purchase Order or such other person designated by the College from time to time.

4.2

Method of Service. The Vendor shall not be required to provide full time attention to the College and shall be allowed to provide services to third parties.

4.3

Delivery of Service. It is acknowledged and agreed the Vendor shall perform the Services at a location so directed by the College.

4.4

Services Review. At the College’s request, both parties shall meet to review issues and concerns in connection with Services already provided and the Services to be provided. The Vendor shall be responsible for correcting any performance issues in the rendering of the Services as required.

5. INDEPENDENT CONTRACTOR STATUS

5.1

Source Deduction. The Vendor shall be responsible to pay, in a timely manner, and the Vendor agrees to indemnify and save harmless the College in respect of the payment of, or any claim arising in connection with, income and any other taxes, Canada Pension Plan, employment insurance or any other remittances or amounts which may be payable by or assessed against the Vendor or any of its directors, officers, employees, agents, sub-contractors or other persons for whom it is responsible at law.

5.2

Remuneration. The Vendor expressly acknowledges that the Vendor is not entitled to receive any remuneration or other payment from the College for or in connection with this Agreement except as otherwise provided for in the Purchase Order, and, without limitation, that the Vendor and any of its employees, agents, sub-contractors and other persons for whom it is responsible at law shall not be entitled to any employment pay from the College, including but not limited to general holiday pay, vacation pay, severance pay or any other termination payments.

5.3

Tools. The Vendor is responsible for providing all tools and equipment required for the performance of the Services to the standards defined in this Agreement, other than any equipment provided to the Vendor.

5.4

No Agency. For all purposes under this Agreement, the Vendor shall be an independent Contractor. Neither party shall hold itself out, and nothing in this Agreement shall be interpreted so as to construe the parties as partners, employer or employees, principal or agent of each other, members of an association or joint venture, or otherwise able to bind the other party. as specifically authorized by the College, the Vendor and its directors, officers, employees, agents, sub-contractors and other persons for whom it is responsible at law, will not have any authority to act, or to hold themselves out, as agents of the College or to bind the College to perform any obligations to any third party or at all, and the Vendor and its employees will so inform all third parties with which it deals pursuant to this Agreement. It is understood and agreed that, as an independent contractor, the Vendor is not entitled to any payment from the College in connection with or arising out of “overtime” or any work by the Vendor on a “general holiday” or any vacation pay under The Employment Standards Code (Manitoba) or under any comparable legislation in any other jurisdiction.

5.5

Indemnity. In the event it is determined that the Vendor is not an independent contractor and that the Agreement creates the relationship of employer and employee between the College and the Vendor and its directors, officers, employees, sub-contractors and/or agents, which is expressly denied pursuant to the terms of this Agreement, the Vendor agrees to be solely responsible and to save harmless and indemnify the College and its respective officers, directors, employees and agents from and against all claims, liabilities, orders, costs and demands resulting from such a determination, to the extent that such an indemnity is not prohibited by law. Should such a determination be made, the Vendor agrees that any amount the College has paid to the Vendor under the Agreement shall constitute an all-inclusive payment of the Vendor’s wages, vacation pay, overtime pay, benefits or other remuneration whatsoever, regardless of the day of the week on which the Services were performed or the number of hours worked in a day or week. Such payments to the Vendor pursuant to this Agreement shall exclude any and all required employment remittances which shall be paid by the Vendor.

6. PAYMENT

6.1

The College shall pay to the Vendor for the Services a fee based on the level of experience and rates set forth in the Purchase Order plus taxes applicable thereon. For greater certainty, no other compensation or expense reimbursement shall be payable to the Vendor unless expressly set forth in the Purchase Order.

6.2

Invoices. Vendor shall provide itemized invoices as provided for in the Purchase Order. All invoices shall be satisfactory to the College in form and content and must reference the relevant purchase order number issued by the College. The Vendor shall deliver to the College any supporting documents and receipts requested by the College from time to time.

6.3

Payment. The College shall pay Vendor all undisputed compensation due within thirty (30) days following receipt of an invoice and supporting materials pursuant to section 6.2 hereof.

