Professional Services Agreement

BETWEEN: CHAMPAGNE & AISHIHIK FIRST NATIONS, a Yukon First Nation within the meaning of the First Nations (Yukon) Self-Government Act, with an office at #1 Allen Place, Box 5310 Haines Junction, YT Y0B 1L0.
("CAFN")

AND:

services and CAFN wishes to engage the Contractor to provide certain services, as set out below;

NOW THEREFORE, the parties agree:

SERVICES

(the “Service(s)”) for CAFN:

3. CAFN shall pay the Contractor as follows:

5. CAFN shall pay such compensation, together with any GST or other applicable value added tax within 30 daysof receipt of the invoice. The Contractor shall provide its GST registration number on all invoices.

6. It is a term of every contract with CAFN that money that becomes due under the contract is not payable unless a provision of the CAFN Financial Administration Act, or another enactment of the CAFN or the annual approved budget of CAFN authorizes the payment to be made in the fiscal year in which the payment falls due.

7. CAFN may deduct any monies owed by the Contractor to CAFN under this or any other agreement against any payment due to the Contractor.

8. The Contractor agrees that the Contractor is an independent contractor and not an employee of CAFN. The Contractor understands and agrees that CAFN shall not be responsible for paying withholding taxes, license fees, workers compensation premiums, unemployment insurance payments or any other payroll deductions required by law.

9. The Contractor shall be responsible for providing its own materials and equipment.

10. The Contractor shall obtain and remain either registered and in good standing with the appropriate worker’s compensation agency or exempt from worker’s compensation legislation in the location in which Services are rendered for the term of this agreement. The Contractor shall provide evidence of compliance or exemption at the request of CAFN.

11. Notwithstanding anything to the contrary in this agreement, CAFN may retain the amount of any assessment or contribution required to be paid by CAFN pursuant to the applicable workers’ compensation legislation as a result of the Contractor’s failure to pay such assessments or contributions.

12. The Contractor represents and warrants that it is and will remain for the term of this agreement a member in good standing of any required membership body or professional designation. Services performed will be of professional quality and consistent with generally accepted industry standards.

13. The Contractor is not aware of any actual or potential conflict of interest in providing the Services under this agreement. The Contractor and its directors, officers, employees, agents, and permitted subcontractors shall avoid any conflict of interest in the provision of the Services. If the Contractor discovers that an actual or potential conflict of interest arises during the provision of the Services, the Contractor shall immediately notify CAFN of such conflict of interest and shall comply with any requirements reasonably prescribed by CAFN to rectify the conflict of interest. CAFN may terminate this agreement, without any liability, immediately upon written notice to the Contractor if:
a. the Contractor fails to notify CAFN of an actual or potential conflict of interest;
b. the Contractor fails to rectify a conflict of interest as reasonably prescribed by CAFN or;
c. the conflict of interest cannot be rectified.

14. Time is of the essence of this agreement and if either party fail to perform the covenants on their part to be performed at the times fixed for performance under the terms of this agreement, the other party may elect to terminate this agreement.

15. Either party to this agreement may terminate the contract immediately in the event of a material breach by the other party of its obligations hereunder, including any of the representations, warranties and covenants hereunder, provided that such breach is not cured within thirty (30) days’ of notice to the other party of the breach.

16. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy or if the other party becomes insolvent and cannot pay its debts when they are due.

17. The death or incapacity of the Contractor shall terminate the agreement as of the date of death or incapacity.

18. Both parties may agree in writing to terminate this agreement for any reason.

19. Any work done up to the termination date will be provided to CAFN before or on the termination date.

20. CAFN will pay the Contractor’s reasonable expenses for work completed satisfactorily up to the termination date.

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.

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.

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.

30. This agreement shall be governed by and construed in accordance with the laws of the Yukon Territory and the Champagne and Aishihik First Nations.

31. The Contractor may not assign or subcontract its obligation under this agreement without the prior written consent of CAFN. The Contractor will be responsible for any permitted subcontractors.

32. This agreement shall enure to the benefit of and be binding on the parties and their respective successors and permitted assigns.

33. Any provision of this agreement which is accrued but not discharged shall not be effected by termination of this agreement.

34. The headings in this agreement are for convenience of reference only and shall not affect the construction or interpretation of this agreement.

35. The Contractor acknowledges reading and understanding this agreement and agrees to be bound by its terms and conditions. Further, the Contractor agrees that it is the complete statement of the agreement between the parties and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this agreement

CHAMPAGNE AND AISHIHIK FIRST NATIONS:

In recognition of the compensation and other rights and benefits provided to me as a Consultant/Contractor for the Champagne and Aishihik First Nations and/or any one of its subsidiaries or sister companies. I HEREBY SOLEMNLY DECLARE that I will preserve and maintain the confidentiality and secrecy of all the business dealings, affairs, records, reports and information available or otherwise known to me in the course of my past, present, and future work with Champagne and Aishihik First Nations and/or its subsidiaries or sister companies.

Specifically, I will not at any time or under any circumstances or in any manner, make known to any non-eligible person, persons, or organizations, the information and transactions of the Champagne and Aishihik First Nations and/or any of its subsidiaries relating to my work or otherwise known to me except as authorized by the First Nations Council. Further, I will adhere to this Oath of secrecy after leaving their service.