SERVICES
PAYMENT
STATUS OF CONTRACTOR
TERM AND TERMINATION
WORK PRODUCT
21. The product Services including, without limitation, all works, reports, writings, documents, designs, specifications, data, software, findings, inventions and other information, materials or deliverables, created by the Contractor and/or provided by the Contractor under this agreement (“Work Product”) will be the sole and exclusive property of CAFN. Without limiting the generality of the foregoing, CAFN will be the sole owner of, and the Contractor hereby assigns and agrees to assign, all rights in and to the Work Product including patents, trade secret rights, copyright and other proprietary rights, whether or not those rights exist or come into existence hereafter and whether those rights are now known, recognized or contemplated. Subject to Section 26 below, upon completion of the Services, the Contractor may retain one copy of the Work Product. The Contractor will keep the Work Product strictly confidential and will not be entitled to sell, or otherwise transfer, the Work Product to any third party or make any use whatsoever of the Work Product. The Contractor will cause its employees and any permitted subcontractors to strictly comply with the terms of this section.
22. The Contractor will execute and deliver to CAFN all instruments and take any other actions that CAFN may reasonably require, including, without limitation, obtaining express and irrevocable waivers of moral rights from all individuals involved in the performance of this agreement, to effect, perfect, register, or record its interest in the Work Product or give full effect to this agreement at any time during the term of this agreement or after termination of this agreement. CAFN will pay the Contractor’s reasonable expenses in doing so.
23. The Service and the Work Product will be developed by the Contractor especially for CAFN. Neither the Services nor the Work Product will infringe upon any patent, copyright, licence, trade secret or other proprietary right of any third party. The Contractor will indemnify, defend (at CAFN’s option), and hold the CAFN free and harmless from any cost (including legal fees of a solicitor and own client basis), expense, loss, obligation or damage suffered or incurred by CAFN as a result of any suit, proceeding or otherwise to the extent that they are based upon a claim that any portion of the Services or Work Product infringes any patent, copyright, licence, trade secret or other right.
CONFIDENTIALITY
24. For the purposes of this Agreement, “Confidential Information” means all technical, corporate, financial and economic, legal and other information or knowledge generally concerning CAFN or any of its entities, or other parties in which it has an interest, and includes this agreement, the Services or Work Product, whether disclosed orally, or in the form of written material, computer data or programs, and incudes information respecting models, mechanisms, processes, photographs, intellectual property, know-how, trade secrets or otherwise, however obtained, and whether obtained before or after the execution of this agreement, but does not include information that:
a. is disclosed lawfully to the Contractor by a third party who has no obligation of confidentiality to CAFN with respect to the disclosed information;
b. is or becomes generally known to the public, other than by breach by the Contractor of its obligations under this agreement or;
c. is already known by the Contractor before disclosure by CAFN under the agreement, as evidenced by the written records of the Contractor, and which is not the subject of a previous confidentiality agreement between the parties.
25. The Contractor will maintain the Confidential Information in strict confidence and will not disclose that information to any subcontractor or employee, except to the extent necessary to perform the Services, or to any third party, except with the prior written consent of CAFN. The Contractor agrees that it will inform its subcontractors and employees performing the Services of the confidential nature of the Confidential Information and will ensure that those subcontractors and employees maintain the confidentiality of the Confidential Information in accordance with the terms of this agreement. If requested by CAFN, the Contractor will cause each of its subcontractors and employees, and any third party to whom the Confidential Information is disclosed with the consent of CAFN, to execute and deliver to CAFN a written confidentiality agreement in favour of CAFN upon the terms and conditions substantially as set out in this section and as approved in writing by CAFN.
26. Upon termination of this agreement or otherwise upon the request of CAFN, the Contractor will deliver to CAFN all copies, whether written, in the form of computer data or otherwise, as reasonably required by CAFN, of all Confidential Information in the possession of the Contractor or other parties to whom the Contractor has provided Confidential Information in accordance with this agreement. Subject to this section, any parties to whom the Contractor has provided Confidential Information in accordance with this agreement will not retain copies of any Confidential Information. The Contractor may, subject to its confidentiality obligations herein, retain one copy of the Confidential Information, in a secure location, for the sole purpose of confirming compliance with its obligations pursuant to this agreement and with any applicable registered professional associations and for no other purpose. For greater certainty, the Contractor shall not use the Confidential Information, including, without limitation, the Work Product for any other purpose.
INSURANCE, INDEMNIFICATION AND LIMITATION OF LIABILITY
27. The Contractor shall provide and maintain professional liability insurance or such other general liability insurance as CAFN may require for the protection against any claims relating to the Services.
28. The Contractor shall fully indemnify, defend (at CAFN’s option) and save harmless CAFN, its contract personnel, representatives, agents and employees from and against all claims, liabilities, loss, damages, demands or costs (including legal costs) to the extent arising from or related to:
a. any act or omission of the Contractor in performing its obligations under this agreement;
b. errors or negligent acts by the Contractor;
c. breach of this agreement, breach of any statutory or professional duty by the Contractor and;
d. any injury (including death) to persons, damage to or loss of property, damage to the environment,
infringement of rights (including intellectual property rights or any claims, liabilities, demands or costs whatsoever to the extent arising from or related to the fault or legal responsibility of the Contractor.
For greater certainty, the term “Contractor” for the purposes of this indemnity clause includes the Contractor and its officers, employees, permitted subcontractors, agents and successors or permitted assigns. This indemnity clause survives the expiry or termination of this agreement.
29. Subject to this section, the Contractor’s liability for damages and costs which CAFN may have against it or its affiliates, directors, officers, employees, contract personnel and representatives under this agreement or in any way related to the Services, whether such damages, liabilities and costs arise in contract, tort or under any other theory of liability, shall be limited to three (3) times the aggregate amount payable by CAFN in consideration of this agreement. CAFN’s liability for damages and costs which the Contractor may have against it or its employees, contract personnel, representatives and agents under this agreement or in any way related to the Services, whether such damages, liabilities and costs arise in contract, tort, negligence or under any other theory of liability, shall be limited to the aggregate amount payable by CAFN in consideration of this agreement. Subject to this section, the parties shall in no case be liable for indirect or exemplary damages or for damages for loss of profits or income, loss of clients, loss of reputation, loss of financing or loss of business opportunity. Notwithstanding the foregoing, nothing in this agreement shall limit the Contractor’s liability for:
a. negligence, fraud or willful misconduct;
b. loss or damage to property or injury to or the deaths of any person(s);
c. the Contractor’s indemnities herein or;
d. any damages or other amounts for which the Contractor has insurance coverage or professional
liability coverage.
GENERAL
CHAMPAGNE AND AISHIHIK FIRST NATIONS:
FOR THE COMPANY:
OATH OF CONFIDENTIALITY