7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDOR

7.1

The Vendor hereby represents and warrants to and covenants with the College as follows:

the Vendor possesses the necessary personnel, skills, expertise and experience to perform the Services in accordance with the provisions of this Agreement;
the Services shall conform to the professional standards of care and practice customarily expected of firms engaged in performing comparable work; and
the Vendor understands the College’s requirements under this Agreement and will be able to satisfy these requirements.
that the Deliverables, to the best of the Vendor’s knowledge:
- are true and accurate in every respect;
- do not violate the third-party rights of any person or entity in any way (including without limitation any copyright, trademark, patent, privacy, defamation, and/or publicity rights); and
- that the Deliverables shall be free from faults and defects of design, function, material, and workmanship for a period of 1 year. This warranty shall extend to all of the necessary costs of repairs and replacements, as well as to any and all consequential damages resulting from such faults or defects of design, function, material, and/or workmanship. The College will promptly inform the Vendor of any breach of this warranty related to the Deliverables, and Vendor agrees that it will promptly take any and all measures reasonably required to satisfy its warranty obligations to correct any faults or defects, without any additional cost or expense to College. In the event the Vendor fails to properly meet its warranty obligations as stated herein, Customer may perform all or part of same or obtain substitute services and charge the Vendor for the fair and reasonable cost of doing so.
the Vendor has the full unencumbered right and entitlement to assign all Intellectual Property Rights transferred and assigned in this Agreement, and the ownership and exploitation by the College of the Deliverables, as contemplated by this Agreement, will not violate or infringe any Intellectual Property Rights of any other Person;
title to the Deliverables and all media, materials and supplies housing the Deliverables delivered hereunder shall pass to the College in accordance with the terms hereof free and clear of all liens and encumbrances;
The Vendor has made no Intellectual Property Rights registrations of any nature in any jurisdiction in the world in respect of the Deliverables including copyright, patent and trademark registrations; and
The Deliverables are original works of authorship developed by the Vendor for the College.

7.2

The Vendor covenants and agrees:

to provide or engage (as required) competent, experienced personnel necessary to perform the Services to the College’s satisfaction;
to provide the supervision, training, equipment and all other things necessary for the performance of the Services to the satisfaction of the College;
to comply with all reasonable directions and requests of the College;
that the College or any other person on behalf of the College may perform audits of the Services provided at such times as the College may request, and agrees to permit such persons to have access to the Vendor’s records respecting the Services for audit purposes and to co-operate fully in any audit;
to perform its obligations in a timely manner and with the highest professional standards;
to perform its obligations in a good, workmanlike and professional manner to the College’s satisfaction;
to use due care in the performance of its obligations to ensure that no person is injured or killed, no property is damaged or lost, and no rights are infringed;
to provide written reports with respect to the Services in accordance with the requirements of the Purchase Order;
to provide the College with prompt written notification of any complaint(s) made to the Vendor by a third party regarding the Services provided;
to comply with instructions and requests made by the College concerning the Services and this Agreement;
to comply with all applicable federal, provincial, municipal, state, or other laws, by-laws, and regulations;
to comply with and ensure that its employees, sub-contractors, and/or any personnel engaged by the Vendor comply with the College’s corporate policies and procedures, as amended from time to time; and
to remit all taxes and other remittances owing and to file all returns and other filings when due with Canada Revenue Agency.

7.3

Licenses and Permits. The Vendor shall obtain all licenses and permits required for the provision of the Services as may be required by applicable jurisdictions to, from or through which the Vendor operates. The licenses and permits shall be issued in the name of the Vendor and the Vendor shall pay and indemnify the College for all expenses associated with the obtaining and maintaining of such licenses and permits.

7.4

Ownership of Intellectual Property. The Vendor acknowledges and agrees that all data, reports, summaries, research, work, deliverables, improvements, new inventions discoveries, systems, developments or programs relating to or arising out of the provision of the Services by the Vendor or made by the Vendor by virtue of this Agreement and arising in the course of, out of or in consequence of the Vendor’s engagement by the College (collectively, the “Intellectual Property”) shall be deemed to have been made by and on behalf of the College, together with all rights and benefits therefrom or in connection therewith, including, but not limited to, moral rights, shall belong to and be the property of the College exclusively. The Vendor and any other employees, agents or associates of the Vendor also waive any moral rights in the Intellectual Property. The Vendor further undertakes and agrees to execute and deliver and cause its employees to execute and deliver such further and additional confidentiality, copyright and licensing and patent agreements and undertakings as the College may require to substantiate the rights of the College in respect of such Intellectual Property.

7.5

The above representations and warranties are in addition to all other warranties as may be express or implied at law or equity. The representations shall be true and correct during the entire term of this Agreement and shall survive the expiry or early termination of this Agreement until all of the obligations of the Vendor hereunder have been fulfilled.

8. RELEASE AND INDEMNITY

8.1

Release and Indemnity :

The Vendor shall use due care in the performance of the Services and obligations under the Agreement to ensure that no person is injured or dies, no property is damaged or lost and no rights are infringed.
The Vendor hereby irrevocably and unconditionally releases and forever discharges the College and its respective directors, officers, employees and agents, and its respective successors, assigns, heirs and legal personal representatives (all such persons and entities being hereinafter referred to as the “Releasees”) of and from all manner of rights, actions, causes of action, suits, demands, debts, accounts, covenants, contracts, damages and all other claims whatsoever which the Vendor or its directors, officers, employees and agents, and its respective successors, assigns, heirs and legal personal representatives ever had, now have or may in the future have against any of the Releasees for or by reason of any matter, cause or thing existing up to and including the date of this Agreement and from the date of this Agreement forward including, without limiting the generality of the foregoing any claim whatsoever in, or relating to the Services, the confidential, privileged or sensitive information or any claim for otherwise.
The Vendor hereby irrevocably and unconditionally covenants and agrees to fully indemnify each of the Releasees from and against any liability, damages, costs and expenses suffered or incurred by any of the Releasees arising as a result of its relationship with the College or arising from, out of or as a result of, the Services the Vendor is providing to the College hereunder, (any such claim being hereinafter referred to as an “Other Claim”) against any other person or entity who claims, or whose representatives, successors or assigns claim contribution or indemnity from any of the Releasees in respect of such Other Claim, or which otherwise results in any of the Releasees suffering or incurring any liability, damages, costs or expenses.
The Vendor further hereby represents, warrants and covenants that it has not assigned and shall not assign to any other person or entity any of the rights, actions, causes or action, suits, demands, debts, accounts, covenants, contracts, damages and other claims which the Vendor is releasing herein.
The College shall not be liable for any injury to the Vendor or its directors, officers, employees, agents, sub-contractors or other persons for whom it is responsible at law, or for any damage to or loss of property of the Vendor or its directors, officers, employees, agents, sub-contractors or other persons for whom it is responsible at law and the College shall not be liable to the Vendor for any special, incidental, punitive, exemplary, indirect or consequential damages or losses whatsoever arising out of the performance of its commitments or Services under this Agreement.

8.2

This Article 8 shall survive the expiry or early termination of this Agreement.

9. CONSEQUENTIAL LOSS & LIMITATION OF LIABILITY

9.1

In no event shall either Party be liable to the other Party for any special, indirect, special, incidental, remote or consequential loss or damage, loss of profit or expected profit, loss of goodwill, business interruption, lost business, punitive damages or exemplary damages, incurred or suffered by the other Party regardless of awareness of the other Party of such damage or loss and regardless of cause, whether in contract, warranty or tort, including negligence.

9.2

The applicable limitations, exclusions and disclaimers set out in this Article 9 shall apply irrespective of the nature of the cause of action, demand or claim, including but not limited to, breach of contract, tort (including negligence) or any other legal theory and shall survive termination of these terms and conditions, a fundamental breach or breaches and/or failure of the essential purpose of these terms and conditions or any remedy contained herein. The allocations of liability in this section represent the agreed and bargained for understanding of the parties and the Vendor’s compensation reflects such allocations.

10. NO RELIANCE

10.1

The College shall not be liable for any loss, liability, cost or claim suffered or incurred by the Vendor as a result of the Vendor’s reliance in any way upon any information or data supplied to the Vendor by the College unless specifically contained in this Agreement. The Vendor shall be solely responsible for checking, verifying and validating the accuracy, sufficiency and completeness of any information or data supplied to the Vendor by the College, unless specifically contained in this Agreement.

11. INSURANCE

11.1

General Liability Insurance. The Vendor agrees to obtain and maintain at its cost, throughout the term of the Agreement, commercial general liability insurance covering claims for injury, death or damage to property arising out of the Vendor or its directors, officers, employees, agents, sub-contractors or other persons for whom it is responsible at law, providing Services under the Agreement, or as a result of any negligent acts or omissions of the Vendor, or its directors, officers, employees, agents, sub-contractors or other persons for whom it is responsible at law and shall obtain or maintain professional errors and omission with respect to the provision of Services.

11.2

Coverage Limits. The insurance policies set forth in section 11.1 above shall provide coverage of not less than five million dollars ($5,000,000.00) per occurrence. Without limiting the foregoing minimum coverage, the College does not represent that such amount is adequate to cover all possible claims or losses of this kind and expressly disclaims such a representation. The Vendor acknowledges that it is solely responsible for determining the adequacy of its insurance coverage and agrees that the aforementioned coverage is a reasonable minimum amount of coverage to protect the College’s interests under this Agreement.

11.3

Provision of Policies. Upon request, Vendor shall provide certificates of insurance to the College within three (3) business days of such request.

11.4

Workers’ Compensation. The Vendor agrees to maintain at its sole cost, through the term of the Agreement, good standing with the Workers’ Compensation Board of Manitoba except to the extent that the Services are not provided in Manitoba or the Services are excluded pursuant to the Excluded Industries, Employers and Workers Regulation MB Reg. 196/2005 and, upon request, shall provide the College with a Clearance Certificate within three (3) business days of such request.

12. CONFIDENTIALITY AND NON-SOLICITATION

12.1

Confidential Information. The Vendor acknowledges that in the performance of the Services the Vendor and its directors, officers, employees, agents, sub-contractors and others for whom it is responsible at law shall obtain certain confidential and proprietary information relating to the College and its operations. The Vendor agrees to regard and preserve as confidential all such information that may be obtained by it, its directors, officers, agents, employees, sub-contractors and others for whom it is responsible at law and to refrain from directly or indirectly utilizing or disclosing any such information to any third party, except for purposes of performing the Vendor’s obligations under this Agreement. The Vendor and all of its directors, officers, employees, agents, sub-contractors and persons for whom it is responsible at law shall not, during the term of this Agreement or after its termination, use for the Vendor’s benefit or purposes or for the benefit or purpose of any third party, any such information. The Vendor shall maintain the Confidential Information indefinitely, both during and after the termination of this Agreement. The Vendor shall further ensure: (a) the Vendor’s employees are bound by and comply with the terms and provisions contained in this Article 12; and (b) in the event the College so requests, sign an agreement with the College agreeing to be bound by the terms as provided in this Article 12.

12.2

Remedies. The Vendor acknowledges that the Vendor has carefully read and considered all the terms and conditions of this Agreement, including the obligations and restraints imposed upon the Vendor pursuant to section 12.1 of this Agreement. The Vendor agrees that the obligations and restraints are necessary for the reasonable and proper protection of the College and that each and every one of the obligations and restraints is reasonable in respect to subject matter and length of time. The Vendor further acknowledges that, were the Vendor to breach any of the covenants contained in Article 12 of this Agreement, the damage to the College would be irreparable. The Vendor therefore agrees that the College, in addition to any other remedies or relief available to it (including, without limitation, damages at law), shall be entitled to preliminary and permanent injunctive or other equitable relief against any breach or threatened breach by the Vendor, including legal costs of the College pertaining to the enforcement of the terms of this Article 12. The parties further agree that, in the event any provision of sections 12.1 and 12.2 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time or too great a range of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.

12.3

This Article 12 shall survive the expiry or early termination of this Agreement.

13. TERMINATION

13.1

Suspend Services. The College may, for its convenience and at its sole and unfettered discretion, delay or suspend Vendor’s performance of any or all of the Services, by giving three (3) days’ notice to Vendor. Vendor acknowledges and agrees no liabilities, claims, costs, expenses or damages shall flow or otherwise be attributed to the College for such suspensions.

13.2

Termination for Convenience. Either party hereto may, for its convenience, unilaterally terminate this Agreement by giving fifteen (15) days’ notice to the other party.

13.3

Resume Performance. Vendor shall cease to perform the Services upon receipt of a notice pursuant to section 13.1 hereof. At the College’s request, Vendor shall resume performance of the Services as soon as reasonably possible following a delay or suspension.

13.4

Termination for Breach. The College may terminate this Agreement immediately by oral or written notice to the Vendor in the event:

the College has reason to believe the Vendor or any of its employees, agents, sub-contractors or persons for whom it is responsible at law, while engaged in carrying out Services is in violation of any laws, rules or regulations of any applicable governmental agency, including without limitation, safety related legislation;
for any material breach of any term or condition of the Agreement or any corporate policies or procedures or security policies of the College;
use of illegal drugs or substances while engaged in carrying out the Services;
any deliberate or negligent act or omission of the Vendor;
the Vendor becomes insolvent or bankrupt or makes a proposal or files an assignment for the benefit of creditors under the Bankruptcy and Insolvency Act (Canada) or similar legislation in Canada;
steps are taken under any legislation by or against the Vendor seeking its liquidation, winding-up, dissolution or reorganization or any arrangement or composition of its debts; or
the Vendor takes any action which would cause unreasonable harm to the College.

13.5

Effect of Termination. In the event of termination of this Agreement by either party, the following procedure shall be followed:

The Vendor shall immediately return to the College all equipment and Confidential Information set forth in section 12.1 of this Agreement which is in the possession of the Vendor and its directors, officers, employees, agents, sub-contractors and other persons for whom it is responsible at law. For greater certainty, this shall specifically include any laptop, vehicle or other equipment either provided by the College to the Vendor or paid for by the College and used by the Vendor;
The College shall compensate Vendor for direct costs and expenses actually incurred by Vendor up to the date of termination;
The College may delay or defer payment of any amount due and owing to the Vendor until such time as the Vendor shall have fully complied with the foregoing and all other provisions of this Agreement; and
The expiry or termination of this Agreement shall not affect or prejudice any rights or obligations that have accrued or arisen under the Agreement prior to the time of expiry or termination, and those rights and obligations shall survive such expiry or termination.

13.6

Release. Upon termination of this Agreement and Vendor’s engagement with the College pursuant to sections 13.2 and 13.4, the Vendor and its directors, officers, agents, Vendors, employees, insurers, administrators and assigns shall not be entitled to any further, severance pay or pay in lieu of notice or other allowances or damages of any kind (except for fees and expenses payable for Services provided) and Vendor shall and does hereby remise, release, acquit, indemnify and discharge the College and its respective directors, officers, employees, insurers and agents of and from any and all liabilities, claims, costs, expenses or damages arising from the termination of this Agreement as per sections 13.2 and 13.4 of this Agreement.

14. FORCE MAJEURE

14.1

Neither Party shall be liable for failure to perform any of its obligations under this Agreement, if and to the extent its performance is prevented, hindered or delayed by a Force Majeure event. The occurrence of a Force Majeure event shall not release the affected Party from its obligations under this Agreement, but shall merely suspend the performance of any obligation so prevented, hindered or delayed during the period of continuance of the Force Majeure event.

14.2

In every case the Party alleging a circumstance of Force Majeure event shall take reasonable action and undertake reasonably necessary measures to mitigate the effects of the Force Majeure and to resume, as soon as reasonably possible, the performance of those of its obligations under this Agreement affected by the Force Majeure event, including having in place disaster recovery and business recovery plans.

14.3

If an event of Force Majeure results in the Vendor being unable to perform its obligations under this Agreement for more than thirty (30) days, the College shall have the right to terminate the entire Agreement, or such portion thereof that was affected by the Force Majeure event, forthwith for cause and, at its option, procure the Product elsewhere.

15. RIGHT TO SETOFF

15.1

The College, without waiver or limitation of any of its rights or remedies, and without liability for interest, shall be entitled from time to time to deduct from any amounts due or owing by the College to the Vendor in connection with this Agreement, any and all amounts owed by the Vendor to the College , including:

for any matter which may be in dispute between the Parties until the dispute is settled;
for any claims or liabilities which may be the basis of a claim made by a third party against the College; or
for any default or deemed default by the Vendor of any of its obligations under this Agreement.

16. NOTICES

16.1

When any notice is required or permitted to be given under any provision of this Agreement, such notice shall be made in writing and signed by or on behalf of the Party giving such notice to the following addresses for the College:

Red River College
Procurement & Logistics Services
B183- 2055 Notre Dame Ave
Winnipeg, Manitoba, Canada R3H 0J9

with a copy to:

Legal Services

C409 – 2055 Notre Dame Ave
Winnipeg, Manitoba, Canada R3H 0J9
Attention: General Counsel

Vendor

At the address detailed in its invoice or failing which, at their corporate head office or to such other address or facsimile number as a Party may from time to time direct in writing.

16.2

Any notice delivered before 4:00 p.m. local time on a Business Day shall be deemed to have been received on the date of delivery and any notice delivered after 4:00 p.m. local time on a Business Day, or delivered on a day other than a Business Day, shall be deemed to have been received on the next Business Day. No notice will be deemed to have been received until actually received.

16.3

Both Parties acknowledge that electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Parties shall not have any liability to each other arising from or in connection with the electronic communication of information. Both Parties, acting reasonably, shall assess whether to use hard copy transmission for information that relates to a matter of significance.

17. GENERAL

17.1

All dollar amounts referred to in this Agreement shall be in Canadian funds.

17.2

Time shall be of the essence of this Agreement.

17.3

This Agreement shall be governed by and construed in accordance with the laws of the province of Manitoba and the applicable laws of Canada. The courts having jurisdiction in the province of Manitoba shall have exclusive jurisdiction in relation to any legal proceedings arising in connection with this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and shall be disclaimed and excluded from any contracts placed by the Vendor with its sub-Vendors.

17.4

Any reference to a statute in this Agreement will be deemed to refer to the statute and the regulations made thereunder in force as at the date hereof, as the same may be subsequently amended, expanded, added to, supplemented or changed or replaced from time to time, unless otherwise expressly provided in this Agreement.

17.5

Limitation on Publication. The Vendor shall not publish or submit for publication any article, press release, or other writing relating to the Services for the College without prior review and written permission by the College.

17.6

Any reference to policies or procedures of the College will be deemed to refer to the policies or procedures in force as at the date hereof, as the same may be subsequently amended, expanded, added to, supplemented or changed or replaced from time to time.

17.7

The Vendor shall abide by and ensure that all of its employees and/or sub-contractors and their employees abide by all policies, rules and regulations related to security and comportment while on College.

17.8

Each Party agrees to do all acts and things and execute all deeds, instruments, transfers and other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

17.9

No remedy conferred upon a Party is intended to be exclusive of any other remedy available to that Party but each remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing by law or in equity or by statute.

17.10

In the event any provision, or any part or portion of any provision of this Agreement shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.

17.11

No waiver by the College of any provision of this Agreement shall be deemed to constitute a waiver of any other provision of this Agreement, nor shall such waiver be binding unless executed in writing by the College. No failure on the part of the College to exercise, and no delay by the College in exercising any right under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise by the College of any such right preclude any other or further exercise of such right or the exercise of any other right.

17.12

No portion of this Agreement shall be assigned, subcontracted or delegated by the Vendor without the College’s prior written consent, which consent may be arbitrarily withheld. If the Vendor is a corporation, then any change in control of such corporation shall and is hereby deemed to be an assignment of this Agreement and subject to terms of this Agreement. Any unauthorized assignment, subcontracting or delegation shall be void. Notwithstanding any permitted assignment, subcontracting or delegation, the Vendor shall remain liable for the performance of the Vendor’s obligations under this Agreement unless otherwise agreed to in writing by the College.

17.13

This Agreement shall be for the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.

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